Travelers' Information Stations: To Filter (above 5 kHz) or Not to Filter, THAT is the Question

Comments have been invited on an NAB/SBE proposal aimed at (slightly) improving the audio quality on the TIS without interfering with AM stations.

Last July we blogged about changes the Commission had adopted to improve Travelers' Information Stations (TIS). At that time, the FCC proposed another fairly drastic change – the elimination of certain filtering requirements – that might potentially improve the service. The proposal went farther than some commenters thought advisable, which prompted them to propose a more moderate approach and, in response, the Public Safety and Homeland Security Bureau has now issued a Public Notice seeking further comment. (The Bureau probably could have skipped this step, but this writer thinks it’s a good thing they didn’t.)

TIS are low-power AM stations broadcasting information of interest to motorists, including traffic and road conditions, travel advisories, hazards, directions and the like. Each station covers only a small geographic area, most commonly along major highways and near tourist destinations.

AM service is notoriously interference-prone, with TIS as a potential source. The interference occurs because of the “sideband” portion of the TIS-transmitted AM signal. Excessively wide sidebands can cross over into another station’s channel, causing interference to that station. With AM stations – whose signals, particularly at night, can extend for hundreds of miles – this can cause big problems.

Continue Reading...

Forgotten But Not Gone: Annual Broadcast Employment Form 395-B Re-Surfaces

A Federal Register notice suggests that the FCC may be thinking about re-imposing the Form 395-B requirement – but the notice neglects a couple of problems.

It’s baaaack – maybe. The Commission’s decade-dormant annual employment report form has stirred. In a Federal Register notice the FCC has advised that it is cranking up the process (mandated by the hilariously-named Paperwork Reduction Act) to secure the approval of the Office of Management and Budget (OMB) to continue to keep Form 395-B in the FCC’s roster of forms.

There are multiple problems here.

As longtime Commission watchers may recall, Form 395-B calls for broadcast stations to provide information, annually, detailing the racial, ethnic and gender composition of their full-time and part-time staff according to job category. If you’re a recent arrival to the broadcast industry – “recent” being within the last 15 years or so – you may not be familiar with Form 395-B. You can read about the history in this post of ours from last year.

Continue Reading...

Update: Comment Deadlines Set re Proposed Elimination of Network Non-Dupe and Syndex rules

Last week we reported on the FCC’s Report and Order and Further Notice of Proposed Rulemaking, the “proposed rulemaking” component of which sought comments on the possible elimination of the Commission’s existing network non-duplication and syndicated exclusivity rules. (Those rules allow broadcasters to ask the Commission to enforce exclusivity rights granted in network affiliation or syndication agreements. While not themselves establishing such rights, the FCC’s rules do set out the maximum areas in which such rights may be granted, and provide a framework through which broadcasters can enforce those rights to prohibit MVPDs from importing distant signals.) The Further Notice of Proposed Rulemaking has now been published in the Federal Register, so we now know the deadlines for comments on the proposal. Comments may be filed by May 12, 2014 and replies by June 9. Comments may be uploaded at the FCC’s ECFS filing site; the relevant “Proceeding Number” is 10-71.

Free Webinar on Aereo - April 16

Live on the Intertubes: Kevin (“The Swami”) Goldberg and Harry (“The Blogmeister”) Cole, recapping the Aereo story on (almost) the eve of the Supreme Court argument.

Hey, CommLawBlog readers (you know who you are)! Kevin Goldberg (a/k/a/ the Swami) and Harry Cole (a/k/a the Blogmeister) have put up scads of posts here covering the ongoing drama of Aereo vs. the Broadcasters (and its various spin-offs, including Aereo: Los Angeles, better known as Aereokiller vs. the Broadcasters). You’ve been reading their stuff for years – now you can listen to them, too!

Back in December, Kevin speculated that we could be seeing Aereo Armageddon sooner rather than later in the form of a Supreme Court showdown. And sure enough (we don’t call him the Swami for nothing), that showdown is on the Court’s schedule for April 22, when Aereo and its various nemeses are set to face off in an epic oral argument before the Supremes.

The outcome – likely to be decided by the end of June – could have a major impact on the Future of Broadcast Television (as well as other incidentals, like the Future of Cloud Computing). Suffice it to say, we can expect the argument and its aftermath to be big news.

To help make sense of it all before the argument – and to help make sense of the argument once it happens – Kevin and Harry will be presenting a FREE webinar on Wednesday, April 16 at 3:00 p.m. ET to review and explain the legal issues and judicial decisions that have brought Aereo to the Supreme Court. Their goal will be to provide attendees background to help them understand the arguments before – and the ultimate decision of – the Court. They’ll track the legal history from which Aereo emerged, sort out the various different lawsuits that have cropped up across the country, and look at possible outcomes.

You can register to attend the free 75-minute webinar by clicking on the link below. Space is limited and registration is available on a first-come, first-served basis only.


(Messrs. K and H assure the public their production will be second to none . . .)

TV Online Public File Update: Political File Exemption Set to Expire as of July 1

Media Bureau “reminder” seems to eliminate any hope of extension of exemption for non-Top Four affiliates outside of top 50 DMAs.

If you’re a TV licensee who doesn’t happen to be either (a) in any of the top 50 DMAs or (b) affiliated with one of the top four commercial networks (ABC, CBS, FOX and NBC), we’ve got some news for you: it looks like you’ll be having to upload all your new (but none of your old) political file data to your online public inspection file starting July 1, 2014.

That, at least, is the unmistakable take-away message from a public notice issued by the Media Bureau.

The notice reminds one and all of a wrinkle the Commission included when it imposed the online public file requirement for TV licensees back in 2012. At that time, the obligation to upload the political file component of each station’s public file was limited to Top Four affiliates in the top 50 DMAs. All other stations were still required to maintain a political public file, but only on paper, as they had done for years.

In 2012, the Commission said the exemption would be good only until July 1, 2014. BUT the FCC held out at least a glimmer of hope that the exemption might be extended: in 2013 the Media Bureau was to invite comments on whether “any changes [to the online political file rule] should be made before it takes effect for the other stations.” The Bureau dutifully solicited comments in June, 2013 and, as we reported last year, the response was less than overwhelming.

Continue Reading...

Update: Comment Deadlines Set in Emergency Signalling Devices Proceeding

A week or two ago we reported on a Notice of Proposed Rulemaking (NPRM) in which the FCC is proposing changes to a number of rules relating to emergency signaling devices. The NPRM has now made it into the Federal Register, which means that we now know the comment deadlines. If you are planning to chip in your two cents’ worth, you’ve got until June 2, 2014 to file comments, and June 30 for replies. You can file comments by going to this FCC site and uploading your comments in Proceeding Number 14-36.

Non-English EAS Update: Deadlines Set for Refreshing the Record

Earlier this month we reported on the FCC’s invitation for comments to “refresh the record” with respect to the MMTC suggestion that broadcasters should adopt a “designated hitter” approach to assure that EAS announcements are broadcast in foreign languages, particularly when non-English speaking folks comprise a significant portion of the market’s population. The invitation has now been published in the Federal Register, which sets the deadlines for comments. If you are inclined to accept the FCC’s invitation, you have until April 28, 2014 to get your comments in; replies may be filed by May 12.

E911 Update: Third Further NPRM Comment Deadlines Set

Earlier this month we reported on the FCC’s Third Further Notice of Proposed Rulemaking (NPRM) in its effort to improve E911 location capabilities. The NPRM has now made it into the Federal Register, as a result of which we now know the comment deadlines. Comments in response to the NPRM may be filed by May 12, 2014 and replies by June 11.

TV Repacking Update: Widelity's Price List, and Itinerary, for the Road Ahead

What will channel repacking require in money and effort? FCC-commissioned report itemizes licensees’ anticipated costs of repacking, likely steps toward completion, probable sticking points.

The incentive auction and related spectrum repacking are coming. If you’re a TV licensee and you’ve avoided thinking about what might happen to you when the repacking happens, it’s time to get off the dime. The repacking is approaching. You will need to be ready when it arrives.

To remind us all of that fact, the Commission has released a report providing a reasonably clear, if unpleasant, glimpse of the practical tasks the TV industry has to look forward to.

The Commission hired Widelity, Inc., a communications consulting firm, last September to give the agency, and the TV industry, a better idea of the steps that licensees will need to take, and the expenses they’re likely to face, in carrying out the coming spectrum repacking. The report is the result of Widelity’s efforts. (If you’re fuzzy on the whole repacking idea, take a look at our series on the incentive auction, particularly this post and this post.)

The short version of the bad news: the per station repacking process is likely to cost anywhere from the mid-six figures (in uncomplicated TV markets) to eight figures in the largest urban areas. It’s likely to drag on for at least the better part of a year in even the simplest case and could stretch out for several years in others (and those estimates all assume – unrealistically – that no glitches crop up). And it’s likely to be subject to a wide variety of practical problems.

Continue Reading...

The Future of Music Licensing?

Major overhaul of all music licensing may be in the offing as Copyright Office opens far-ranging inquiry.

Congress could not have foreseen all of today’s technologies and the myriad ways consumers and others engage with creative works in the digital environment. Perhaps nowhere has the landscape been as significantly altered as in the realm of music.

With that observation nestled in the opening paragraph of a Notice of Inquiry (NOI), the Copyright Office (CO) has kicked off a wide-ranging evaluation of “the effectiveness of existing methods of licensing music”. The CO’s study could eventually have a dramatic impact on the uses and distribution of recorded music in all areas of American business and culture.

The CO’s statement quoted above is certainly accurate (although similar technological changes have transformed the delivery of video programming, too). Think about the changes in recorded music since 1976, when Congress last overhauled the Copyright Act. Where we had vinyl discs (33-1/3 LPs, 45s and maybe even 78s) in 1976, we’ve since run through eight-tracks, cassettes and CDs. And now we can obtain recorded music digitally from MP3 and Internet streaming and MP3s. Where we once received music via broadcast radio, we now have satellite and Internet radio.

Despite these wholesale changes, the process of licensing recorded music has remained largely static for decades. That’s why many music industry participants – including songwriters, recording artists, broadcasters, Internet radio services – agree that revision of the process is long overdue. 

Music licensing is complex. It includes multiple separate and distinct components that may not be immediately apparent to the casual observer. Anyone even tangentially interested in the CO’s study should read the CO’s NOI at least for background purposes. Before we look at the questions the CO has posed, let’s review the various components of music licensing.

Continue Reading...

Update: Reply Comment Deadline Extended in In-Flight Cell Phone Proceeding

Most readers will likely recall that, late last year, the FCC invited comments (and replies) on whether the Commission should lift its regulatory ban against cell phone use in airplanes. Not surprisingly, the FCC’s proposal attracted considerable attention. To date, more than 1,300 comments have already been filed in the docket.

Reply comments were originally due by March 17. Not anymore.

At the request of CTIA-The Wireless Association® and two aeronautics-related companies (AeroMobile Communications Limited and Panasonic Avionics Corporation), the deadline for replies has been extended a generous 60 days (to May 16, 2014). The extension will enable all parties to conduct further analyses and undertake further consultation relative to the thorny technical issues on the table. It will also give interested parties time to sift through the ever-growing pile of comments already submitted.

FCC Seeking Proposals for Rural Broadband Experiments

Some Connect America funding contemplated once policies, standards are set in second phase of proceeding.

The FCC is looking for proposals to bring advanced telecommunications services to rural Americans . . . and it’s planning on providing governmental cash to worthy proponents. To help it determine what projects will get funded and how much funding will be available, the Commission has launched a two-phase process. In the now-open first phase, prospective proponents have been invited to submit “expressions of interest” describing what they have in mind. In the second stage, the FCC will seek more detailed and definite applications, subject to resolution of certain policy issues in the Further Notice of Proposed Rulemaking (FNPRM) component of the Technology Transition Order. Comments on the FNPRM are due March 31. 

The Commission’s invitation is addressed to the widest range of communications service providers, including ILECs, CLECs, cable, utilities, fixed and mobile wireless, municipalities, Tribes, WISPs, and others. So if you’re interested in building high-speed, scalable IP-based networks in rural areas and maybe getting at least some federal funding in the process, listen up.

In its call for proposals, the FCC is focusing on proposals to build robust last-mile broadband, rather than middle mile projects. Proposed experiments described in expressions of interest must be for rural areas currently lacking Internet access service that delivers at least 3 Mbps downstream/768 kbps upstream.

The major goal here is to determine how the use of “tailored economic incentives” might encourage the deployment of next gen networks, wireline and wireless, in rural, high cost areas to which such networks have historically been slow to spread. In the FCC’s words, the experiment will “test, on a limited scale, the use of an application-based competitive bidding process with objective selection criteria”.

The Commission is currently considering what mechanism(s) to use in the award of Connect America funding support in price cap territories where the incumbent declines the offer of model-based support. One possibility would be for the FCC to use application-based competitive bidding, rather than a reverse auction. Another innovation: while such funding has previously been available only in areas served by price cap incumbent local exchange carriers, in this program it will also be made available in areas where the incumbent is a rate-of-return carrier.

Continue Reading...

Update: Appeal Clock Starts for Class A and LPTV Digital Construction Deadlines

FCC’s September, 2013 denial of reconsideration finally makes it to the Federal Register

While the transition of full-power TV stations from analog to digital occurred nearly five years ago, the DTV transition for Class A and LPTV stations is still far from complete. In 2011 the FCC set deadlines for the construction of Class A and LPTV stations and the termination of all LPTV operation on Channels 52 and above. (Read out post about that decision here.) And as we reported last September, the Commission denied reconsideration of that decision.

For unexplained reasons, the order denying reconsideration was not published in the Federal Register . . . until now. Its publication there on March 6 starts the 60-day clock for seeking judicial review of the deadline rules. In other words, May 5, 2014 is the last day for getting to the court house.

For anyone who might (understandably) have lost track of this proceeding in the five months or so since the FCC formally addressed it, here’s what’s on the table.

Continue Reading...

Update: Effective Date Set for New Level Probing Radar Rules

In January we reported on the adoption of new rules governing the use of level probing radar. The FCC’s Report and Order has now made it into the Federal Register, which establishes the effective date of the new rules. That date is April 7, 2014.

Update: Comment Deadlines Set in Proposed Text-to-911 Mandate Expansion

Last month we reported on an FCC proposal to expand its Text-to-911 mandate to include all texting service providers. That proposal has made it into the Federal Register. As a result, we now know that the deadline for comments on the proposal is April 4, 2014, and the deadline for reply comments is May 5. Comments and replies may be submitted electronically by uploading them at this FCC site; use Proceeding Number 11-153.

First IP Transition Experiment Proposal Out for Comment

First in the door with a proposal: Iowa Network Services, with the help of one of our Fletcher Heald colleagues

As we reported last month, in late January the FCC released its Technology Transitions Order inviting proposals for service-based experiments designed to gauge the effects likely to be encountered as we shift from the legacy telephone network to an all Internet Protocol (IP) alternative. The target deadline initially set for proposals was February 20. And with lightning speed, the very next day the Commission released a public notice seeking comment on the first proposal, which had been filed on February 20.

We are pleased to report that that proposal, filed by Iowa Network Services, Inc. (INS), was prepared by our colleague (and occasional CommLawBlog contributor) James Troup on behalf of INS, an FHH client.

INS operates a statewide Centralized Equal Access (CEA) network in Iowa comprised of more than 2,000 miles of fiber optic cable and dual tandem switches. The network allows INS to aggregate rural traffic, centralize the provisioning of expensive features and functionalities, and help bring the benefits of advanced communications services and competition to rural areas of Iowa. INS connects service providers to more than 300 rural exchanges.

Continue Reading...

Update: New Protections for AM Signals Now In Effect

OMB thumbs up clears path for rules adopted last August to kick in

Last August we reported on a decision by the Commission requiring ALL FCC-regulated services – broadcast and non-broadcast alike – to protect AM stations from signal distortion arising from construction or modification of nearby towers. (Reminder: The term “towers” in this context is broad and includes buildings or other structures on which a new or modified antenna or antenna-supporting structures are being installed.)

Because the new rules include “information collections”, their effectiveness had been deferred pending review by the Office of Management Budget (OMB) pursuant to the hilariously-named Paperwork Reduction Act.

The wait is now over. According to a notice in the Federal Register, OMB approved the rules on February 10, and as of February 20, 2014, they have become effective.

As we outlined in our post last August, the phase-in of the rules is somewhat complex, with some potential effects stretching over a year or two. AM stations and anyone building a structure near an AM station should take a close look at the rules to determine their potential impact on any particular situation.

Out for Comment: Globalstar Proposal to Expand ATC Operation

Shared use of adjacent 2473-2483.5 MHz unlicensed band could raise objections.

Last November, at the urging of Globalstar, Inc., the FCC proposed to modify the Ancillary Terrestrial Component (ATC) of the rules governing the Mobile-Satellite Service (MSS) system operating in the Big Low-Earth Orbit (LEO) S band. Now, after an inexplicable three-month delay, that proposal has made it into the Federal Register, so comment and reply comment deadlines have been set.

Globalstar is the licensee of a Big LEO S band MSS system. It proposes ATC use of its licensed 2483.5-2495 MHz spectrum for a low power broadband network. That is not especially controversial because use of satellite spectrum for ATC service has been approved by the FCC for more than a decade as a way of expanding the use of satellite spectrum for terrestrial communications while maintaining the primary usage for satellite service.

The quirk in Globalstar’s proposal is that it would incorporate the adjacent 2473-2483.5 MHz segment of the 2.4 GHz unlicensed band into its operation. While the 2.4 GHz unlicensed band as a whole is widely used for Wi-Fi and Bluetooth, this particular segment at the upper end is unused by standard Wi-Fi operations in the U.S. because of the need to protect Globalstar’s adjacent satellite operations. Globalstar figured it could appropriate, in a practical sense, that 11.5 MHz in order to give it an effective full 22 MHz of bandwidth for its terrestrial operations.

But there are some complications.

Continue Reading...

Update: Most, But Not All, New 911 Rules Now In Effect

Some reporting, record retention requirements still in limbo pending OMB approval

In December we reported on a new set of rigorous requirements for 911 system service providers. And as we reported last month, most – but not all – of the requirements were set to take effect on February 18, 2014. However, also as we reported last month, two of the new rule sections impose new “information collections”; before they can take effect, those two sections (Sections 12.4(c) and (d)(1)) must be run through the Office of Management and Budget (OMB), a process that generally takes several months.

What we did not report in January was the fact that two additional sections (Sections 12.4(d)(3) and 4.9(h)) also impose “information collections” and must, therefore, also be shipped over to OMB. (We didn’t report that in January because the FCC didn’t acknowledge that those two were in fact “information collections” until a corrective announcement in February.)

To recap, then, now that February 18 is here, all “Covered Service Providers” must take reasonable steps toward providing reliable 911 service by conducting network monitoring and circuit audits and insuring the availability of backup power at any central office that serves a public safety access point.

But until further notice from the FCC, “Covered Service Providers” are not required to submit their annual reliability certifications (Section 12.4(c)) or their initial reliability certifications (Section 12.4(d)(1)). They are also not required to comply with the record retention obligations of Section 12.4(d)(3) or to report on outages potentially affecting a special 911 facility (Seciton 4.9(h))..

In the Supreme Court: Aereo Argument Date Set

It’s official. The big day is April 22, 2014. That’s when the Supreme Court will hear oral argument in the Aereo case. From the calendar released by the Court, it looks like the argument will be the second of two on the card – but that’s subject to change. If you’re planning on attending the argument, expect to get to the Court early in the morning, stand in line for a long time, and probably sit through a case you know nothing about

Or you could just make a point of checking in with us for our post-argument take on things.

While predicting the final result in a case based on oral argument is an unreliable (at best) exercise, the exchanges between the Justices and counsel for the various parties invariably lend themselves to beaucoup speculation. And we here at CommLawBlog plan to be speculating with the rest of the crowd. The difference? We’ll have Swami Kevin Goldberg – no stranger to this kind of this – and his pal the Blogmeister (Harry Cole) doing the heavy lifting for us. Kevin and Harry are planning to attend the argument and to share their observations with our readers promptly thereafter. Stay tuned.

Update: Cell Signal Booster Marketing Deadline Extended

About a year ago we reported on the adoption of a new set of rules governing the use of cell phone boosters. In passing, we noted that all boosters marketed in the U.S. must comply with the new standards by March 1, 2014.

Not so fast.

Turns out that it was a bit trickier than expected to develop the test procedures necessary to ensure compliance. The task force designing those test procedures included members of the TCB Council, test labs, equipment manufacturers and representatives of the wireless industry. Despite that fact – or who knows, maybe because of it – the task force’s in-depth consideration of the process “revealed significant technical and policy issues”. The upshot: the test procedures weren’t finalized and published until last month. And without final test procedures, manufacturers weren’t in a position to finalize and submit applications to get their gear certified.

Now that the test procedures – which the FCC assures us are “more robust” and “comprehensive” – are in place, manufacturers have started to run their equipment through the process. But that takes time. As a result, the Commission has agreed to extend for 60 days, to and including April 30, 2014, the deadline by which all Consumer Signal Boosters marketed, distributed or sold in the United States must comply with Section 20.21 of the Commission’s rules. In the meantime, the restrictions on sale and marketing (set out in Section 20.21(g)) are being waived until April 30 as well.

AM Revitalization Update: Reply Comment Deadline Extended

If you were planning to file reply comments in the AM Revitalization proceeding and were getting worried about how you were going to work those into your schedule – what with Valentine’s Day and Presidents’ Day and all – you can breathe a bit easier. The deadline for replies has been extended a month, to March 20, 2014. That’s good news because a quick check on ECFS indicates that by February 7 there were already more than 150 items in the docket to which a replier might want to reply. Better get reading!

Reply comments may be filed electronically through ECFS beginning at this link; reference Proceeding Number 13-249.

Update: FCC Proposes Expansion of Text-to-911 Mandate to ALL Texting Service Providers

Comments sought on how and when text-to-911 should be required across-the-board, including by interconnected “over the top” services

Pity the poor FCC. Saddled with an outdated governing statute and limited resources, it’s supposed to regulate newly-minted whiz bang technologies that get embraced by the public seemingly before the FCC even learns about them. And when it tries to get ahead of the curve, it occasionally gets too far ahead. Case in point: its text-to-911 bounce-back rule for roaming customers. A great idea on paper but, as the FCC learned, beyond the capabilities of existing technology, the result being a last-minute revision to the rule last September.

Bloodied but unbowed, the FCC is again revising its text-to-911 rules in an apparent attempt to catch up with that “app” thing that all the kids are using. In a Policy Statement and Second Further Notice of Proposed Rulemaking (PS/SFNPRM) the Commission is proposing to require all interconnected text messaging services to enable consumers to send text message to 911. This would include texting apps that ride “over the top” (OTT) of the data services of wireless service providers. 

But this time, even the FCC recognizes that its ambitions may exceed present-day technical capabilities.

More than a year ago the Big Four wireless carriers (Verizon, AT&T, Sprint, and T-Mobile) agreed that, by May 15, 2014, they would provide text-to-911 service to Public Safety Answering Points (PSAPs) that are capable of, and that request to receive, such service. With text-to-911 capabilities for the Big Guys now just a few months away, the FCC has decided as a matter of policy that every CMRS carrier and every provider that enables interconnected texting should do this as well.

How and when that might happen is unclear.

Continue Reading...

Telecom Tickler 2014 - CPNI Certifications Due By March 3

It’s that time of year again – time for our annual reminder to all telecommunications carriers and interconnected VoIP providers that your CPNI certifications are due by March 3, 2014. While the Enforcement Bureau has announced the deadline as March 1, it appears not to have noticed that in 2014, March 1 is a Saturday. Thanks to our old friend Section 1.4(j) of the FCC's rules, when a filing deadline falls on a holiday -- and the rules do indeed specifically confirm that Saturdays are "holidays" -- the deadline rolls over to the next business day, which in this case will be Monday, March 3.

As described by the Enforcement Bureau, CPNI – Customer Proprietary Network Information to the uninitiated – includes “some of the most sensitive personal information that carriers have about their customers as a result of their business relationship”. Think phone numbers of calls made or received, or the frequency or duration of calls, etc. . . . basically the same stuff the NSA has apparently been collecting for years. While the NSA is not required to file CPNI certifications with the FCC, telecom carriers aren’t so lucky.

The Bureau has issued a convenient “Enforcement Advisory” to remind one and all of the fast-approaching March 3 deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like. The only noteworthy change from last year: the potential per-violation fine has risen to $160,000 (from last year’s $150,000), and the maximum potential fine for a continuing violation has been similarly jacked up, to $1,575,000 (from last year’s $1,500,000).

As those potential fines indicate, the Commission takes this reporting requirement very seriously. Historically it has doled out five-digit fines to non-compliant carriers. In fact, the FCC’s zeal is such that, in many instances, it has initiated forfeiture proceedings even against carriers who, as it turned out, had fully complied with the rules.

Continue Reading...

FCC Invites Experiments To Test Effects of All-IP Telephone Network.

Commission seeks data for critical policy dialogue; coming changes may particularly affect smaller carriers – and their customers.

Major changes are coming to the telephone system that provides the interconnected communications system on which American society has long depended. For more than 125 years that system has been based on a circuit-switched, mostly copper-wire-based public switched network (PSTN) – nowadays sometimes called a “Time Division Multiplex (TDM)” network. But networks based on Internet Protocol (IP) technology have begun to replace the PSTN. The FCC has now expressly acknowledged that the “the global multimedia communications infrastructure of the future” will consist of all-IP networks very different from the circuit-switched technology we have been used to since Alexander Graham Bell.

And with that acknowledgement, the FCC has now started to take steps to identify and assess the effects that the fundamental technological overhaul of our nationwide phone system are likely to have on phone companies, consumers, and the FCC’s own ability to achieve its statutory responsibilities.

To that end, the FCC has invited proposals for “service-based” experiments designed to illuminate and inform the transition to IP-based service. Reflecting the seriousness and urgency of its purpose, the FCC has set an unusually short deadline for the submission of the initial round of experiment proposals: they are due by February 20, 2014, a mere three weeks after the FCC’s call for those proposals. Potential experiment proponents will need to get moving quickly, as will parties wishing to comment on any proposals that are ultimately filed: comments are due by March 21.

Continue Reading...

Update: AM Auction Moves Ahead

FCC still on track for May, 2014 start-date.

The FCC has announced the final rules for its upcoming auction of 22 AM radio construction permits.                                               

As we reported last November, the auction – which is set for May, 2014 start date – involves applications filed a decade or so ago. In November, the FCC announced the eligible applications, the markets involved, and the proposed minimum bids for each market.  It also solicited comments on those minimum bids and the auction procedures to be used. 

In response, two applicants asked the Commission to remove their respective MX groups from the auction. Another applicant asked that the deadline for successful bidders to pony up their initial payments be delayed until the bidders can be reasonably sure that their proposed facilities will in fact be grantable – not an unreasonable concern. You can check out all the comments here. (Disclosure: a couple of our FHH colleagues, acting on behalf of one applicant, opposed the notion of removing its particular MX group from the auction.)

Tossing the various comments aside, the FCC declined to engage in any market carve-outs or payment postponements; instead, it’s full speed ahead toward the May auction. 

The suggestion that the down payment deadline be postponed serves as a reminder to potential bidders of the FCC’s rigid “Buyer Beware” policy. If you bid on a license that turns out to be useless, the FCC does not let you off the hook. As is customary in broadcast auction notices, seven paragraphs of the FCC’s most recent notice caution bidders – twice in bold type – that bidders are expected to do their own due diligence. Bidders are warned that they are “solely responsible” and that “the FCC makes no representations or warranties” about the permits on the block. If you’re a bidder, consider yourself warned.

Continue Reading...

Update: Comment Deadlines Set in Sports Blackout Proceeding

Late last year we reported on a Notice of Proposed Rulemaking (NPRM) casting considerable doubt on the future prospects of the sports blackout rule. The NPRM has made it into the Federal Register, so we now know the deadlines for comments and replies. If you want to toss your two cents’ worth in on the issues raised in the NPRM, you’ve got until February 24, 2014 to file comments and March 25 to file replies. You can do so by surfing over to the FCC’s ECFS electronic filing site and submitting them in Proceeding Number 12-3.

Annual Webcaster Wake-Up Call! SoundExchange Reports and Payments Due Soon

If you’re a webcaster, you’ve got until January 31 to wrap up your annual SoundExchange homework.

Webcasters take note: like last year, and the year before that – in fact, like every year starting back in 2009 – the annual January 31 SoundExchange deadline is once again looming.

This should not be news to anybody. We’ve provided an annual reminder about the deadline and all that it entails since 2009. And yet, every year, some webcasters don’t pay attention and miss the filing date. As a result, they may lose the ability to claim the “small broadcaster” or “noncommercial microcaster” status that reduces their obligations for the rest of the year. Worse, they could open themselves up to a very sharply worded letter from SoundExchange advising of potentially significant monetary penalties. Sure, those penalties may not reach the worst-case scenario ($150K per copyrighted work), but they will almost certainly exceed by a long shot what it would cost simply to comply with filing requirements on time.

So this year, let’s try not to be the guy who sleeps through the deadline.

The chores should be old hat to anyone who’s been webcasting for more than a year.

Continue Reading...

H Block Update: Last of the New Rules Now Effective

Back in July we reported on the adoption of new service rules to govern the H Block band. All but a small handful of those rules took effect in September, and one of the stragglers kicked in in November. According to a notice in the Federal Register, the Office of Management and Budget has now cleared the last of the rules, so with the publication of the Federal Register notice on January 17, 2014, they have become effective. According to the notice, OMB signed off on these rules on September 26, 2013; why it’s taken nearly four months for the Commission to publish a perfunctory notice reflecting that sign-off is a mystery. Whatever the reason, all of the new H Block rules are now in effect.

Update: Effective Date Set for Most New 911 System Service Provider Rules

Last month we reported on a new set of rigorous reporting requirements to which 911 system service providers will be subject. The Commission’s Report and Order laying out the new requirements has now been published in the Federal Register, which means that they will become effective as of February 18, 2014 – EXCEPT FOR new Sections 12.4(c) and (d)(1). Those sections – which include the specs for the new Annual Reliability Certification and Initial Reliability Certification – involve new “information collections” which must be run through the Paperwork Reduction Act drill before they can take effect. That process generally takes several months to complete. Check back here for updates.

Update: Comment Deadlines Set in In-Flight Cell Phone Proceeding

Cell phones on airplanes? Everybody seems to have an opinion about the FCC’s proposal (about which we reported last month) – and it seems to be the same opinion across the board.

Now the Commission’s Notice of Proposed Rulemaking (NPRM) has made it into the Federal Register, so we all have a deadline for making our feelings known to the Commission. To be sure, the fact that no deadline has heretofore been established hasn’t stopped folks from expressing their views: within the first month following release of the NPRM more than 400 comments had been filed. No, we didn’t read them all, but a spot check indicates that approximately all of them oppose giving a governmental green light to cell phone use in the air.

On the other hand, none of the comments we saw takes on the main issue the FCC has authority to decide: whether cell phones in the air will cause interference to cell service on the ground. If the answer is no, the FCC will have little choice but to drop its ban and let the airlines decide what kind of cabin environment they want in the air.

Still, it’s possible that the Commission’s proposal has some fans somewhere who will be moved to file, but from the response the NPRM has received so far, the boo-birds are likely to outnumber the cheerleaders by a whopping margin. But who knows? In any event, according to the Federal Register notice, comments must be filed by February 14, 2014; reply comments are due by March 17. If you’re inclined to chip in your two cents’ worth, just click on over to this link and submit in Docket No. 13-301.  (You can also file separate comments pursuant to the hilariously-named Paperwork Reduction Act; those go to the FCC, but at a separate address listed in the Federal Regiater notice; they're due by March 17, too.)

Comm Act Overhaul Underway . . . Sort of

Commerce, Communications Committee chairmen seek public input on fundamental questions about federal regulation of communications

It’s generally acknowledged that the Communications Act – first enacted four score years ago and not substantially updated in nearly 20 years – is ill-suited for regulation of the 21st Century communications landscape. And now two well-placed members of Congress have announced the start of an effort to update the Act and perhaps restructure the FCC itself.

Given the prominence of the folks making that announcement, anyone subject to the FCC’s regulatory reach should pay attention. But before you get overcome with visions of sweeping change just around the corner, it’s important to temper your expectations with a healthy splash of reality: any significant change to the Act that may occur isn’t likely to happen in the immediate future, if at all.

The two gentlemen responsible for the latest initiative are Fred Upton (R-MI) and Greg Walden (R-OR), the Chairs of, respectively, the House Energy and Commerce Committee and that Committee’s Communications and Technology Subcommittee. You can see them explain their plans in a 13-minute video posted on the Committee’s website. To summarize: Noting that (a) the FCC first opened its doors in the Great Depression and (b) the last time the Act was amended, 56 kb/s by dial-up modem was the state of the art, Upton and Walden sensibly feel that it’s time to talk about an update.

The emphasis, though, is more on the “talk” part than the “update” part.

Continue Reading...

Deadline for Hearing Aid Compatibility Status Reports Looms

Form 655’s are due January 15, 2014.

The FCC’s Enforcement Bureau has reminded wireless service providers – including resellers – that their hearing aid compatibility (HAC) reports (Form 655) are due to be filed by January 15, 2014. Since failure to file can lead to costly fines – starting at $6K per violation – it’s a good idea to get those reports in on time.

As a component of the FCC’s effort to assure that folks with hearing loss are afforded the safety and convenience benefits of wireless telephony, wireless service providers and handset manufacturers are subject to certain requirements: a minimum number of hearing aid-compatible handset models must be offered and/or a minimum percentage of all their models must be hearing aid-compatible, depending on a complex formula. Failure to meet the minimum requirements can net you a $15,000 penalty per month for each handset you’re short. (Hearing aid compatibility is rated on numerical scales that reflect how well the handset couples to hearing aids with a minimum of buzzing or other interference to the hearing aids.)

To help the FCC police compliance with that requirement, wireless service providers and manufacturers must submit annual status reports demonstrating (at least ideally) that they are meeting the minimum. Reports from wireless providers are due in January; manufacturers’ reports are due in July.

Continue Reading...

CRB Opens the Door on Web IV: The Future of Webcasting Royalty Rates for 2016-2020 Starts Now

CRB notice suggests possible shift in royalty rate calculation method, replacing per-performance mechanism with percentage-of-revenue approach.

The Copyright Royalty Board (CRB) has started on its quinquennial chore of establishing copyright royalty rates applicable to various non-interactive webcasters.  While the to-be-determined rates won’t kick in for another two years – they will apply to the period January 1, 2016-December 31, 2020 – the CRB is required by Congress to get the ball rolling by January 5, 2014, and the CRB has gotten itself in under the wire with a notice in the January 3 Federal Register inviting public participation in a new proceeding (dubbed “Web IV” by the CRB).

Web IV will set the rates for eligible nonsubscription and new subscription services (most of our readers, including just about all broadcasters engaged in webcasting, fall into the former).  And while the rate structure currently in place for the 2011-2015 term has been relatively complaint- and controversy-free, the CRB’s notice suggests that the CRB may be looking to take rate calculations in a different direction.  Rather than simply hit “repeat” and stick with the per-performance basis for rates all players have lived with for more than five years already, the CRB appears to have a percentage-of-revenue model in mind. At least that’s one possible reading of the questions laid out for comment by the CRB.

Continue Reading...

FCC Looking to Expand Closed Captioning Requirement for IP-Delivered Programming

Commission considers mandating captioning of video “clips”.

For the last year or so, the law has required a sizable chunk of U.S. video programming displayed on the Internet to be closed captioned. One type of programming has, however, been exempt from that requirement: video “clips” don’t need to be captioned, as opposed to “full-length” programming which, for the most part, does.

But now the FCC is considering closing that loophole, and the Media Bureau is looking for input to help in making the decision. If you have any information or thoughts to share, you’ve got until January 27, 2014 to let the Bureau know; reply comments can be filed until February 26.

Before delving into the specifics of the Bureau’s inquiry, let’s take a quick look at the Internet captioning requirements as they now stand.

Continue Reading...

Upcoming Webinar: Goldberg on Aereo

Aereo on the agenda: Where it’s been, where it’s going, where it’s taking the rest of us

If you’re interested in the ongoing Aereo saga – and the impact that it’s likely to have on communications law, copyright law and the video delivery business in general – check this out. FHH guru Kevin Goldberg (regular CommLawBlog readers may know him as “the Swami”) will be sharing his Aereo expertise in a webinar on January 16, 2014. Titled “Will Aereo Case Force a Rewrite of Communications and Copyright Laws?”, the gig is billed as a webinar for folks who advise communications and broadcasting companies, professionals involved in media ownership and regulation and intellectual property practitioners. It may even qualify for continuing legal education in some jurisdictions. Such a deal! The 90-minute affair, which is scheduled to start at 1:00 p.m., is sponsored by Bloomberg BNA.  Consult the registration page for information about admission fees (there are a couple of options), CLE details, other webinar panelists and the like.

Update: Effective Dates Announced for Some (but Not All) of the New Rural Call Completion Rules; Comment Deadlines set for Proposed Rules

Last month we reported on the Commission’s Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) aimed at addressing the problem of failed telephone calls placed to small towns or rural areas. The R&O/FNPRM has now made it into the Federal Register in two separate parts. The R&O portion includes the rules that the Commission has already adopted, and the FNPRM portion includes the further contemplated changes about which the FCC has invited comment.

Federal Register publication, of course, means that effective dates and comments deadlines have now been established.

According to the Register notice, the newly adopted rules will become effective on January 16, 2014. Before you mark your calendars, though, be advised that that date appears to apply only to Section 64.2101, which consists of definitions. Section 64.2201, which specifies ringing indication requirements, will not take effect until January 31, 2014, and the various retention and reporting requirements (set out in Sections 64.2103, 64.2105 and 64.2107) won’t take effect until further notice because they have to run past the Office of Management and Budget thanks to the Paperwork Reduction Act.

As far as the FNPRM is concerned, comments may be filed by January 16, 2014 and reply comments by February 18, 2014.

Incentive Auction Update: Add PEA to the Alphabet Soup Options for the 600 MHz Band

EA or CMA or MSA/RSA or CMA or . . . how about PEA? 

One of the crucial questions that the FCC must answer before it can get its Incentive Spectrum Auction off the ground is how it plans to sell 600 MHz licenses in the “forward” part of the auction.  In the Incentive Auction Notice of Proposed Rulemaking, the Commission indicated that it was initially leaning toward selling them based on Economic Areas (EAs), rather than larger pieces of real estate (e.g., nationwide licenses) or smaller alternatives (e.g., CEAs or MSA/RSAs).  (Fuzzy on the distinctions?  Check out the Blogmeister’s Sidebar at the end of this post for further information.)

But now the Wireless Telecommunications Bureau, at the prodding of the Competitive Carriers Association (CCA), is thinking that Partial Economic Areas (PEAs) might be the way to go, and it’s asking for input on the question.

This is a big deal.  Here’s why.

As most readers presumably know, the Incentive Auction will consist of two independent but interrelated elements: (1) the reverse auction, through which the FCC will “free up” spectrum by giving TV licensees cash to vacate their current channels; and (2) the forward auction, in which the FCC will sell off the spectrum freed up in the reverse auction.  (The cash generated by the latter will be used in part to pay broadcasters in the former.) The ultimate success or failure of the Incentive Auction will be measured in part by how much money the forward auction brings in.

Continue Reading...

Powerless Portals Pare Ownership Report Filing Period

Deadline trimmed by five hours.

Hey, all you procrastinating commercial broadcasters. You know who you are. Listen up. Even though the FCC gave you (and everybody else) an extra 18 days – to December 20 – to file your biennial Ownership Reports (FCC Form 323), that deadline has now been modified slightly. While ordinarily your reports could have been filed up to 11:59 p.m., we’re losing five hours this time around. The Commission has announced that Ownership Reports must be filed BEFORE 7:00 p.m. ET on December 20. It seems that power to the FCC’s headquarters is going to be turned off at that time, as required by the District of Columbia Fire Code. That’s going to take CDBS off-line. So in order to get your Ownership Report on file by the deadline, you’ve got to get it in before 7:00 p.m.

A number of us believe that CDBS has been running noticeably slower than usual over the last couple of weeks, which we suspect is the result of increased traffic from Form 323-related activity. Given that, and the recent experience with the LPFM filing window (during which some unspecified “technical issues” slowed CDBS to a crawl, necessitating a one-day extension of the window), we strongly recommend that folks who have not yet filed their Ownership Reports take steps to get them prepared and filed well in advance of the newly-tweaked deadline.

Incentive Auction Update: Projected Auction Date Moved into 2015

FCC Chairman moves the target date from 2014 to the “middle of 2015”, assures that all auctions systems will be “thoroughly tested”

Despite the FCC’s repeated insistence that it’s been on track to complete all the necessary prep work to conduct the Incentive Auction sometime in 2014, Chairman Wheeler has now taken the opportunity – in a blog posted on the FCC’s website – to throttle back that ambitious schedule. While Wheeler is less than specific about the likely timing of the auction, he is now expressing the belief that it can be held “in the middle of 2015”. 

Of course, in order to do that, the Commission will have to hit a number of milestones in terms of nitty-gritty preparation details along the way, as the Chairman acknowledges. We should get a better idea of precisely what those milestones are and when they might be met at the January, 2014 Commission meeting. That’s when the Incentive Auction Task Force is slated to make a presentation on its anticipated timeline for rolling out the auction.

The very rough roadmap sketched out by Wheeler in his blog post mentions an initial Report and Order establishing “policies” that should be ready for a Commission vote “in the spring” of next year.  That would be followed “in the second half” of 2014 by release of two public notices – an “Auction Comment Public Notice” and a “Procedures Public Notice” – designed to “provide additional details and seek comment on how the specific parts of the auction will actually function.” No other specifics (if you can call those vague references “specifics”) are laid out.

Continue Reading...

Update: Comment Deadlines Set in Wireless Infrastructure Rulemaking

In October we reported on a Notice of Proposed Rulemaking (NPRM), in which the Commission is exploring a host of potential measures to make it easier for wireless companies to build new infrastructure. The NPRM has now been published in the Federal Register, so the comment deadlines are established: if you want to file comments in response to the NPRM, you’ve got until February 3, 2014; reply comments are due by March 5.  To file online, start at this link and file in Docket No. 13-238.

LPFM Update: Audio Division Issues Progress Report, Road Map

Public notice suggests grants of singleton LPFM applications as early as January, 2014; Upcoming settlement, amendment opportunities also described

The LPFM juggernaut that has been moving forward with impressive speed all year seems, incredibly enough, to be gaining momentum.  Less than three weeks after the filing window slammed shut on new LPFM applications, the Audio Division has released a public notice providing a progress report and a road map for handling the 2,800 or so applications that were filed.  And that map seems to point to potential resolution of most applications in reasonably short order, some even as soon as next month.

All LPFM applicants, as well as anyone who might be affected by any of the applications, would do well to review the Division’s public notice carefully.

The good news for many: nearly one-third of the LPFM applications – approximately 900 – appear to be singletons.  The Division has made identification of all singletons its highest priority, and has already started to mark the ones it has so identified as “accepted for filing”, a status that starts the 30-day petition to deny period.  That means that, at least for some (if not most) of the singletons, the petition to deny period will expire in January, leaving applications that don’t attract any petitions potentially eligible for grant next month.

Meanwhile, the Division also expects to have bunched all non-singleton applications into their respective MX (for “mutually exclusive”) groups shortly.  Look for a public notice listing all MX groups by the end of this month.

Continue Reading...

More 411 on 844: New Toll Free Numbers Up For Grabs as of 12/7/13

With toll free numbers fast running out, FCC declines to delay roll out of new toll free code despite concerns about possible abuses.

If you’ve got your eye on a vanity toll free telephone number you’d like to use – or if you might want to expand an existing vanity number to include another toll free area code – listen up: New toll free area code 844 is about to make its debut. And now the FCC has announced how numbers in that area code are going to be assigned.

Last summer we wrote about the new toll-free code, which is set to become available at noon (ET) on December 7, 2013. At that point area code 844 will join the ranks of 888, 877, 866, and 855, along with the original toll-free 800 code. 

All toll free numbers are administered by SMS/800, Inc., which oversees the toll free Service Management System for the North American Numbering Plan. Entities known as “Responsible Organizations” – usually referred to simply as “RespOrgs” – can access the SMS/800 database and reserve particular numbers. If a subscriber wants a particular toll free number, it contacts a RespOrg, which in turn obtains the number for that subscriber from the database.  A RespOrg is not supposed to reserve any number unless the RespOrg is doing so at the specific request of a telephone subscriber.

Anticipating an initial rush for numbers using the new 844 code, the FCC asked for comment on how distribution of those numbers should be handled. Its conclusion: limit each RespOrg to 100 numbers per day for the first 30 days. (The FCC imposed a similar limit when area code 855 first came on line.) After the first 30 days, the usual rule will come back into effect for numbers in the 844 code: like other toll free numbers, they will be assigned on a first-come, first-served basis.

Continue Reading...

Update: Deadlines Set for Comments on Proposed CALM Act Rule Revisions

Earlier this month we reported on an Order and Further Notice of Proposed Rulemaking ( in which the FCC is looking to revise the rules the it adopted in 2011 – and that took effect in 2012 – pursuant to the CALM Act. That’s the 2010 law by which Congress hopes to eliminate LOUD COMMERCIALS from the TV airwaves. The Further Notice of Proposed Rulemaking portion of the Commission’s most recent action has now made it into the Federal Register, which establishes the comment and reply comment deadlines. If you plan to file comments in response to the Further Notice, you have until December 27, 2013. Reply comments are due by January 13, 2014.

Amateur Radio Association Seeks Faster Data Speeds

Proposed rule change would update 1980 provisions that limit radio-transmitted data rates.

The amateur radio community has come a long way since the early days of Morse code (even though, as recently as 2006, many amateurs opposed the FCC’s dropping a Morse code requirement). In fact Morse was the first popular form of digital radio transmission. But it was slow. Most amateurs, for most of the last century, preferred voice. Starting around the middle of the century, with the FCC’s blessing, a few amateurs began connecting Teletype machines to their transmitters, sending text messages via warbling tones that used a clumsy 5-bit protocol called a Baudot code. In 1980, after many amateurs had acquired early versions of the “home computers” that used the more modern 8-bit ASCII code, the FCC adjusted the rules to allow ASCII transmissions as well.

But the 1980 rules indirectly limited the speed of data transmission in some of the amateur bands most used for long-distance communications, those below about 30 MHz. Not that the FCC cared how fast anyone sent data way back then. But the accepted wisdom, in those days, said that higher data speeds necessarily occupied higher bandwidths – i.e., took up more spectrum. The FCC’s caps on “symbol rates,” which are one factor in data rates, supposedly furthered the goal of limiting how much spectrum any one transmission used.

During the intervening 33 years, as data transmission by radio matured from a curiosity to a necessity (smartphones, digital TV, Wi-Fi, etc.), engineers got much better at packing higher data rates into lower bandwidths. Notwithstanding this progress, however, the increasingly anachronistic symbol-rate limits remained in the FCC’s amateur rules.

The organization “ARRL, the national association for Amateur Radio” (originally, the American Radio Relay League) has now filed a Petition for Rulemaking that asks the FCC to fix the anomalies. ARRL’s proposal is simple: eliminate the caps on symbol rates, and instead regulate the element that actually matters – by imposing specific, numerical limits on bandwidth.

We think the idea has a lot of merit. Perhaps most important, it would free amateurs to experiment with faster modes of data transmission while still maximizing their sharing of scarce long-range spectrum resources.

The ARRL petition was filed on November 15, but the FCC has already given it a file number and invited preliminary comments on it. Tell the FCC what you think: file via ECFS in proceeding RM-11708, by December 23, 2013.

Auction Action, AM Style

FCC schedules Auction No. 84 for May, 2014, with 22 AM permits up for grabs.

Do you remember what you were doing in January, 2004? That’s not quite ten years ago. George W. Bush was still in his first term in office. The Janet Jackson Super Bowl flap still hadn’t happened. “Friends” and “Frasier” were still on the air; “House” and “Desperate Housewives” hadn’t even debuted.  Facebook was still just a glimmer in Mark Zuckerberg’s eye.

And some of you were apparently filing applications for AM radio construction permits.

We know that because 53 AM applicants, vintage January, 2004 (and four more from 2007), have just been identified as possible participants in a “closed” auction announced by the FCC. The auction, featuring 22 AM construction permits, is set to begin on May 6, 2014.

The permits are for service areas from Oregon down to Florida. Opening bids range from as little as $1,000 (for, e.g., beautiful Lovelock, Nevada) up to $25,000 (for Culver City, California).  You can see a list of the lucky few eligible to bid, the markets they’ll be able to bid on, and the minimum opening bids here.

Continue Reading...

AM Revitalization Update: Comment Deadlines Set

A couple of weeks ago we reported on the FCC’s adoption of a sweeping Notice of Proposed Rulemaking (NPRM) aimed at revitalizing the AM radio service. The NPRM has now been published in the Federal Register, which means that the deadlines for comments on the various proposals have now been set. If you want to file comments in response to the NPRM, you’ve got until January 21, 2014. Reply comments can be filed by February 18, 2014. Additionally, if for some bizarre reason you might instead feel motivated to comment strictly on whether the “information collection” aspects of the NPRM comport with the Paperwork Reduction Act, you can file those comments separately by January 21, 2014.

Update: Form 323 Deadline Extended

It’s official! The deadline for filing biennial Ownership Reports for commercial broadcast stations has been extended 18 days, to December 20, 2013. The Media Bureau took this action in response to a number of requests which observed that the usual 60-day period for preparing and filing such reports – which would ordinarily have run from October 1–December 2 – was interrupted by the 16-day shutdown of the federal government in October. Since preparation of the reports requires access to CDBS, which was off-line during the shutdown, would-be filers were deprived of that access.

LPFM Filing Window Extended, Again

CDBS problems lead to 21-hour extension of filing opportunity.

Hey, all you procrastinating LPFM applicants – you’ve got 21 more hours than you thought you had! The long-scheduled LPFM application window was set to close at 6:00 p.m. ET today, November 14. But lo and behold, CDBS encountered some “technical issues” this afternoon, “issues” that apparently prevented or delayed folks from uploading their applications. (We here at FHH can attest that CDBS appeared to be having major league problems.) As a result, at the very last minute (i.e., approximately 5:00 p.m. ET, an hour before the window was going to slam shut), the Media Bureau issued a public notice announcing that the window would stay open until November 15, 2013 at 3:00 p.m. ET.

This is the second time the LPFM window has been extended.  We strongly suspect that it will be the last.

Discount Daze Update: Comment Deadlines Announced in UHF Discount Proceeding

 Back in September we reported on a Commission proposal to abandon the UHF discount aspect of the limitation on nationwide broadcast TV multiple ownership. (The Commission also suggested that it might be interested in establishing a VHF discount.) The Notice of Proposed Rulemaking has now made it into the Federal Register, which means that comments deadlines have now been established. If you have anything to say to the FCC about the proposal, you’ve got until December 16, 2013 to file comments and until January 13, 2014 to file reply comments.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 2

If you’re broadcasting video in digital, we’re talking to you.

Attention, all DTV broadcasters! It’s that time of year again.  Your Form 317 is due at the FCC by December 2.  You get an extra day this year (since the normal due date, December 1, falls on a Sunday), but that extra day should give you plenty of time to complete and file the form – assuming, that is, that CDBS hasn’t crashed under the weight of all the biennial Ownership Reports that are currently scheduled to be filed by the same deadline.

Having trouble recalling just what Form 317 is all about?  No problem.  Form 317 is the “Digital Ancillary/Supplementary Services” Report on which you have to report whether, between October 1, 2012 – September 30, 2013, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

“Ancillary or supplementary services” include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal.  Multiple video streams that are received free to the public are not considered to be ancillary or supplementary services.

Continue Reading...

Form 499-A Instructions: Comment Sought (Again) on Proposed Changes

The latest version of the FCC’s clarification on reseller certification language recommended for use by wholesale telecommunications providers is now available for comment.

The FCC’s Wireline Competition Bureau is seeking comment on another round of proposed changes to the Form 499-A and Form 499-Q instructions. The latest proposals contain (among a few other things) what many hope will be the final version of the “reseller certification” language for use starting next year. (Reseller certifications are what wholesale telecommunications providers rely on to ascertain applicable Universal Service Fund (USF) contribution obligations.)

Our regular readers will recall that the Commission’s “Wholesaler-Reseller Clarification Order” from nearly a year ago promised clarification to the reseller certification language in the upcoming Form 499-A instructions.  As we observed last March, that clarification was missing from the instructions released earlier this year. Then in August we reported that a group of wholesale telecommunications providers had offered suggested revisions to the reseller certification language and other aspects of the FCC Form 499-A instructions.

(If you need to refresh your recollection of the information in our previous posts, now would be a good time to go back through them again. That background will be helpful for what follows.)

Continue Reading...

Update: In 700 MHz Interoperability Push, FCC Acts Promptly on AT&T Prompt

FCC implements key provisions of AT&T’s 700 MHz interoperability proposal while extending interim construction deadline for 700 MHz A and B Block licensees until December 13, 2016.

In September we reported on a voluntary industry solution, proposed by AT&T and DISH Network, looking to bring interoperability to the 700 MHz block.  Since AT&T required, as a condition to its proposal, that the FCC adopt a number of rules to AT&T’s liking by December 31, 2013, we expressed some skepticism as to the FCC’s ability to meet that ambitious deadline. But lo and behold, the FCC has managed to do just that in record breaking time. 

In a "Report and Order and Order of Proposed Modification" released on October 29, the FCC, among other things, has modified: (a) certain technical requirements for the Lower 700 MHz D and E blocks; and (b) AT&T’s B and C Block licenses, as AT&T had requested as part of the voluntary industry interoperability solution.  The Commission also extended the interim construction benchmark deadline for all 700 MHz Lower A and B Block licensees until December 13, 2016, and issued a waiver of the interim construction benchmark for certain Lower 700 MHz A Block licensees that must limit their deployments in order to protect incumbent Channel 51 operations. 

What’s particularly noteworthy in the Order is the inclusion by the FCC of various escape valves AT&T provided for itself, which could delay the roll-out of 700 MHz interoperable devices for at least six months. It’s not clear what the FCC would do, if anything, to extend the interim construction deadlines for Lower A and B Block licensees should AT&T miss the deadline to begin the roll-out of interoperable devices.

In keeping with the breakneck speed with which the FCC seems to be dealing with AT&T’s proposal, the Order has been published in the Federal Register already. The amended rules are set to take effect on December 5, 2013, although the Order itself will technically be subject to judicial review until at least January 4, 2014 (and longer, if anyone seeks such review prior to that date).

H Block Update: Effective Date Set for Revised Certification Requirement

Last August we reported that most, but not all, of the H Block service rules adopted by the Commission in June were scheduled to take effect in September. The three exceptions: Sections 1.2105(a)(2)(xii), 27.12, and 27.17, all of which involve new “information collections” requiring Paperwork Reduction Act review by the Office of Management and Budget. Now we’re one step closer to getting all the new rules in place. By a public notice in the Federal Register, the Commission has announced that OMB has signed off on the revised 1.2105(a)(2)(xii), so that section (as revised) is now effective. (Turns out the OMB’s sign-off happened on September 17. We don’t know why the FCC held off a month and a half to spread the word.)

The new version of Section 1.2105(a)(2)(xii) requires

a party seeking to participate in any auction conducted pursuant to the 2012 Spectrum Act to certify in its application, under penalty of perjury, that the applicant and all of the related individuals and entities required to be disclosed on its application are not person(s) who have been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant and thus statutorily prohibited from participating in such a Commission auction.

No word on the other two not-yet-effective rules. Check back here for updates on that front.

Update: FCC Seeks Further Comment on 3550-3650 MHz

Public notice lays out ideas based on industry responses so far.

We reported a year ago on the FCC’s novel proposals for spectrum management in the 3550-3650 MHz band.

Following the receipt of comments and a workshop, the FCC is rethinking the details. Its evolving ideas, on which the FCC requests comment, are set out in a public notice.

Ordinarily at this point in a blog piece, we would summarize the public notice. Not this time. It runs to 18 single-spaced pages and is dense with information; an accurate summary would be almost as long as the document itself. We recommend that interested persons consult the public notice directly.

This is not the last word. The FCC has signaled that the next stage will be a Further Notice of Proposed Rulemaking, before it proceeds to adopt rules. Usually, this sequence means the FNPRM will be largely a formality, setting out whatever rules the FCC expects to adopt. Those who want to affect the course of the proceeding should consider submitting their views in response to the public notice.

Comments are due by December 5, 2013 and reply comments by December 20. File in GN Docket No. 12-354.

Expert Group Seeks Expedited FCC Handling of Radio Technologies above 95 GHz

IEEE wants the FCC to declare that innovations in this frequency range are “new technologies” requiring a “public interest” determination within one year.

The history of radio is the history of a push to ever-higher frequencies. In the 1930s, “short wave” at 30 MHz (then called 30 “megacycles”) was near the upper limit. The post-war years saw a rapid push into single-digit gigahertz. Today there is off-the-shelf equipment at pretty much all frequencies up to 95 GHz.

But no higher, because that is where the FCC rules stop. The FCC has assigned uses to frequencies up to 275 GHz, and it claims jurisdiction up to 3,000 GHz. (Beyond 3,000 GHz, signals stop being radio waves and become infrared.)

But above 95 GHz, there are no rules to regulate any service. The FCC will not authorize the marketing of a device that transmits above 95 GHz. FCC approvals in this range can be obtained only on an experimental basis.

The Institute of Electrical and Electronics Engineers (IEEE), which includes the top experts in this area, expects frequencies above 95 GHz soon to be ripe for commercial exploitation. But the group sees the lack of FCC rules as a barrier. In addition to regulatory uncertainty, innovators will face what the IEEE delicately calls “an expected regulatory delay that is difficult to quantify.” We can be more blunt: with just one or two recent exceptions, the FCC has been notoriously slow in approving new technologies.

The IEEE filed a Petition for Declaratory Ruling that seeks to address the problem. It relies on a 1983 statute, called “Section 7,” that says, in part:

Continue Reading...

FCC Releases Details on Workshop about Unlicensed Spectrum Issues

Workshop to take place November 8 at FCC headquarters.

The FCC has announced the topics and panel participants for its November 8 workshop on unlicensed spectrum issues related to the spectrum incentive auction. Details are here.

Another H Block Update: Reconsideration of Auction Procedures Sought

A couple of days ago we called readers’ attention to a petition for reconsideration of the H Block service rules that had been filed by the Rural Wireless Association (RWA).  We mentioned in that post that an FHH client – NCTH, Inc. – had filed for reconsideration of the H Block auction procedures.  And now a public notice of that latter recon petition has made it into the Federal Register.  The NCTH petition urges the Commission to address and resolve RWA’s petition before the auction so that, if the Commission is persuaded by RWA’s arguments, it can make appropriate changes to the auction before the participants – that is, bidders and the FCC – get too deeply wedded to the procedures as originally announced.  (Spoiler alert: NCTH agrees with the RWA position.)

The NCTH petition also suggests that the Commission reduce the reserve price set for the H Block auction.  The reserve price is the minimum amount that the auction must bring in before the auction will be deemed to be valid. Often, the reserve price is set to be close to the initial minimum bid amount.  But here, the reserve price for the H Block auction is $0.50 per MHz/pop, which calculates out to about $1.5 billion – magnitudes greater than most observers had expected.  The astronomical reserve price may be part of an arrangement with DISH Network that has been the source of some speculation.  Since an unusually high reserve price could easily discourage smaller carriers from bidding, NCTH suggests that the Commission should lower the reserve price to increase participation.  (It also expresses concern about the Commission’s failure thus far to make clear on the public record what influence, if any, the DISH arrangement may have had on the establishment of the reserve price.)

Oppositions to the NCTH petition for reconsideration may be filed by November 13, 2013.  Replies may be filed by November 25.

Update: Revised Text-to-911 Bounce-Back Rule Now In Effect

Earlier this month we reported on the Commission’s last-minute amendment of its text-to-911 bounce-back rule. The amendment was necessitated by the fact – brought to the FCC’s attention by CTIA – that the bounce-back rule (that would be Section 20.18(n)(7)) would be impossible for carriers to comply with for roaming customers due to the way text-to-911 messages are handled.

The order announcing the amendment has now been published in the Federal Register. And as we pointed out in our original post, the Commission took care to provide that the amendment will take effect immediately upon Register publication (rather than 30 days thereafter, as is the FCC’s SOP). So the amended text-to-911 bounce-back rule is now officially in effect.

H Block Update: Reconsideration of Service Rules Sought

Another caltrop has been dropped in the path of the H Block auctions that the Commission is trying to push forward full speed ahead. A petition has been filed seeking reconsideration of the rules, adopted last June, governing the licensing of H Block spectrum.

The petition, filed by the Rural Wireless Association (RWA), challenges the FCC’s decision to issue H Block licenses on an Economic Area (EA) basis, rather than a Cellular Market Area (CMA) basis. It also faults the Commission for adopting population-based construction requirements. 

In RWA’s view, the H Block rules as adopted will present a barrier to the participation of small and rural carriers in the H Block auction and will result in the failure of carriers to provide H Block service to rural consumers. According to RWA (which used to be known as Rural Telecommunications Group, Inc.), Congress indicated that the FCC should be far more solicitous of rural interests than the H Block rules appear to be.

As we have previously indicated, the H Block rules and related auction procedures do seem to have been crafted with a particular agenda in mind, an agenda not necessarily consistent with rural interests. (Full disclosure: FHH represents a party that has sought reconsideration of the auction procedures.) Whether all this runs afoul of Congress’s intent remains to be seen. But the pendency of reconsideration petitions could cast enough of a pall of uncertainty over the upcoming auction to discourage potential bidders. And that, in turn, could reduce the government’s take out of the auctions. 

The Commission may seek to resolve the petitions sooner rather than later, to dispel any uncertainty as quickly as possible. But the prospect of appeals will still linger.

The filing of the RWA petition has now been noted in the Federal Register, which sets the dates for oppositions and replies. Anyone wishing to oppose the RWA petition has until November 12, 2013 to do so; replies may be filed by November 22.

Shutdown Follow-up: H Block Auction Dates Re-Set

If you’re planning on participating in the upcoming H Block auction, it’s time to get your calendar out and mark some scheduling changes. As a result of the governmental shutdown, the originally announced dates are being shifted to provide auction participants a bit more time for planning and preparation. According to the latest public notice, the auction will now begin on January 22, 2014 (eight days later than previously announced).  Other important dates are now set as follows:

Window for Short Form (FCC Form 175)
Applications OPENS:                                                               November 4, 2013 – 12N ET

Window for Short Form Applications CLOSES:            November 15, 2013 – 6:00 p.m. ET

Upfront payments (via wire transfer) due:                    December 18, 2013 – 6:00 p.m. ET

Auction begins:                                                                          January 22, 2014

To assist would-be bidders, the Commission is also presenting an online auction tutorial on November 4, 2013, and it's planning to conduct a mock auction on January 17, 2014.

Shutdown Follow-up: LPFM Window Extended, LPFM Application Rules Clarified

LPFM protection of FM translator input signals modified in several respects

In further fallout from the October shutdown of the federal government, the Commission has extended the LPFM filing window by 16 days. As a result, the window – which has been open since the FCC reopened its doors again on October 17 – will stay open until November 14, 2013 at 6:00 p.m. ESTPlease revise your calendars accordingly.

In other LPFM scheduling news, the Media Bureau has also rescheduled an LPFM webinar for October 24, 2013 from 1:00-2:30 p.m. Topics covered will include “LPFM Channel Finder, creating a CDBS account, completing Form 318, and any other issues related to the LPFM window and the filing process”. You can send in your own questions by email (lpfm@fcc.gov) or by Twitter (hashtag - #LPFMquestions).  

Before you formulate your list of questions, you should be sure to take a look at the first order the Commission released when it got back to work post-shutdown. In fairness to the Commission, it had adopted this order – the Sixth Order on Reconsideration (Sixth LPFM Recon Order) – on September 30, the day before the shutdown. But it wasn’t able to get the order out the door before Congress’s shenanigans slammed the door shut on October 1, so the order sat in limbo for the 16 days of the shutdown.

Continue Reading...

Reminder: TV Issues/Programs Lists, Reports Must be Uploaded When Government Re-Opens

Federal shutdown prevented licensees from posting quarterly lists, compliance reports by October 10 deadline.

As just about everybody must know by now, the government has been shut down since October 1, but appears to be set to re-open in the next couple of days, possibly as early as Thursday, October 17.

Our colleague Mitchell Lazarus observed here last week that, when at long last the FCC flings its doors (and e-filing portals) wide open once again, it is likely to be inundated with applications, reports, pleadings, comments and all manner of other materials.

A couple of chores that should not be overlooked by TV licensees are the uploading of their issues/programs lists, commercial compliance certifications and website compliance reports for the third quarter of 2013.  All of these were due to be prepared by all full-service TV and Class A TV stations by October 10.

Continue Reading...

H Block Update: Auction Scheduled

But government shutdown, still-pending issues could interpose delays.

Despite some dissension on the 8th floor of the FCC about whether to proceed immediately with the H Block auction, the FCC has adopted a scheduling order and associated rules and procedures to govern the auction. (Blogmeister's Note: As previously promised, here is a link to the FCC's original public notice setting the dates and procedures for the H Block auction -- but heads up!  Thanks to the government shutdown, the FCC has since adjusted the relevant dates.  Check here for our update.) Commissioner Rosenworcel had argued that the H Block auction should be paired with the auction of AWS-3 spectrum in order to reap a larger pay-out to the FCC from the combination of the two. Despite this objection, the Commission plunged ahead on September 13 to set the auction up for January 14, 2014. The Middle Class Tax Relief and Job Creation Act of 2012 had directed the FCC to auction this spectrum no later than February 23, 2015, so the Commission had a little leeway here on when it had to initiate the auction.

The H Block consists of the 1995-2000 MHz and 1915-1920 MHz bands.   It is therefore adjacent to the PCS G Block held by Sprint on one side and the AWS-4 band held by DISH Network on the other. This geographic setting has unfortunately made it the Alsace-Lorraine of telecommunications – the prize in a tug o’ war between the two giant adjacent licensees who have tried to make it their own.

The rules applicable to this auction follow the procedures typical for auctions these days with a few key exceptions:

Continue Reading...

FCC Will Face Massive Backlog on Reopening

(Pent-up filings from the period of the shutdown will jam the agency)

With the FCC shutdown now halfway through its second week, we have been thinking about the start-up procedure when the shutdown finally ends. We don’t like how that looks.

Everything that would have come due during the shutdown instead will all be due on the same day: not the day the FCC reopens, but the day after that. Filings due on the day of reopening are likewise put off till that same next day.

Continue Reading...

Update: Text-To-911 Bounce-Back Rule Revised for Roaming Customers

Amended rule to take effect on expedited basis; Rule adopted last May to be waived pending effectiveness of amendment

There’s nothing like an impending deadline to get your attention – even if you are the FCC.

Readers will recall that, just last May, the Commission adopted new rules requiring text-to-911 “bounce-back” messages when a person sends a text message to “911” but text-to-911 capabilities are not actually available. As we reported, the new rules were set to take effect on September 30, 2013. But in July, CTIA sought reconsideration, pointing out that the bounce-back rule (Section 20.18(n)(7), if you need to know) would be impossible for carriers to comply with for roaming customers due to the way text-to-911 messages are handled. Obviously, addressing that problem before the effective date was a matter of some importance.

And sure enough, the FCC has done what needed to be done. In an Order on Reconsideration issued on (wait for it) September 30, the FCC amended Section 20.18(n)(7) to read as follows:

(7) Notwithstanding any other provisions in this section, when a consumer is roaming on a covered text provider’s host network pursuant to 20.12, the covered text provider operating the consumer's home network shall have the obligation to originate an automatic bounce-back message to such consumer when (a) the consumer is located in an area where text-to-911 service is unavailable, or (b) the home provider does not support text-to-911 service in that area at the time. The host provider shall not impede the consumer’s 911 text message to the home provider and/or any automatic bounce-back message originated by the home provider to the consumer roaming on the host network.

This appears to address the problem identified by CTIA.

But this amendment won’t go into effect until it’s been published in the Federal Register, while the rule as adopted last May is already in effect. Doesn’t that mean that, at least for the time being, providers are technically in violation of the rule (even if compliance with the rule is technically impossible)?

Continue Reading...

FCC Stays the Course on Digital Transition for LPTV/Class A Stations

Deadlines set in 2011 remain in place; Channel 6 LPTV's cautioned on potential for NCE FM interference.

The FCC has nixed requests submitted by a number of LPTV and Class A stations looking for relief from spectrum-clearing measures put in place two years ago.

In 2011, the FCC announced the end of the transition to digital broadcasting for Class A and Low Power Television stations (to make life simple, we’ll call them both “LPTV” for now). In so doing, it set a number of deadlines.  In response to a handful of petitions of reconsideration, the FCC has now reaffirmed those deadlines. It has also addressed complaints from noncommercial (NCE) FM broadcasters that increased power levels for LPTV stations operating on Channel 6 could cause interference to NCE FM stations.

Under the deadlines set in 2011, all TV operation of any kind, analog or digital, on Channels 52 and above had to end by December 31, 2011, and all analog LPTV broadcasting on any channel must end by September 1, 2015. 

The December, 2011 deadline put a particular squeeze on out-of-core LPTV licensees. Some had a hard time finding an in-core channel by the deadline. Others who did find such a channel still had to go dark on December 31, 2011 if they had not received a permit for, or completed construction of, their in-core facilities. Going dark, of course, poses its own major problem: Section 312(g) of the Communications Act says that a broadcast station that fails to operate for 12 consecutive months automatically loses its license.

Continue Reading...

Biennial Form 323's: The filing window opens October 1

The FCC has announced that, as of October 1, commercial broadcasters will be able to file their 2013 biennial Ownership Reports (FCC Form 323). These reports are technically not due until December 2. Still, we should all bear in mind that
(a) ALL attributable interest holders in ALL commercial licensees must file biennial reports, which means that the load on CDBS will increase substantially (yes, you have to use CDBS; no paper filings will be accepted); (b) December 2 happens to fall shortly after the Thanksgiving holiday and shortly before the big and often distracting year end holidays (Christmas, Hanukkah, Kwanzaa, New Year’s); and (c) a number of licensees will also be having to file renewal applications on or before December 2. All of those are pretty good reasons to get ahead of the curve and file your 323’s sooner rather than later

The information to be reported must reflect things as of October 1, 2013. In other words, even if a station changes hands or new officers, directors, shareholders or other attributable interest holders are brought into the mix between October 1 and when you end up filing the Ownership Report, your biennial report must show the station’s ownership as it was as of October 1.

This year reporting parties will still be able to use Special Use FRNs (SUFRN).  (If you’re fuzzy on the whole SUFRN thing, check out this earlier post on the topic.) While the instructions on current version of Form 323 are surprisingly silent about that option – in fact, the instructions say nothing at all about SUFRNs – the Commission has updated its online Form 323 FAQs to provide information on SUFRN use.

One quirk of the Form 323 which is not mentioned on the FAQ page does happen to pop up on a different FCC webpage titled “Most Common Form 323 Filing Errors”.

Continue Reading...

FTC Seeks Comments on Proposed Terms of Nielsen/Arbitron Consent Agreement

Transaction has been approved, but with strings attached; agency is now looking to define those strings

As many readers probably realize, in a move that would shrink the competitive field of media measurement companies, the nice folks at Nielsen are planning to acquire the nice folks at Arbitron. As often happens when one competitor proposes to absorb another, the Federal Trade Commission (FTC) has involved itself in the proposed take-over. While the FTC has green-lighted the deal, it is insisting that the parties enter into a consent agreement.

And now the FTC has requested public comments about the terms of that proposed consent agreement.

The FTC’s concern arises from the proposed acquisition’s potential for the complete elimination of competition in the cross-platform media measurement service market. (A cross-platform media measurement service can measure the audience of a “television” program regardless of whether or not it was watched on a traditional television set, or through online or mobile devices.)  In order to offer cross-platform audience measurements on a national scale, a firm must have access to television audience data along with individual demographic data. Establishing the infrastructure to recruit and maintain a representative sample of the population and developing technology capable of collecting the underlying data would be extremely expensive.

Nielsen and Arbitron are currently the only two companies with the potential to provide these services, and their combination could lead to a lack of innovation and higher prices for customers.  Additionally, advertisers have come to trust Nielsen and Arbitron as the only reputable and reliable services. Any competitor would likely face pushback from the buyers of advertising time.

The FTC has concluded that the acquisition is likely to cause significant competitive harms in the market for national cross-platform audience measurement services.

Continue Reading...

Caution: With Possible Government Shut-Down On Horizon, Early Renewal Filing May Be A Good Idea

Sadly enough, the possibility of a governmental shut-down next week looms if Congress is unable to get its act together to keep the government funded. As matters currently stand, it looks like September 30 would be the last day routine business might get done before the budget impasse closes down the government. Such a shut-down would affect the FCC along with all other federal agencies. This could have a disastrous impact on non-broadcast licensees whose licenses are expiring after 11:59 p.m. on September 30.

The Administrative Procedure Act provides that licensees continue to have operating authority even after the expiration of their licenses as long as they have a renewal application on file. However, in order to take advantage of that automatic extension of your license, you must have actually filed a renewal application – and there’s the rub.  If the agency is closed for business, licensees would theoretically be unable to file their renewal applications. (It’s not clear whether on-line filing mechanisms – think ULS or CDBS – would remain up and running during a shut-down. And even if they were technically still functioning, it’s equally unclear whether a renewal application uploaded through those systems would trigger the automatic extension of operating authority.)

A shut-down would theoretically extend the time for you to file a renewal application until the government re-opens, but it would not automatically extend your operating authority beyond the expiration date. So a licensee whose license expires on, say, October 10, 2013 might not be able to file a renewal application until some later date when the government gets going again. In the meantime, the licensee would not have any authority to be operating.

Continue Reading...

Deadline Fast Approaching for CALM Act Waiver Extension Requests

Attention, any TV licensee with a CALM Act waiver still in effect. You’ve got until October 14, 2013 to file for extension of that waiver. Failure to do so could mean that you will have to be in compliance with the CALM Act requirements when December 13 rolls around

The 2010 CALM Act, designed to stifle “loud commercials”, technically took effect in December 2012. But, in its infinite legislative wisdom, Congress provided the opportunity for an initial one-year waiver – possibly extendible for a second year.  In implementing the Act, the Commission allowed “small” stations and MVPDs to have the initial one-year waiver pretty much for the asking: all that was required was a self-certification that (a) the station/MVPD met the limited standards for “small” facilities and (b) it needed the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” if it had to get the equipment sooner.  (Check out our earlier post for more information on those requirements.)

As we reported back in July, the initial one-year waivers will expire as of the first anniversary of the effectiveness of the CALM Act rules, i.e., by December 13, 2013.  Requests for the extension of the waiver must be filed at least 60 days prior to the expiration of the currently outstanding waiver, which gets us to the upcoming October 14, 2013 deadline.  (Last year the Commission extended the deadline after the fact; we can’t say whether the Commission will do the same again, but we wouldn’t bet the farm on a similar extension this year.)

Back in 2011, when it first announced how it would deal with waivers, the Commission said that the “filing requirements to request a waiver for a second year are the same as those for the initial waiver request.” That seems pretty clear, but you never can tell. (Again, for a summary of the filing requirements as originally laid out by the FCC, see our earlier post.)   In any event, if you will be needing an additional one-year waiver, you’ve got just a couple of weeks to request it. 

We can assist in the preparation and filing of extension requests -- let us know if we can help.

Incentive Auction Update: Bureau Looks For Input on What Auction-Induced Reassignment Expenses Should be Reimbursable

Public notice suggests FCC is looking to cut as many corners as possible.

If you’re a full-power or Class A TV licensee and you haven’t started to do the math relative to what the much-heralded incentive auction could mean for you dollars-and-cents-wise, here’s a CommLawBlog tip – it’s time to get started . . . because the Media Bureau clearly has. Don’t believe us? Check out the Bureau’s request for comments on the “catalog of eligible expenses” that it has compiled. You’ve got until October 31, 2013 to let the Bureau know what you think about its catalog (and some related issues); you’ll also be able to file reply comments until November 14.

The Bureau’s (and the Commission’s) interest here arises particularly from the Middle Class Tax Relief and Job Creation Act of 2012 (what many of us refer to as the Spectrum Act). There Congress established a $1.75 billion “TV Broadcaster Relocation Fund” for reimbursement of certain expenses incurred by broadcasters in connection with the various channel shuffles necessary to make the incentive auction work. Congress left to the FCC the nitty-gritty chore of figuring out just what expenses would be subject to reimbursement.

The Commission has now started on that process, and it’s looking for industry input.

Continue Reading...

LPFM Update: FCC Plans (Another) Instructional Webinar

With the opening of the LPFM filing window fast approaching, the Commission has announced another webinar on the LPFM filing process. Mark your calendars: the webinar will be held on October 3, 2013 from 1:00-2:30 p.m. ET. The Commission plans to run the webinar as a Q-and-A permitting would-be LPFM applicants to pepper Media Bureau gurus with specific questions about “the LPFM Channel Finder, creating a CDBS account, filling out the application (Form 318), and any other issues related to the LPFM window and Form 318.” Questions will be submitted during the webinar by email (lpfm@fcc.gov) or by Twitter (hashtag – #LPFMquestions).

This is a follow-up to an earlier LPFM webinar held last month. If you missed that one, no worries – you can still catch the replay on the FCC’s website. But hold on just a sec. The subjects supposedly covered in the August webinar were (and we quote): “an overview of the low power radio service; how to use the Commission’s LPFM Channel Finder; instructions on creating a CDBS account; and how to fill out the application (Form 318).” What is this, Groundhog Day? Or is the LPFM filing process so difficult to explain that the August session didn’t cover it all? 

Whatever may be the case, it’s probably good that the Commission is doing what it can to educate LPFM wannabes before the window opens. While that does not guarantee a smooth filing process with no glitches, it may at least help to reduce some of the frustration, disappointment and potential disruption that might otherwise occur if boatloads of LPFM applicants go the DIY route rather than lawyer up with real communications counsel.

Update: OET Releases the Latest and Greatest* Version of TVStudy . . . Again

* (for maybe another couple of weeks, probably)

And the target continues to move as the Commission works to sharpen its analytical pencils. Less than a month after Version 1.2.7 of TVStudy was released, lookee here – there’s a new and improved version. The Office of Engineering and Technology has announced Version 1.2.8, hot off the presses and ready for test drives.  (At the risk of stating the obvious, TVStudy is the software that will be used in the modeling and analysis necessary to repack the TV spectrum.)

With the new version, we should all be able to “apply mechanical beam tilt only to stations having real antenna elevation patterns (either licensee-supplied elevation patterns in CDBS or user-entered patterns)”. According to OET, Version 1.2.8 also “adds logic to choose the higher of the radio horizon or maximum values for effective radiated power for low-power stations (including Class A)”. Plus, let’s not overlook the fact that the new version “improves compatibility with Oracle’s Java Runtime Environment (JRE) version 7” and “corrects an issue with scenario template exportation.” And those are just the highlights – check out the “Upgrade Guide and Change Log” for the full scoop.

Meanwhile, for those who are perhaps less technically inclined, the FCC has separately announced a workshop on September 30, 2013 on “issues surrounding the reassignment of television stations after the incentive auction.” This time around, those issues will include the types of reimbursable costs TV licensees can expect to run into in the repacking process, and also how broadcasters can “coordinate among themselves to mitigate costs and ensure the most efficient transition to new frequencies.” The show is scheduled to run from 10:00 a.m.-12:30 p.m. in the Commission Meeting Room. It’ll also be streamed at http://www.fcc.gov/live as part of the FCC’s “Learn Everything About Reverse Auctions Now” Program. (Yes, that would be the LEARN program, acronymically speaking.)

Media Bureau to 104 More FM Translator Singletons: Come On Down!

A second window for long-form translator applications is now open through October 9.

If you’ve got a singleton FM translator application still pending but you weren’t among the 1,200+ applicants who got invited to file long form Form 349 applications last July, take heart! The Media Bureau has issued another invitation, this time to 104 more translator applicants. You can see a PDF of the invite list here, or you can find a more sliceable and diceable Excel version here.  If you're on the list, get ready to act right away.

The same drill that applied to the July invitees applies this time around.

First and foremost, the deadline: this latest window will be open only until through Wednesday, October 9, 2013.  Mark your calendars.

And heads up – if you’re planning on amending your technical proposal, be aware that the long-form application (and amendments) will be entitled to protection from all subsequently-filed FM translator applications (and their amendments).  So the sooner you file, the better.

Applicants will need to include a filing fee and Form 159 with their long-forms, but since the long-forms must be filed electronically through CDBS, you’ll be reminded of that when you file. CDBS may not alert you, however, to the fact that your application will be subject to a number of limitations.

Continue Reading...

Online TV Public Inspection File Update: A New Political Reporting Approach Proposed

Public interest groups suggest FEC-like reporting system for TV stations

A couple of months ago we reported that the FCC had asked for comments on whether or not to extend the political file component of the online public inspection file requirement to all TV stations. You will doubtless recall that, when the online public file system was first put into place in 2012, only Big Four network affiliates in the Top 50 markets were required to upload their political file materials. Everybody else simply has had to continue to maintain those materials in their respective local public files. The FCC originally targeted July 1, 2014, as the date by which the online requirement would be made universal; the recent request for comments is designed to help the Commission decide whether that target date is still a good idea.

The initial response to the FCC request for comments was less than overwhelming. As of September 6, ECFS was showing a total of three comments filed. Of those, two (filed by the NAB and Gray Television, Inc.) advocated that the FCC hold off beyond July 1, 2014 on imposing the online political file burden on smaller stations in smaller markets. No big surprise there: based on their obvious familiarity with the operation of such stations in such markets, both NAB and Gray argued that forcing all TV stations, regardless of their size, to move their political files online would result in serious, unnecessary burdens.

The third set of comments came from an entirely different angle.

Continue Reading...

Update: 2013 Reg Fee Deadline Set

Mark your calendar, round up your credit cards and keep your FRN handy.  The FCC has finally announced that this year’s regulatory fees must be paid by September 20, 2013. (Yes, that deadline -- which appears in the "Dates" paragraph in the linked Federal Register announcement -- does seem a bit later than usual, as does the announcement itself, which is showing up less than 30 days before the deadline!)  [Blogmeister's Update: During the afternoon of August 23, the FCC has issued a separate public notice further confirming that the deadline for payment of 2013 reg fees is 11:59 p.m. (ET) on September 20, 2013.[

The online “Fee Filer” system is now up and running; you can get to it at this link. That’s the first stop you’ll have to make in paying your fees. Once you log into the Fee Filer system (using your FCC Registration Number (FRN) and password), you’ll be able to generate a Form 159-E, which you’ll need to tender with your payment. 

While Fee Filer will ordinarily list fees associated with the FRN used to access the system, WATCH OUT: the list of fees shown in Fee Filer may not be complete. (The same is true for the broadcast reg fee “lookup” page provided by the Commission.) The FCC makes clear that it’s the payer’s responsibility to confirm the “fullest extent of [the payer’s] regulatory fee obligation.” Double- and triple-checking other FCC databases, as well as your own records, is prudent, since failure to file any required reg fee, even if inadvertent and even if only for a very small amount – like, say, a $10 auxiliary license fee – can result in very unpleasant complications (thanks to the Debt Collection Improvement Act).

As outlined in the public notice announcing the September 20 deadline, there are a number of ways in which the fee can be paid, once you have your Form 159-E. Helpful tip: the online approach, using a credit card, is extremely efficient. Wire transfer and ACH payments are also good, although they may involve some additional steps. For our money, the least desirable approach is the old-fashioned way, i.e., sending a paper check to the FCC’s bank in St. Louis. Lots of things could go wrong between the times (a) you stick the envelope in the mail box and (b) the payment is ultimately credited by the Commission. 

Remember, the FCC will not be sending you a hard-copy reminder of your reg fee bill. And remember, too, the FCC imposes a 25% late filing fee, starting immediately after the deadline. You’ve got just about a month to get your payment in – there is no reason to run afoul of that deadline. Good luck.

Update: OET Releases the Latest and Greatest* Version of TVStudy

* (for now, at least)

From our Moving Targets file, we are pleased to report more developments from the FCC’s Incentive Auction Task Force. Less than a month ago, the Office of Engineering and Technology released a bunch of materials relating to Version 1.2.6 of TVStudy, which was an upgrade from April’s Version 1.1.2.  (The original version – presumably Version 1.1.1 – was released last February.)  

And now OET has given us Version 1.2.7

TV Study, of course, is the software that will be used in the modeling and analysis necessary to repack the TV spectrum.

The new version allows studies of potential interference between U.S. stations and stations in Canada and Mexico (on proxy channels, of course). It also cleans up a couple of bugs that had apparently surfaced in the earlier version. (For ALL the gory details, hard-core techies may want to consult the “Upgrade Guide and Change Log” the FCC has posted.)

OET continues to solicit input on TVStudy from any interested parties, and from the turn-around time between Versions 1.2.6 and 1.2.7, they sure seem to be moving quickly to tweak the program.

If you’re still getting oriented with this whole repacking thing – or if you want to get even further into the details of the FCC’s repacking plans than you already are – you may want to sign up to participate in a Task Force-conducted webinar on “repacking data”. It’s scheduled for August 22, 2013 between 1:00-3:00 p.m. The full scoop on how to sign up can be found here.

Update: Effective Date, Comment Deadlines Set in Travelers' Information Station Proceeding

In late July we reported on the FCC’s adoption of new rules governing Travelers’ Information Stations. Those new rules (contained in the “Report and Order” portion of the “Report and Order and Further Notice of Proposed Rulemaking” (R&O/FNPRM)) have now been published in the Federal Register, which means that they are set to take effect on September 18, 2013. Meanwhile, in a separate item in the same issue of the Federal Register, the Commission has published the “Further Notice of Proposed Rulemaking” component of the R&O/FNPRM. According to that item, comments on in response to the FCC’s proposals are due to be filed by September 18, 2013, and reply comments by October 3.

FCC Seeks Comment on LightSquared Handsets

Inquiry focuses on recent technical submission.

If you thought LightSquared was dead and gone, think again. We reported in November on the company’s proposal to shift its operations farther away from GPS frequencies, so as to escape the vehement negative reaction of GPS users. Now LightSquared has released additional technical information about its handset operations in the newly proposed band. The FCC wants to know what you think.

Comments on the LightSquared submission are due on September 6, 2013 and reply comments on September 23.

Update: Effective Date Set for Most New H Block Rules

Last month we reported on the FCC’s prompt adoption of new service rules governing operation in the H Block, i.e., the portion of the spectrum consisting of the 1915-1920 MHz and 1995-2000 MHz bands. The Commission’s Report and Order has now been published in the Federal Register, which sets the effective date for most of the new rules at September 16, 2013. The exceptions? Those would be Sections 1.2105(a)(2)(xii), 27.12, and 27.17, all of which involve new “information collections” that must first be run past the Office of Management and Budget, thanks to the Paperwork Reduction Act. That process will take several months, at least. Check back here for updates.

Update: Initial Effective Date for Form 477 Expansion Plan Set

Last month we reported on changes to the Commission’s Form 477 Data Program, which collects information from broadband and voice service providers. The Report and Order setting out those changes has now made it into the Federal Register, meaning that some – but not all – of those changes will take effect on September 12, 2013. Which parts didn’t make the cut? Those would be the new “information collection” components, which can be found in Sections 1.7001, 1.7002, 43.01 and 43.11. As we mentioned in our earlier post, such information collections have to be run through the Office of Management and Budget for its thumbs up pursuant to the hilariously named Paperwork Reduction Act. That process usually takes several months. Check back here for updates.

2013 Reg Fees Set

Significant increases across-the-board for broadcasters; no announced deadline for fee payments yet, but indications are that they will be due sometime in “the middle of September”

The final 2013 regulatory fees have been announced by the Commission.  For those of you anxious to cut to the chase, here’s a link to a convenient table setting out new fees (and, for TV-related services, comparing (a) the fees the FCC has now adopted against (b) last year’s fees). But before you head on out to the table, you might want to brace yourself – this year’s fees are, with very limited exceptions, a lot steeper than last year’s.

How much steeper? About 7.5% across-the-board on the TV side – which, for a VHF TV station in one of the top ten markets translates to an impressive $6,000 bump up. For radio, the increases tend to be more in the 5% range – preferable to 7.5%, for sure, but still likely to sting a bit.

The relative uniformity in the fee increases over last year should not be a surprise. As we reported last May, when the FCC first proposed this year’s fees, the Commission is re-jiggering the cost allocation method underlying the annual calculation of fees. That re-jiggering means serious upticks for some services, including broadcasting. In fact, the anticipated increases were so serious that, to cushion the initial blow, last May the Commission was contemplating capping increases at 7.5%. And that’s just what it’s done. (For a somewhat more detailed discussion of the allocation method that has led to the increases, see our previous posts here and here.)

Continue Reading...

Filing Deadline for 2013 Biennial Form 323 Extended Already!

Yikes, time is just screaming past us. Has it really been two years since the last biennial Ownership Report (FCC Form 323) was filed? Apparently so – and we know this because the FCC, apparently looking to get a jump on things, has already extended the deadline for the next biennial Form 323. In an order issued on its own motion (i.e., nobody even had to ask), the Media Bureau has announced that the 2013 biennial Ownership Reports will be due no later than December 2, 2013. (That’s a month later than the original deadline.)

The Commission provided a similar one-month extension the last time around, back in 2011.

These biennial reports must be filed by all commercial full-power AM, FM, TV, and LPTV stations (including Class A stations), as well as any entities that happen to have attributable interests in any such stations. While the deadline for filing has moved, the “as of” date – that is, the date as of which the information in the report must be accurate – has not moved. So this year’s Ownership Reports must reflect the reporting entity’s information as of October 1, 2013.

The Commission still has taken no action in the rulemaking proceeding it kicked off last New Year’s Eve. You may recall that, in that Sixth Notice of Proposed Rulemaking, the Commission proposed ditching the “special use FRN” (SUFRN) that has been a feature of the biennial Form 323 since late 2009. (The SUFRN has an interesting history, which you can read about here (and in the earlier links you’ll find there). It’s a device that permits some reporting individuals to avoid having to cough up their Social Security Numbers in order to get an official FCC Registration Number (FRN) to include in the Ownership Report.) The Bureau’s order doesn’t mention SUFRNs, which is par for the course. But since the Commission has not adopted that proposal, it seems at this point that it’s a reasonable bet that the SUFRN will still be available for 2013 Form 323 filers. You can never be too sure, though, so it would probably be prudent to check back here periodically between now and then.

Form 499-A Instructions: The Industry Suggests an Alternative

The FCC seeks comment on proposed changes to the Form 499-A instructions submitted by a group of wholesale carriers.

The Commission is on a constant crusade to ensure that all telecommunications providers who are supposed to be contributing to the Universal Service Fund (USF) are in fact doing so . . . and doing so in the proper amounts. Last month the FCC received some help from the private sector in the form of a letter – filed jointly by eight wholesale telecommunications providers (including Verizon, AT&T, Sprint, CenturyLink and XO Communications) – offering suggested revisions to the “reseller certification” language, and other aspects, of FCC Form 499-A. 

And now the Wireline Competition Bureau (WCB) has solicited input on the proposal.

The USF, of course, is a program which supports several federal, telecom-related, subsidy programs. It is funded through mandatory “contributions” – the guv’mint prefers that you don’t call it a tax, even if it looks like one – from telecommunications providers based on their “end-user” revenues. (More below on what constitutes an “end-user”.) The providers traditionally don’t dip into their own pockets to make the payment; instead, they simply pass the cost along to their customers in a separate line item charge. Still, providers want to be sure that they aren’t overpaying, while the Commission wants to make sure that all are paying their fair share.

Which brings us to Form 499-A.

Continue Reading...

The 411 on 844: A New Toll-Free Area Code Coming Soon

Toll-free phone numbers using the next area code in the 800 series will be up for grabs starting this December.

A new toll-free area code is about to become available. Put your hands together for 844, which is set to join the ranks of 888, 877, 866, and 855, and, of course, the venerable 800.  844 will be the sixth toll-free code. Two more are on deck for future use – 833 and 822. Note: 811 is not a toll-free area code; rather, that has been reserved for the “Dig Safe” (formerly known as “Miss Utility”) three-digit dialing code used to notify the appropriate folks of planned excavation that might disrupt underground pipes or wires.

The establishment of a new toll-free area code gives rise to potential opportunities and problems. You’ve got four months to figure out what it might mean for you.

Before we get into all that, though, we must express our surprise that the demand for toll-free numbers continues to mushroom. After all, many people are migrating from conventional landlines to cellphones and IP-based services which don’t charge for what we used to call “long distance” calls. If there is no toll, why worry about setting up toll-free numbers? We don’t know, but we do know that the demand continues unabated. 

How unabated?

Continue Reading...

Media Bureau to Singleton FM Translator Applicants: NOW you can file

The window will be open through August 30, but it may pay to act sooner than that.

The long-awaited white flag has been waved and the last lap has begun: the Media Bureau has opened the window for the 1,239 FM vintage 2003 translator applicants previously identified as “singletons”. They can now file their long-form applications (Form 349). Can’t remember whether you’re one of those lucky 1,239? Here’s a PDF of the list and, perhaps more helpfully, here’s a sliceable and diceable spreadsheet version of the same list.

The filing opportunity is not without its gotchas.

First and foremost, the deadline: the window will be open only until through Friday, August 30, 2013. The clock is ticking. [Blogmeister's Note: We originally indicated that August 30 would be a Tuesday; our bad.  That mistake has been corrected, thanks to a tip from one of our readers.]

And heads up – if you’re planning on amending your technical proposal, it does NOT pay to dilly-dally until the very last day of the window period. That’s because the long-form application (and amendments) will be entitled to protection from all subsequently-filed FM translator applications (and their amendments).

Applicants will need to include a filing fee and Form 159 with their long-forms, but since the long-forms must be filed electronically through CDBS, you’ll be reminded of that when you file. CDBS may not alert you, however, to the fact that your application will be subject to a number of limitations.

Continue Reading...

Update: Deadlines Set for Responses to CTIA Recon of Text-to-911 Bounce-Back Rules

A couple of weeks ago we reported that CTIA-The Wireless Association® had filed for reconsideration of the Commission’s new text-to-911 “bounce-back” rules. The official notice of that filing has now made it to the Federal Register, which starts the opposition and reply periods. Anyone inclined to oppose CTIA’s petition has until August 15, 2013 to do so; CTIA will then have until August 26 to respond.

Update: Reply Comment Deadline Extended in Equipment Certification Overhaul Proceeding

Last February we reported on a Commission proposal to overhaul its equipment certification procedure.  If you’re thinking about filing reply comments in response to any (or all) of the 20 or so comments that have already been filed in response to that proposal, you’re in luck.In response to a request by the American National Standards Institute Accredited Standards Committee C63 – which has concluded that it needs more time to prepare its own reply – the FCC has announced a two-week extension of the reply comment deadline.  Replies are now due no later than July 31, 2013.

Update: Comment Deadlines Set in Government/Private Sector Spectrum Sharing Proceeding

In May we reported on a Notice of Proposed Rulemaking (NPRM) looking to alter the way in which certain spectrum is to be shared between the government and private users. The NPRM has made it into the Federal Register, so we now know what the comment deadlines are. Comments may be filed by August 30, 2013, and replies by September 30.

Update: Comment Deadlines Set in Airborne Wi-Fi Rulemaking

A couple of months ago we reported on a Notice of Proposed Rulemaking (NPRM) looking to expand the use of wireless services, particularly in-flight Wi-Fi, on aircraft traveling over the contiguous United States. The idea is to establish a nationwide network of air-to-ground stations that would allow plane passengers to connect to the Internet more easily and cheaply, at least while they’re in U.S. airspace. The NPRM has now been published in the Federal Register, as a result of which the deadlines for comments and reply comments have now been set. Comments are due by August 26, 2013 and reply comments are due by September 23. And a bonus deadline! Since the FCC’s proposals include some new “information collections” subject to the hilariously-named Paperwork Reduction Act (PRA), the Commission has also invited separate comments on that aspect of the NPRM. PRA comments are due by September 9.

The CALM Act - Six Months and Counting

Complaints soar, and deadline for seeking further one-year extensions of outstanding waivers is approaching. 

Back in December, 2010, with considerable fanfare Congress passed and the President signed the CALM Act.  As its full name – the Commercial Announcement Loudness Mitigation Act – indicated, it was designed to put the kibosh on “loud commercials”. 

The Act imposed a number of detailed technical requirements on TV licensees and MVPDs, but it also provided the opportunity for an initial one-year waiver – possibly extendible for a second year.  In implementing the Act, the Commission allowed “small” stations and MVPDs essentially to have the initial one-year waiver for the asking: all that was required was a self-certification that (a) the station/MVPD met the limited standards for “small” facilities and (b) you needed the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” if you had to get the equipment sooner.  (Check out our earlier post for more information on those requirements.)

The initial one-year waivers will expire as of the first anniversary of the effectiveness of the CALM Act rules, i.e., by December 13, 2013.  The Act and the rules provide that a “renewal” of the waiver for another one-year period may be obtained.  Requests for the extension of the waiver must be filed at least 60 days prior to the expiration of the currently outstanding waiver, i.e., by October 14, 2013.  (Last year the Commission extended the deadline after the fact; it’s impossible to say whether it will do the same this time around, but since this is the second time around for CALM Act compliance, we wouldn’t bet the farm on a similar extension this year.)

Continue Reading...

Update: Deadlines Set for Reponses to Reconsideration Petitions in Experimental Licensing Proceeding

Several weeks ago we reported on the filing of several petitions seeking reconsideration of the FCC’s order from last January expanding the scope of experimental licenses. The public notice announcing those petitions has now appeared in the Federal Register, so we know the deadlines for oppositions (that would be July 16, 2013) and replies (that would be July 26) relative to any or all of those petitions.

Update: Comments Invited on Political File Component of Online TV Public Inspection File Requirement

Has it really been almost a year since the online public inspection file took effect for TV licensees? Sure enough, August 2, 2012 was the Big Date last year; since the initial flurry of public file-related activities, things seemed to have settled into a routine. But now the Commission – keeping a commitment it made back in April, 2012 – has asked for comments on how the political file component of the online public file system has affected the 240 or so stations that have been subject to that particular requirement. The responses the Commission gets could determine whether any changes should be made to the requirement before it takes effect for other stations.

The history of the TV online public file is extensive. If you’re a bit fuzzy on it all, check out our archive of reports here.

For our immediate purposes, it suffices to remind readers that, while all full-power and Class A TV stations are required to maintain the majority of their public files online (using the FCC-maintained system), only affiliates of the top-four commercial networks in the top 50 DMAs have been required to keep their political public files online. (All other stations are still required to maintain their political files the old-fashioned in-house way at least until July 1, 2014, at which point the current plan is to have everybody go online.) 

The idea behind easing the online political file obligation in that way was: (a) to make sure that the FCC’s system (which was largely untested as the August 2, 2012 start-up date) could handle the load; and (b) to “limit any unforeseen start-up difficulties to those stations that are best able to address them”, whatever that might have meant. And to take advantage of that testing phase, the Commission committed to invite comments, by July 1, 2013, on how things are going on the online political file front.

That invitation has now been issued, in the form of a public notice soliciting comments on the functioning of the political file component of the online public file system.

Continue Reading...

Number, Please! Comment Deadlines Set in Telephone Numbering Proceeding

In April we reported on a Notice of Proposed Rulemaking and Notice of Inquiry (NPRM/NOI) in which the FCC has proposed changes in how telephone numbers are obtained by certain types of providers. The ultimate upshot of the Commission’s proceeding could eventually mean serious changes in what we understand a telephone number to represent. The NPRM/NOI has now been published in the Federal Register, which (as loyal readers should know by now) sets the deadlines for comments and reply comments. Anyone interested in commenting has until July 19, 2013; reply comments are due by August 19.

Update: Comment Deadlines Set in Big House Burner Ban Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) looking to address the problem of contraband cell phone use in prisons. The NPRM has now been published in the Federal Register, which means that comment and reply comment deadlines have now been set. If you’re looking to chip in your two cents’ worth, you’ve got until July 18, 2013 to file comments, and until August 2 for reply comments.

Critical Infrastructure Proponents Seek Review of 14 GHz Turndown

Pleading asks full Commission to reverse decision of three bureaus.

We reported in May that three of the FCC’s bureaus turned down, after five years, a Petition for Rulemaking from the Utilities Telecom Council and Winchester Cator, LLC that asked the FCC to open the 14.0-14.5 GHz band for terrestrial point-to-point and point-to-multipoint critical infrastructure communications. It is probably not a coincidence that the FCC, just a few days before the rejection, had proposed use of this same band for air-ground broadband systems to facilitate Internet service for airplane passengers.

UTC and Winchester Cator have now filed an Application for Review asking the full Commission to reverse the bureaus’ decision. Comments are due on July 1, 2013 and reply comments on July 11.

5 GHz Reply Date Extended

Reply comments in the proceeding on 5 GHz unlicensed operation are now due July 24.

In February we reported on an FCC proposal that would not only add new 5 GHz frequencies but also overhaul – maybe even simplify – a confusing stretch of the rules. One possible upshot would be the opening up of 195 MHz of spectrum for Wi-Fi-type operation.

Comments were filed on May 28. The FCC has extended the date for reply comments, originally June 24, to July 24.

FCC to LPFM Applicants: Let the Uploading Begin!

Media Bureau announces LPFM filing window opening October 15 and closing October 29 (at 6:00 p.m. EDT); applications may be uploaded, but not filed, starting now

Attention all you LPFM wannabes. Mark your calendars, get your CDBS and FRN account information in order, stock up on NoDoz® and let the games begin – because the count-down has started. The Media Bureau has announced that, on October 15, 2013, the first LPFM filing window in more than a decade will be flung open, and will stay open until 6:00 p.m. (EDT) on October 29, 2013. The window will permit the filing of applications for new LPFM stations and major changes to existing stations. 

While applications can’t be filed until October 15, they may be uploaded to CDBS anytime between now and then – which gives would-be LPFM applicants plenty of time to undertake searches for channels and transmitter sites and prep their apps in anticipation of the opening of the window.

A few important threshold factors to keep in mind:

Continue Reading...

Quad Erat Demonstrandum? FCC Seeks Comment on MMTC Study

Despite the FCC’s efforts in its 2002 and 2006 quadrennial review proceedings to relax (or maybe even eliminate) its newspaper-broadcast cross-ownership (NBCO) prohibition, that prohibition is still alive and kicking after nearly 40 years. In the 2010 quadrennial the NBCO is again in the Commission’s sights. And now the Minority Media and Telecommunications Council (MMTC) has provided arguable impetus for the Commission to try to pull the trigger, again.

MMTC has submitted a specially-commissioned study entitled “The Impact of Cross Media Ownership on Minority/Women Owned Broadcast Stations” (Study). Prepared by well-respected BIA/Kelsey Chief Economist Mark Fratrik, the Study presents evidence that “the impact of cross-media ownership on minority and women broadcast ownership is probably negligible”. In other words, the Commission could probably dump the NBCO without having to worry about adversely affecting minority- or female-owned stations. Since the FCC’s 2002 and 2006 quad efforts were criticized (by, among others, the U.S. Court of Appeals for the Third Circuit) because of the Commission’s supposed lack of attention to minority/female considerations, the Study helps fill in that arguable gap.

Based on questionnaire responses provided by only a relatively limited sample of broadcast stations, the Study is, by its own terms, “not dispositive”. Still, in light of its sponsor and its author, it may be viewed as a significant contribution to the record.

The FCC has invited public input on the Study. Comments are due by July 22, 2013; reply comments by August 6.

Health Effects of Radio Waves: Effective Date of New Rules Set, Also Comment Deadlines

Back in April we reported on the FCC’s most recent foray into the thorny issue of health effects of radio waves. The FCC adopted minor tweaks to its existing rules, proposed further tweaks, and sought comments on broader issues, including the controversial question of whether the current radio-frequency exposure limits are safe, and if not, what they should be.

The document has now been published in the Federal Register, in two separate parts. The first part sets out the newly adopted rules; the second part poses the questions on which the Commission has requested comment.

Publication in the Federal Register establishes both (a) the effective date of the rule changes that were adopted and (b) the deadlines for comments on the out-for-comment questions. The adopted changes will become effective on August 5, 2013. Comments will be due on September 3, 2013, and reply comments on November 1.

White Space Database Update

The FCC requests comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC.

In separate public notices, the FCC has asked for comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC. (The FCC paperwork misidentifies the second company as "Keybridge Global Inc.") Their respective test reports are here and here. Mark your scorecards: once approved, these will be database managers numbers 3 and 4.

Prior CommLawBlog entries on these tests are here and here.

Comments on both tests are due on June 13, 2013 and reply comments in June 20.

For background on the databases and what they do, see this article.

[Blogmeister’s Note: In keeping with the practice we introduced with our last white space database post, we have sought to capture the essence of these recent developments poetically:

An FCC Haiku to the Public

Key Bridge and Google
filed database test reports.
Comments?  We’re all ears.]

Update: Effective Date Set for Text-to-911 Bounce-Back Rules

The new requirements relative to text-to-911 bounce-back messages have been published in the Federal Register, which means that they are technically set to become effective on June 28, 2013. As a practical matter, that effective date is meaningful only to the lawyers, since the “bounce-back” obligation won’t have to be implemented by carriers until September 30. But the Federal Register publication does set the dates for seeking reconsideration (June 28) and judicial review (July 29).

2013 Reg Fees: The FCC Proposes a Couple of Alternatives

Commission looks to update its methodology for calculating regulatory fees, but proposes a possible alternative approach to cushion the blow this year.

One of the time-honored rites of spring – at least at the FCC – is the release, every April or May, of a Notice of Proposed Rulemaking setting out the schedule of regulatory fees the Commission thinks it may impose on all regulatees come August-September. Historically, we here at CommLawBlog have tried to be Johnny-on-the-spot in letting our readers know the fees that have been proposed, even though the fees that eventually adopted (usually in July) may vary here and there from the initial proposal.

But this year is different.

Instead of providing one set of proposed fees, the Commission has given us a Notice of Proposed Rulemaking (NPRM) laying out two sets of possible fees . . . because it’s in the process of a much-needed update of its calculation methodology, and it’s still not sure: (a) whether the new approach is exactly right and, even if it is, (b) whether that new approach should be applied this year. Depending on which method it ultimately adopts, the fees for some broadcasters could swing by a couple of thousand dollars. As a result, we’ve had to prepare a more elaborate table reflecting the proposals, so we’re a day or so behind our usual curve. Please bear with us.

To understand what’s going on here, you have to understand how reg fees are calculated.

Continue Reading...

FM Translator Application Update: Last Chance Settlement Window Opened

Media Bureau provides MX applicants one last opportunity to avoid going to auction.

If you’ve still got one or more FM translator applications pending from the infamous 2003 window, listen up! The Media Bureau has opened a 62-day “Settlement Period” – up to and including July 22, 2013 – during which applicants with mutually exclusive (MX) applications may attempt to resolve their differences through engineering amendments or settlements.

For those of you who may have forgotten exactly which (if any) of your applications may still be alive and kicking, the Bureau has provided a list of the apps that the Bureau thinks are eligible for settlement (i.e., applications MX with one or more other applications). You can check that list out here (or in a more sliceable and diceable Excel version here). There are a total of 539 MX groups, so you’d better start looking now.

Important alert: The Bureau recognizes that its list may not be 100% complete, and it expressly encourages anybody who believes that one or more applications may have been omitted to get in touch with the Bureau immediately. Remember, to be on the list, your application has to be MX with at least one of the applications already listed.

Continue Reading...

Update: Deadlines for Indecency Comments Extended

If you have the vague sense that you might like to file comments in response to the bizarre invitation for comments relative to the FCC’s indecency policies, but you’re still trying to figure out exactly what those policies are in the first place, you're in luck. The General Counsel’s office and the Enforcement Bureau have extended the deadlines. Comments are now due by June 19, 2013 and reply comments by July 18. Unfortunately, the public notice announcing the extensions does not shed any more light on the indecency inquiry. As previously reported here, the inquiry posed on April Fool’s Day is, at best, cryptic and unilluminating, so much so that it’s difficult to imagine that anything useful could possibly come from it. But for those of you who may be champing at the bit to toss in your two cents’ worth, you now have a little more time within which to hone your prose.

FCC Rejects FiberTower's Effort to Keep Auctioned Licenses

The full FCC agrees with the Wireless Bureau that FiberTower’s failure to construct resulted from its own business decisions.

FiberTower loses again. The full FCC has backed the Wireless Telecommunications Bureau’s decision to cancel 698 licenses held by the company in the 24 GHz and 39 GHz auctioned fixed microwave bands, for failure to construct sufficient facilities.

As we explained last December in our sister publication FHH Telecom Law, FiberTower is not alone in its difficulties. Nearly all of the area-wide licensees in the four auctioned bands used to communicate between fixed points – at 24, 28, 31, and 39 GHz – have had difficulty in meeting their renewal obligations. In part the problems trace to a shortage of suitable equipment, and in part to markets that did not develop as expected. FiberTower, ironically, was one of the more commercially successful licensees, so the FCC action against it seems particularly harsh.

The usual duration for microwave licenses of all kinds is ten years. When an area-wide licensee applies for renewal after that period, it must show it is providing “substantial service.” The FCC rules define this, unhelpfully, as “a service which is sound, favorable, and substantially above a level of mediocre service which just might minimally warrant renewal during its past license term.” (Confusingly, this says the level of service required for renewal is substantially above the level of service required for renewal.)

Thanks to a “safe harbor” policy, a licensee is deemed to be providing “substantial service” if it demonstrates that it has constructed four links per million population in its service area.

Continue Reading...

FCC Seeks Comment on Receiver Standards - Again

Request reopens matter laid to rest just six years ago.

The FCC has reopened the difficult question of technical standards for radio receivers.

Everyone agrees that poor receivers impair efficient use of spectrum. In particular, receivers that respond to a wider swath of frequencies than necessary can receive interference from unwanted signals close by the intended signal. Just ask LightSquared, whose plans to use mobile satellite frequencies on terrestrial towers failed because its signal was close enough to GPS frequencies to overpower some GPS receivers.

Less selective, more interference-prone receivers are cheaper to manufacture. Market forces are not much help because a more selective (and hence more expensive) receiver is rarely of immediate benefit to the purchaser. The improved receiver does benefit other users seeking to operate on frequencies nearby, as better GPS receivers would have benefited LightSquared. But the manufacturer gains no competitive advantage to offset the higher price. So manufacturers, especially of consumer equipment, tend to supply the least selective (and least expensive) receivers that will work in the current spectrum environment.

A situation like this, where market forces act against the public good, is a classic set-up for regulation.

The FCC tried. Just over ten years ago it issued a Notice of Inquiry on whether to include “receiver interference immunity performance specifications” in its rules. After sifting through sixty-odd comments, and then waiting a few years, the FCC terminated the proceeding in a terse one-pager.

Now the issue is back.

Continue Reading...

Update: Equipment Certification Overhaul Comment Deadlines Set

In February we reported on the Commission’s Notice of Proposed Rulemaking looking to revamp its equipment certification process. That notice has now hit the Federal Register. As a result, we now have the deadlines for comments and reply comments in response to the notice. Comments are due by June 17, 2013, and replies by July 17.

LPFM Update: Effective Date Set for Remaining Changes from 6th Report and Order

In December of last year we reported on the Commission’s “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O was published in the Federal Register the following month, but (as we reported in January) that didn’t mean that all the new rules went into effect back then.

Rather, the changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 – and the revised version of FCC Form 318 – all had to be run past the Office of Management and Budget for its approval. (Those changes all involved “information collections” requiring OMB review thanks to the Paperwork Reduction Act.)

The Commission has now announced that OMB is happy with the changes. As a result, they will all take effect on May 23, 2013. It’s unlikely that the changes will have any immediate impact, since they relate primarily to LPFM applications, and there’s currently no opportunity to file for new LPFM authorizations. However, as we all know, the Commission is hoping to be able to open a window for new LPFM applications sometime in the near future – October, 2013 is one target date, although many are doubtful that the Commission will be able to hit that target. Anyone who expects to be filing any LPFM apps in that window should be sure to make note of the effectiveness of the 6th R&O changes.

Update: Indecency Comment Deadlines Established

Indecency public notice hits the Federal Register.

Earlier this month we reported on an odd public notice soliciting comments about the FCC’s indecency policy. That notice has now been published in the Federal Register – but that doesn’t mean that the notice makes any more sense now than it did when it first appeared.

The title of the notice still says that the FCC is seeking “comments on adopting egregious cases policy”, but that’s the only time the term “egregious cases policy” shows up. As a result, it’s far from clear exactly what we’re supposed to be commenting on. You would think that, if the FCC does have some “egregious cases policy” currently in effect – which is what the full text of the public notice released on April Fool’s Day indicated – the Commission might let us all in on the precise details of that policy so that we might be able to comment on it at least quasi-intelligently. Apparently not.

As we noted in our initial post, the utility of any record likely to be compiled in response to the notice’s nebulous invitation for comments is dubious. How, after all, is a commenter supposed to organize his/her/its comments in a coherent and useful way? And how can the Commission’s staff be expected to process those comments? Without any apparent context or direction, it’s hard to see what the staff can do with them.

If this is how the Commission proposes to deal with the indecency issue, that issue is likely to be with us, unresolved, for many years to come.

In any event, the Federal Register publication establishes the deadlines for comments in response to the notice. Comments are due by May 20, 2013, and reply comments by June 18.

Failure to Communicate? FCC Proposes New Reporting Requirements for Blocked Rural Calls

New quarterly form would theoretically shed more useful light on chronic problem, but proposed exceptions could gut the form’s effectiveness.

Although perhaps not widely acknowledged or often discussed, the problem of “blocked” or unsuccessful long-distance telephone calls to rural customers is a serious one. For at least a couple of years interested parties have urged the Commission to do something about it. And now the FCC thinks that it’s come up with a way to begin to address this failure to communicate:  new recordkeeping requirements, and a new report to be filed quarterly by facilities-based originating providers (with some notable exceptions). 

The report would theoretically allow the Commission to better monitor the delivery of long-distance calls in rural areas. In a Notice of Proposed Rulemaking (NPRM), the FCC has invited comments on the proposed requirements.

So what’s the problem the FCC is addressing here?

Continue Reading...

Auction 94 Update: Bidder List, Final Procedural Rules Set

With just 12 days to go before Auction 94 is set to kick off, the FCC has identified the 85 bidders who have qualified to participate in this year’s FM Construction Permit Sell-a-Thon. At the same time, the Commission has laid out the final ground rules that will govern both the auction and everybody who filed an application, whether or not they actually opt to participate in the auction.

As we previously reported, the FCC initially received 109 applications, but, as so often happens, the herd got thinned along the way: two dozen applicants have dropped out of the running and will only be watching from the sidelines when the action cranks up on April 23, 2013.

In order to assure their place in the race, each of the 85 surviving bidders ponied up upfront payments ranging from a paltry $750 to a considerably more robust $250,000+. Upfront payments establish a bidder’s initial eligibility for the auction and the permit(s) which each bidder may bid for. When the bidding starts, however, nothing – other than common sense and financial ability – limits the amount(s) that can be bid.

Continue Reading...

700 MHz B Block Build-Out Deadline Extended For Many, But Not All

With interoperability issues still unresolved, FCC gives many B Block licensees a few more months of breathing room.

If you’re an active Lower 700 MHz band B Block licensee with an interim four-year construction benchmark deadline before December 13, 2013, here’s some good news: unless you happen to fall within a couple of exceptions, the FCC has extended your construction deadline to December 13, 2013.  This tracks a similar extension granted to Lower 700 MHz A Block licensees a couple of months ago.

The construction deadline in question stems from Section 27.14(g), which requires 700 MHz B Block folks both to provide signal coverage and to offer service over at least 35% of the geographic area of their licenses by one  of two dates, either (1) June 13, 2013 (if the initial authorization was granted on June 13, 2009 or earlier), or (2) within four years of the initial license grant.

Since at least 2009, a number of 700 MHz licensees have been complaining that the FCC’s approach to the 700 MHz band – i.e., developing two separate and distinct band classes within the Lower 700 MHz band – has given rise to interoperability issues that have in turn impeded construction.  In March, 2012, the Commission agreed to explore interoperability issues, but beyond the issuance of a Notice of Proposed  Rulemaking, nothing has come of that “Interoperability Proceeding” to date.  Meanwhile, the construction clock has continued to tick down. 

The announced extension reflects the FCC’s recognition that its own failure to act thus far has put some folks in a bind.

Continue Reading...

Update: Effective Date of New Cell Phone Booster Rules Announced

Last February we reported on the FCC’s adoption of a new comprehensive regulatory approach to cell phone boosters. The Report and Order setting out that approach has now made it into the Federal Register. As a result, many – but not all – of the new rules will take effect as of May 13, 2013. Which of the amended rules won’t kick in then? Why, those would be Sections 1.1307(b)(1); 20.3; 20.21(a)(2); 20.21(a)(5); 20.21(e)(2); 20.21(e)(8)(i)(G); 20.21(e)(9)(i)(H); 20.21(f); 20.21(h); 22.9; 24.9; 27.9; 90.203(q); 90.219(b)(1)(i); 90.219(d)(5); and 90.219(e)(5). Those all involve “information collections” and, thus, must first be blessed by the Office of Management and Budget thanks to the hilariously-named Paperwork Reduction Act. Check back here for further updates on that front.

Please keep in mind the crucial distinction between cell phone boosters (at issue here) and cell phone jammers. The latter remain illegal.

The Chill Is On: Bureau Freezes Full-Power/Class A TV Applications to Increase Facilities

Need for a “stable database” to assist in development of “repacking methodologies” puts TV mod applications on ice.

Attention all full-power and Class A TV licensees!!! The Media Bureau has placed a freeze on the filing and processing of most modification applications for full power and Class A television stations, effective April 5, 2013

As of April 5, the Bureau will no longer routinely accept any applications from full-power or Class A television stations proposing modifications that would increase the station’s currently authorized (by license or granted construction permit) contour in any direction. The single exception to the freeze applies to certain Class A stations filing minor change applications to implement their transition to digital broadcasting. (The freeze may also be waived for other licensees in exceptional circumstances.)

Also frozen is the processing of any already pending application that would increase a station’s protected service area in any direction. However, in announcing the freeze the Bureau has provided that applicants with such pending applications will have a 60-day period to amend to specify facilities that do not increase the station’s service area. Any such applications that are not amended will be held by the Commission and processed only after the adoption of final rules regarding the Incentive Auction.

Continue Reading...

FM Translator Application Update: Bureau Announces Ten-Day Window for NCE "De-Selection" Amendments

Window follows rejection of Request for Declaratory Ruling looking to get multiple NCE applications dismissed.

We’ve got good news for you if (1) you’ve got an FM translator application still pending from the 2003/Auction 83 filing window and (2) you identified yourself as a noncommercial educational (NCE) applicant when you first filed the application. The Media Bureau has announced that, between April 8-17, you will have an opportunity to “de-select” that NCE filing status. If you want to keep your application alive, you’ll take advantage of that opportunity.

In announcing this amendment window (and in a separate letter ruling), the Bureau made short work of a recently-filed Request for Declaratory Ruling which looked to thin the herd of pending applications by effectively prohibiting such amendments.  

The problem being addressed here arose when the Auction 83 window first opened in March, 2003. Back then, applicants seeking NCE authorizations were permitted to participate in such proceedings. At the time, NCE applicants were explicitly instructed to designate their status as “noncommercial educational” in the box provided on the Form 175.

Continue Reading...

Update: New Comment Deadlines Announced in Internet-on-Airplanes Proceeding

Remember the Commission’s proposal to accord its new Earth Station Aboard Aircraft (ESAA) service co-primary allocation status for its 14.0-14.5 GHz uplink operations? (Hint: ESAA is the service that’s expected to give us all easy Internet access on airplanes.) If you’re planning on filing comments on that proposal, you’re in luck! It turns out that the FCC miscalculated the comment deadlines when it first published the deadlines in the Federal Register a couple of weeks ago. So you can disregard the previously announced dates (which we reported on here. According to a corrective notice in the Federal Register, comments are due by May 22, 2013 and reply comments are due by June 21.

[Blogmeister's Note:  These comment dates affect only the details of spectrum sharing between ESAA and other satellite services. If you have views on the wisdom (or its absence) of Internet use on airplanes, the FCC no longer wants to hear about it. You can, however, write to your congressional representative or your senator.]

FM Translator Application Update: Bureau Provides More Guidance on Preclusion Showings

Bureau gently prods applicants in the proper direction with a public notice that reads like “Preclusion Showings for Dummies"

As we have previously reported, FM translator applicants whose applications are still alive and kicking are subject to a variety of filing deadlines looming in the very near future. Different deadlines apply, based on whether the application has been identified by the Media Bureau as (a) one of 713 “singleton” applications or (b) one of a separate batch of 639 applications not satisfying the “singleton” criteria.

Some, but not necessarily all, of those 1,352 applicants must file “preclusion showings” as part of their required submissions. Apparently, from the filings that have already rolled in the door, the Bureau’s staff has concluded that at least some of the affected applicants haven’t fully grasped what’s expected of them. Accordingly, the Bureau has tried, tried again, this time by issuing yet another public notice providing further “guidance” or “clarification” of the filing requirements.

The notice, which reads like “Preclusion Showings for Dummies”, is relatively short and to the point. Where preclusion showings are required, the notice thoughtfully bold faces the word “required” as an additional helpful visual cue. The concepts don’t appear to be particularly complicated (but then we didn’t think they were particularly complicated when they appeared in the Fourth Report and Order or in the previous public notices). In any event, anybody with a translator application still in the hunt should be sure to review the public notice carefully and to follow its directions thoroughly.

Continue Reading...

FM Translator Application Update: Bureau Announces Window for Filing of Preclusion Showings

639 surviving applicants face the next hurdle in the now decade-long contest.

In the long-running reality show “Survivor – 2003 FM Translators”, if you happen to be a player whose FM translator applications haven’t yet been kicked off the island, heads up: the Media Bureau has just announced the next challenge. This time affected applicants have been given a 19-day window (from April 1-19, 2013) within which to submit their Preclusion Showings.

Which applications are subject to the challenge? Any of the 639 still-pending FM translator application originally filed in the 2003 window (for Auction 83) which specifies a transmitter site that is (1) inside a Spectrum Limited market and/or (2) within 39 km of any Spectrum Limited Market Grid. For those of you who may be unclear about whether you’re still in the game (and, thus, facing this next chore), the Commission has provided a list of all 639 lucky applications. You can find a PDF version of the list at this link, but we suspect that you may find this MS-Excel version a bit more useful in terms of slicing and dicing the data on the list, which spans ten single-spaced pages. Here’s the Bureau’s explanatory description of the list:

Attachment A lists each Auction 83 Filing Window tech box proposal for which a Preclusion Showing amendment must be electronically submitted by the April 19 deadline. The list is sorted by the state in which the specified community of license is located. The “Market” column lists, if applicable, the Fall 2011 Arbitron Market number as set forth in Appendix A in the Fourth Report and Order. Each market designation was based on the location of the proposal’s specified transmitter site. The “In SL Buffer” column identifies with a “Yes” each proposal that specifies a transmitter site that is within 39 km of at least one Spectrum Limited Market Grid.

And what the heck is a “Preclusion Showing” anyway?

Continue Reading...

Audio Division to Permittees: Get License Applications Filed Within 30 Days of Permit Expiration . . . Or Else!

Facilities covered by a permit must in any event be completely constructed by the expiration date.

Attention, everybody who is currently sitting on, or may someday be sitting on, a construction permit for a new radio station. The FCC’s Audio Division has announced, in no uncertain terms, that when the rules say that a covering license application must be filed before the expiration of the underlying construction permit, they really mean it . . . sort of.

The problem here arises from Section 73.3598(e) of the Commission’s rules, a section admirable for its concision and directness:

Any construction permit for which construction has not been completed and for which an application for license has not been filed, shall be automatically forfeited upon expiration without any further affirmative cancellation by the Commission.

Your ordinary person reading that would likely understand it to say that any permittee who doesn’t get the covering license application on file by the permit’s expiration date is out of luck. Period. End of story. That is, after all, precisely what the rule says.

But thanks to the Audio Division’s latest reading of the rule, permittees will have an extra 30 days within which to file their license applications, provided, of course, that they did in fact complete construction before the permit’s expiration.

The underlying story starts back in 2004, when an FM station in West Virginia obtained a CP to construct new facilities after its then-authorized tower had been destroyed. The permit specified the conventional three-year construction period, with an expiration date in 2007. 

Wouldn’t you know it, 2007 came and went, but no license application got filed.

Continue Reading...

Auction 94 - The Applications Are In

Auction 94, featuring 112 FM construction permits, is on track. The FCC has issued a notice  announcing that 109 potential bidders submitted applications to participate in the upcoming auction of 112 FM construction permits.  The auction is still scheduled to begin on April 23, 2013.

A total of 109 prospective bidders tossed in applications. Of those, 88 made the initial cut: the Commission has concluded that their applications were complete and acceptable, so they are assured of a bidding paddle and a seat in the bidders’ section (assuming, of course, that they get the necessary upfront payment filed in time). The other 21 applicants? Their submissions were lacking in one or another respect, so for the time being they’re on the outside looking in.  But we don't need to exile them to Loserville yet.  All 21 of the not-yet-in-the-door applicants should be receiving an overnight letter from the Commission laying out “the information that is required to make its application complete.” They’ll have until March 18, 2013 to resubmit corrected applications.

Any bidder – whether one of the 88 or one of the 21 – who wants to participate in the bidding  is required to wire the upfront payment to the FCC within the next week by 6:00 p.m. Eastern time on Monday, March 18, 2013.  Readers who plan to participate in the auction are advised to send your money to the FCC well before the deadline to avoid any unexpected delays.  The FCC is not sympathetic to bidders that wait until the last day; historically, the FCC has disqualified some late-paying bidders who claimed that their lateness was the fault of their banks.

Continue Reading...

Update: Deadline Set for Oppositions to Petitions for Reconsideration of Latest LPFM Decision

Last December the Commission released its Fifth Order on Reconsideration and Sixth Report and Order in the long-running LPFM proceeding. Five parties weren’t 100% happy with the results so – surprise, surprise! – they have filed for reconsideration of various aspects of the FCC’s decision. The petitioners (with links to their respective petitions) are:

Prometheus Radio Project

Michael Couzens and Alan Korn

REC Networks

LET THE CITIES IN!!

LifeTalk Radio, Inc.

According to a notice in the Federal Register, if you want to oppose any (or all) of these petitions, you have until March 21, 2013Replies to any oppositions will be due by April 1.

While the opening of a new pleading cycle – with the consequent opportunity for a pleading war – is often a harbinger of delay, our guess is that that’s not the most likely scenario here. As we have reported, the Media Bureau is doing its darnedest to tee the next LPFM application window up as quickly as possible (maybe even by next October, if the Chairman gets his wish). It’s unlikely that a handful of recons will distract the Bureau from that mission, but you never know. In the meantime, look for continued progress in the Bureau’s efforts to clear the FM translator application dead wood, a necessary antecedent to the LPFM window.

Revised Form 323 Out for Comment at OMB

Proposed change in the form would allow individuals to identify themselves as members of as many as five separate racial categories, simultaneously. But the results may not help the Commission get to where it seems to want to go.

The Federal Register on March 1 has informed us that the FCC’s Broadcast Ownership Report (FCC Form 323) is back at the Office of Management and Budget (OMB) for review. According to the notice, the Commission is proposing a change in the question seeking the racial identification of attributable interest holders. You can get to the OMB’s files on the matter at this link.

The form currently in effect lists five racial categories and then a catch-all “Two or more races”; respondents are required to select only one of those six options. Apparently, though, OMB changed its policies governing collection of data relative to race and ethnicity last September. (According to the FCC, that change is reflected in an OMB action dated September 13, 2012, cited by the FCC as “Notice of Office of Management and Budget Action (NOA), dated 09/13/2012”. We were unable to track down a copy of that action, but we’re willing to take the Commission’s word that it exists somewhere. If any reader can point us to a site where we might find the OMB action in question, we’d be much obliged.) As a result, the Commission is proposing to eliminate the “Two or more races” option and to allow respondents to select as many of the other racial options as may apply to the individual who is the subject of the response.

While the elimination of the generally uninformative “Two or more races” might be thought to provide a greater degree of useful data concerning the racial composition of commercial broadcast ownership, we’re not confident of that.

Continue Reading...

Update: Reply Deadline Extended in 3.5 GHz Proceeding

Postponement allows time after March 13 workshop.

Last December we reported on a proceeding that proposes novel spectrum management techniques to accommodate small cell operation in the 3.55-3.65 GHz band.

The FCC has moved back the due date for reply comments until April 5. This will allow time for reflection following the FCC’s public workshop on the 3.5 GHz issues to be held on March 13.

Update: Comments Sought on Alien Ownership Proposal

Last September we reported on a request advanced by the Coalition for Broadcast Investment seeking "clarification" of the FCC's broadcast ownership limitations on alien ownership. You can find a copy of the Coalition’s letter request here. As summarized by the Commission, the proposal asks the Commission to “clarify that it will conduct a substantive, facts and circumstances evaluation of proposals for foreign investment in excess of 25 percent in the parent company of a broadcast licensee, consistent with and in furtherance of its authority under 47 U.S.C. § 310(b)(4)

The Commission has now solicited comments on the proposal. If you have any thoughts about the Coalition’s suggestion that you’d care to share with the Commission, you’ve got until April 15, 2013 to submit them; reply comments may be filed by April 30. You can file on paper, or electronically through ECFS (referencing MB Docket No. 13-50).

FM Translator Application Update: Singleton List Released, Long-form Deadline Set

The FM translator application juggernaut rolls on. 

Having processed the Selections Lists and Caps Showings filed in January and having, as a result, tossed several thousand applications earlier this month, the Media Bureau has sifted through the remaining rubble and identified 713 singleton applications that may be grantable in relatively short order. The lucky 713 applications: (a) are apparently not mutually exclusive with any other applications filed back in the 2003 filing window and (b) don’t run afoul of the technical limitations imposed in last year’s Fourth Report and Order. (Helpful reminder: To satisfy those limitations, an application must be: (1) outside all Spectrum Limited markets and (2) not within 39 km of any Spectrum Limited market grid.)

Heads up, though. If you’re on the singleton list, you’ve only got until March 28, 2013 to prepare and file your long-form application (Form 349), along with any required filing fee and Form 159, in order to stay in the game.

The public notice announcing the singleton list also includes some guidelines relative to what you can and can’t do in the long-form application. Attention should be paid to those details, because a failure to comply could result in dismissal. It would be a shame to have come this far in the application process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

Continue Reading...

With Raft of Threshold Questions, FCC Starts Take-Back Process for 470-512 MHz

Statute requires the band to be cleared of public safety users by 2021 and auctioned by 2023.

In most parts of the country, the frequency band 470-512 MHz, also called the “T-band,” is better known as TV channels 14-20. But 11 major metropolitan areas use parts of the band for public safety communications, like the two-way radios in police cars, ambulances, and fire vehicles. These users include some of the nation’s biggest first responders, such as the Los Angeles County Sheriff’s Department and the New York City Police Department.  Other licensees also use the band for two-way communications.

Last year, as part of the Middle Class Tax Relief Act (most of which has little to do with middle class tax relief), Congress gave public safety entities access to additional spectrum in the 700 MHz band for a nationwide first responder broadband network. But it also required that public safety licensees give back spectrum they use in the T-band, which would then be auctioned for commercial services. Public safety users would have to vacate the T-band by 2021 for a spectrum auction by 2023. The auction revenue is supposed to be made available to current public safety licensees to help offset the cost of relocating their systems to other frequencies.  Oddly, the statute is silent as to the non-public safety users of T-band.

There has been talk among public safety licensees of asking Congress to repeal the T-band “give back” provisions. Unless and until such a repeal occurs, though, the FCC has its marching orders. In keeping with those orders, the FCC has released a public notice to investigate the implications of the law for public safety and other land mobile radio licensees. The public notice seeks detailed information on the extent and nature of public safety radio systems in the T-band, whether some of the current users can migrate to the new first responder broadband network or other public safety frequency bands, and the potential costs of such a relocation.

Comments in response to the public notice are due on May 13, 2013, with reply comments due on
June 11.

Review-2012/Preview-2013 Webinar - Sign Up Now!

Attention, all you CommLawBlog readers!

We’re presenting a webinar this Thursday, February 14 at 3:00 p.m. EST in cooperation with a number of our state broadcast association friends. It turns out that we have a limited number of open spaces – so if you would like to listen in, for free, here’s your chance.

The webinar will feature Kevin “The Swami” Goldberg addressing a number of hot button issues on the intellectual property front and Dan Kirkpatrick updating us all on the FCC regulatory front. Serving in the color commentary/peanut gallery role will be Frank Jazzo, Scott Johnson and Harry Cole.

The 90-minute agenda will include discussions of:

  • ASCAP/BMI/SESAC issues
  • The Mission Abstract Data litigation
  • The Aereo/Aerokiller cases
  • Webcasting/streaming royalty calculations
  • Royalties for performance of sound recordings
  • The FCC Ownership Proceeding
          Newspaper/Broadcast
          TV JSA attribution
  • The incentive spectrum auctions/repacking
  • TV online public file
  • Ownership reporting

If you’d like to sign up, click on the button below to get to the registration page. Remember, space is limited.

TVStudy: Changes in TV Coverage Calculations Devised For Incentive Auctions

OET seeks comments on alternative to traditional OET-69 methodology.

The FCC’s Office of Engineering and Technology (OET) wants to sharpen its pencil when it comes to predicting TV station coverage. The National Association of Broadcasters (NAB) doesn’t think that that’s a good idea – not just now, at least.

Who cares? You should, if you’re a full-service or Class A TV licensee about to be forced into deciding whether (and if so, how) you will participate in the incentive auction process currently being devised by the Commission.

OET has announced, pretty much out of the blue, that it has developed new software – dubbed TVStudy – which the Commission “plans to use in connection with” the incentive auctions. At issue is the way the FCC plans to utilize OET-69 in the implementation of the auction process.

Continue Reading...

Telecom Providers and Manufacturers: Accessibility-Related Recordkeeping and Certification Requirements Are Now in Effect

For some time already many, if not most, communications service providers and equipment makers have had to ensure accessibility to the disabled; now they’ve got to keep records of those efforts AND separately certify to the FCC that they’re in fact keeping those records.

If you happen to be subject to Section 255, 716 and/or 718 of the Communications Act, the FCC wants to make sure that you know you’ve got some recordkeeping to do – and some reporting, too. (Fuzzy on whether you’re in that club? If you are not a communications service provider or equipment manufacturer, you need read no further. If you do happen to fall into one or both of those categories, you should read on, although it may turn out that you, too, are off the hook.)

The new recordkeeping requirements – which took effect on January 30, 2013 – arise from Congress’s repeated efforts to ensure that telecommunications services and equipment are accessible to folks with disabilities. Thanks to those efforts, certain service providers and manufacturers must take affirmative steps to provide accessibility to the extent achievable. 

And now, in addition to actually taking those steps, the affected companies must also maintain records of the steps they’ve taken . . . and they’ve also got to confirm to the FCC, once a year, that they are indeed maintaining such records.

What kind of recordkeeping are we talking about?

Continue Reading...

Bureau Disposes of FM Translator Applications

As drive toward an LPFM auction moves forward, applications get tossed for real while Selection Lists/Caps Showings get released, sort of.

That loud flushing noise you may just have heard was the sound of about 3,000 FM translator applications heading down the tubes. Having analyzed the various Selection Lists and Caps Showings submitted by translator applicants late last month, the Media Bureau has announced that it has now tossed “approximately 3,000” vintage 2003 translator applications. In the same public notice, the Bureau has also announced the “release” – and we use that term loosely – of all of the underlying Selection Lists and Caps Showings submitted during the recently closed Selection Filing Window.

Which applications got thrown out and which didn’t? Good question. The Bureau’s one and only (apparently) public notice on the subject doesn’t include a list of the dismissed applicants, or applications, or file numbers, or any of the other conventional data you might expect. If you want to know any specifics, the staff apparently expects you to head online to CDBS, where you can probably figure out precisely which applications got dismissed and which continue to live on if you’ve got boatloads of (a) time and (b) motivation and (c) luck.

Continue Reading...

Update: Rural Microwave Flexibility Policy Now In Effect

Another element of the FCC’s overhaul of the wireless backhaul system is now in place.

Looks like it’s full speed ahead for another aspect of the Commission’s overhaul of the wireless backhaul regime. As we reported two days ago, the effective date of the rule requiring registration of TV pickup licenses has just been announced (that would be April 1). And the FCC has followed up with a Federal Register announcement that the Rural Microwave Flexibility Policy adopted last August – another component of the backhaul overhaul – has now been approved by the Office of Management and Budget. As a result, the Policy is now in effect.

For those not up on the details of the Policy, here’s the scoop.  Ordinarily, the FCC requires that Fixed Service licenses be able to carry a minimum payload per megahertz of radio bandwidth. But the Commission will “favorably consider” requests for waiver of those requirements if the following criteria are satisfied:

Continue Reading...

Some TV Broadcasters Relieved of Obligation to Upload Some (But Not All) Issues/Programs Lists to Online Public Inspection File

But paper copies of those lists must still be maintained for public inspection at the station, and the waiver is subject to some limiting conditions

Full-service and Class A TV licensees take heart! The Media Bureau may have let many of you off the hook with respect to one component of the online public inspection file requirement.  In particular, the Bureau has announced that stations whose licenses were not renewed during the previous renewal cycle may opt not to post to the FCC’s online public file system their quarterly issues/programs lists relating to the earlier license terms covered by those filed-but-not-yet-granted renewal applications.

Before you start doing the Snoopy dance, be aware that there are at least three gotchas here.

Some background first. 

As we all know, full-service and Class A TV folks are required to upload their public inspection files to the FCC-maintained online system by February 4. The public file rules (for both commercial and noncommercial licensees) require that those files include quarterly issues/programs lists dating back to the date on which the grant of their last renewal application became final. 

The problem is that the last renewal grant, for many TV licensees, dates back into the 1990s.  That’s because many TV renewal applications from the last renewal cycle still haven’t been granted, in many (if not most) cases thanks presumably to the dreaded “enforcement holds” arising from pending complaints lodged against the station. As a result, in order to comply precisely with the public file rule, a TV licensee whose last renewal is still in deferred status would have to upload an extra eight years’ or so worth of issues/programs lists.

Continue Reading...

Update: Effective Date Set for Registration Requirement for TV Pickup Licenses

Mandatory registration is one element of FCC's expansion of wireless backhaul opportunities.

If you’ve got a TV pickup license in the 6875-7125 MHz or 12700-13200 MHz bands, you’ll be needing to register your stationary receive-only sites in the Commission’s Universal Licensing System (ULS) in the near future (if you haven’t done so already). Section 74.605, the Commission’s rule requiring such registration will finally become effective April 1, 2013, according to a notice in the Federal Register.

Long in the works, the “new” requirement was actually adopted nearly 18 months ago – back in August, 2011 – as part of the Commission’s overhaul of the wireless backhaul process. That overhaul is intended to make more spectrum available for fixed wireless operations serving as the “middle mile” links that move end-user traffic between cell towers and the core network. The increased spectrum availability is to be accomplished by allowing such services to share spectrum already used by TV pickup licenses in the 6875-7125 MHz or 12700-13200 MHz bands. But effective sharing will require coordination of use of the frequencies, and mandatory registration of receive-only sites will obviously facilitate such coordination.

Of course, it’s been a good idea to register such sites for some time, as we (and our friend and reader, Dane Ericksen) were recommending nearly two years ago. The Commission has permitted ULS registration of TV pickups since 2008 as an optional aid to coordination in the band. But come April, “optional” registration will become “mandatory” registration.

The delay in making Section 74.605 effective is a bit puzzling. Since the rule constitutes an “information collection”, it had to be run through the Paperwork Reduction Act process at the Office of Management and Budget. But according to the FCC’s Federal Register notice, OMB had signed off on the rule back on March 27, 2012. Whatever the reason for the one-year hold-up in making the rule effective, though, the fact of the matter is that we now know that it will be effective on April Fool’s Day. If you’ve got a TV pickup license in the 6875-7125 MHz or 12700-13200 MHz bands and you’ve been dragging your feet as far as registration goes, now would be a good time to get that job done.

Annual Webcaster Wake-Up Call! Some Things DO Change on New Year's Day

Webcasters have until JANUARY 31 to file Statement of Account forms, pay annual fees to SoundExchange

According to famed lyrical poet Paul Hewson (“Bono” to his millions of friends), “nothing changes on New Year’s Day”. He reportedly started writing the song as a love paean to his wife, although it eventually morphed into a political statement inspired by the Polish Solidarity Movement. Regardless of the song’s broader political statement (or anybody’s personal notions about the significance of New Year’s Day), the plain statement isn’t true: things do change on New Year’s Day. 

Compliance with the statutory license applicable to webcasting is one of those things. 

When the ball drops in Times Square, webcasters are faced with updated forms to fill in and submit, a new cycle for reporting, and a clock ticking down the 31 days until the annual minimum fees of $500 per channel must be sent to SoundExchange. 

Thankfully, much like last year, the changes from 2012-2013 are pretty minor. The rates have increased slightly. The forms have changed a little (with a new look and feel), although that shouldn’t be anything to worry about if you’ve done this before. And, in perhaps the most noteworthy change, there are actually fewer forms for some webcasters to file. Here’s an overview of what will be expected of webcasters in 2013.

Continue Reading...

Online TV Public Inspection Files: Tick, Tick, Tick . . .

The deadline for completion of the upload process is nearly here – are you ready?

TV licensees (that is, full-power and Class A licensees) – this is your final warning from us here at CommLawBlog. You’ve got until February 4 to get your public inspection file uploaded to the FCC’s online system. That’s only two weeks from now, so if you haven’t gotten started on this yet, now would be a good time.

We have previously provided a number of tips on this topic: how to access the system; once you’re in, how to upload the required materials; what documents have to be uploaded. If you missed those posts, click here and here to get started.

We’re not going to re-visit the myriad details of the new rules, their genesis, their implementation, etc., etc. Been there, done that.

We do, though, want to offer a cautionary reminder.

We haven’t canvassed the status of everybody’s public files. It’s possible – maybe not likely, but possible – that everyone has already done everything that they need to do, and our warning here is a churlish and unnecessary bit of hectoring. If you, dear reader, have uploaded your public file already, congratulations, and please accept our apologies for suggesting otherwise. But for everybody else, we do want to underscore one consideration that should motivate any folks who have been dragging their feet. 

The FCC’s online public file system is, ahem, an ONLINE public file system. Because of that, anybody anywhere anytime is in a position, unbeknownst to you, to check the status of your file. Once the deadline for completing the upload process arrives – that would be on February 4 – any shortcomings will be rule violations for which the Commission could issue fines. And anybody, anywhere, anytime will be in a position to identify such violations and bring them to the FCC’s attention.  Even if the Commission opts not to start handing out fines immediately (and while the Commission may indeed restrain itself, particularly in the initial phase, such self-restraint is not mandatory), it’s hard to imagine a greater incentive to get your file in order by February 4.

Telecom Tickler 2013 - CPNI Certifications Due By March 1

If you’re a telecommunications carrier or interconnected VoIP provider, now’s the time to get out your calendar, turn it to early February or so, and mark in big red letters: “CPNI CERTIFICATIONS DUE MARCH 1, 2013”. And don’t forget to follow up by that important deadline.

CPNI here refers, of course, to Customer Proprietary Network Information (but you probably already knew that), and the certifications that are due at the Commission by March 1, 2013 are required by the FCC’s rules (as you hopefully already knew as well.) The FCC has issued a convenient “Enforcement Advisory” to remind one and all of the deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like. Heads up, though – this year’s advisory specifies that CPNI includes the numbers of calls made and received; advisories in past years referred only to “phone numbers called”. Additionally, in this year’s advisory voicemail is specifically included among the services covered by CPNI.

As we have explained annually for the past several years, the CPNI rules are designed to safeguard customers’ CPNI against unauthorized access and disclosure.  The rules themselves are set out in Subpart U of Part 64 of the Commission’s rules, if you want to check them out yourself. Here’s a link that will take you there, but you might want to stock up on No-Doz® before heading there.

Continue Reading...

Form 323 - Kissing the SUFRN Good-bye?

FCC proposal would abandon “special use FRNs” in Ownership Reports, require social security number-based FRNs instead . . . for noncommercial licensees, too!

If you’ve got an “attributable interest” in a broadcast licensee, you might want to make sure that you’ve got your social security number (SSN) handy. The FCC is trying – again – to insist that all attributable interest holders provide SSN-based FCC registration numbers (FRNs) when the time comes to file biennial Ownership Reports on FCC Forms 323 (for commercial licensees) and 323-E (for noncommercial licensees). 

In a Sixth Further Notice of Proposed Rulemaking (6th FNPRM) the Commission has proposed deep-sixing the “special use FRN” (SUFRN, as in “SUFRN succotash”) alternative that has been available since the July, 2010 filing of the biennial Form 323. The Commission has also proposed expanding the SSN-based FRN requirement to Form 323-E for noncoms, which would meant that folks on the controlling boards of NCE stations would have to get SSN-based FRNs. And the Commission has also renewed a proposal first bandied about in the Fifth Further Notice of Proposed Rulemaking (5th FNPRM) back in 2009. (In the nearly four years since the 5th FNPRM, that proposal – which would expand the FRN reporting requirement even more – apparently never made it to the Federal Register . . . until now!)

Continue Reading...

Coming Soon: New Kids on the (H) Block?

Advanced Wireless Services proposed for H Block spectrum – as long as the NKOTHB are in sync with PCS

Nearly a year ago Congress passed, and President Obama signed into law, the Middle Class Tax Relief and Job Creation Act of 2012. The 47% famously referred to by former Candidate Romney may be surprised to learn that more than 53% of the text of the law dealt with matters largely unrelated to tax relief or job creation. By contrast, Title VI of the law – what we in the biz refer to as the “Spectrum Act” – comprises a whopping 55 out of the law’s 102 pages. That amounts to nearly 54% by our math (don’t worry, we used a calculator). Not surprisingly, we have reported on numerous aspects of the Spectrum Act here over the last year. 

Don’t fret if you’ve missed out – there’s plenty more Spectrum Act fun still to come.

For example, we have the FCC’s Notice of Proposed Rulemaking (NPRM), released last month and recently published in the Federal Register, seeking comment on proposed service rules for the Advanced Wireless Services (AWS) H Block spectrum. Licenses in the block are anticipated to be offered for competitive bidding in 2013.

Continue Reading...

The Bigger They Come . . .: Size Still Matters to M&A Regulators

Feds revise triggers for automatic merger and acquisition review.

With the 2012 book now closed on several acquisitions and mergers in the communications field, the federal government has performed its annual ritual of announcing the thresholds it will use for automatic federal review of mergers and acquisitions.  The FCC worked on several 2012 “Big Ticket” transactions including the Verizon spectrum shuffle with assets from Verizon Wireless, T-Mobile, Leap, several cable companies and others.  Still under review by the FCC is the Liberty Media acquisition of Sirius/XM. 

The FCC can review any transaction in detail before issuing an approval.  On the other hand, Congress long ago deemed that the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds.  The dollar amounts of those thresholds were announced in today’s Federal Register.  They are set to take effect as of February 11, 2013.  Readers considering a merger or acquisition should bear in mind that the administration automatically will be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $283,600,000; or
  • the total value of the transaction exceeds $70.9 million and one party to the deal has total assets of at least $14.2 million (or, if a manufacturer, has $14.2 million in annual net sales) and the other party has net sales or total assets of at least $141.8 million

The new thresholds also affect the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process. (Fees are split between the FTC and the Department of Justice.) For most of 2013, any deal subject to review and valued at less than $141.8 million will pay a $45,000 fee. (Used to be that deals coming in at a mere $100 million got to pay that.) For deals valued at more than $141.8 million but less than $709.1 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $709.1 million, get set to fork over a tidy $280,000.

When negotiating deals, all parties would be well-advised to bear these thresholds in mind. Once those lines are crossed, the prospect of additional (and considerable) time, expense and hassle to navigate the federal review process is a virtual certainty.

Update: Effective Date Set for New LPFM/FM Translator Rules

As we reported last month, in December the Commission released its “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O has now been published in the Federal Register, which means that most (but not all) of the new rules are set to become effective on February 8, 2013.

The changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 will not take effect on that date, though. All those sections involve what we call “information collections”. As a result, they are subject our old friend, the Paperwork Reduction Act, which means that they will have to run past the Office of Management and Budget first before they can be implemented.

Note that the establishment of effective dates for the new rules should not affect the fast-approaching deadline by which FM translator applicants must file their “Selection Lists” and “Caps Showings”. As we have previously reported, the window for filing those lists and showings opens on January 10 and closes on January 25.

FM Translator Application "Selection Lists"/"Caps Showings" Requirements Clarified

With January 25 deadline fast approaching, the Media Bureau has provided some (non-binding) guidance to FM translator applicants.

If you’re one of the folks with a bunch of FM translator applications still pending from the 2003 filing window, you’re probably hard at work trying to figure out what, if anything, you should be filing in response to the Commission’s public notice announcing the deadline for “Selection Lists” and related “Caps Showings”.  (You might have missed that notice, since it was released the afternoon of December 21 – that is, the Friday of the long Christmas weekend.)

As we pointed out, in the wake of that notice a considerable amount of work must be done, and there’s not a lot of time to do it in. The window for filing Selection Lists and Caps Showings opens in two days (on January 10), and closes on January 25

But the Media Bureau feels your pain, and in an effort to assist translator applicants, the Bureau has released a set of 12 clarifying examples (actually, it’s 17, if you count the five sub-examples tacked onto Example 12). They provide reasonably specific directions for what is and is not expected of applicants in a variety of possible scenarios. (They’re especially helpful if you happen to have five applications pending in the Atlanta area, three of which are Inside the Atlanta Market.) So translator applicants currently struggling with making selections and assembling showings would be well-advised to take a few minutes (and a couple of deep breaths) and check out the Bureau’s examples. That may save some time and aggravation.

But heads up. While the examples are “intended to provide general guidance reflecting the staff’s initial interpretation of the application selections and cap showings procedures”, they may not be the last word.   The Bureau’s notice specifically disclaims that the examples “are not intended to establish binding precedent”. Further, “[t]he staff will make specific rulings in response to actual selections and submissions on a case-by-case basis.” In other words, applicants should feel free to rely on the examples, but such reliance will not necessarily safeguard an applicant’s selections or showings from adverse determinations by the staff down the line.

Good luck.

FM Translator Application Dismissal Lists - A Clarification

“Selection Lists” may be filed by email.

Last month we reported on the Media Bureau’s announcement of the deadline and procedures for filing lists of FM translator applications to be dismissed pursuant to the provisions of the “Fifth Order on Reconsideration and Sixth Report and Order” (which we’ve previously referred to as the 6th R&O). In our post, we said that “[a]ll showings will be submitted on paper – there will be no electronic filing.”

Oops. As a helpful member of the Audio Division has pointed out to us, the Bureau’s public notice DOES provide for submission of the Selection Lists (and related “Caps Showings”) by email, which is technically “electronic filing” (even if it doesn’t involve CDBS). 

The address to use: FXshowings@fcc.gov. While that address may or may not be operational as of today (January 3, 2013), we have been advised that it’ll for sure be up and running by January 10, the day the window for filing Selection Lists and Cap Showings opens.

But heads up. The FCC’s email system will not accept attachments larger than 10 MB. The Bureau’s notice instructs that “files beyond that size [i.e., 10 MB] should [be] divided into multiple sub-10 MB documents and sent via separate e-mails.”

Our apologies for any confusion that we may have caused.  And many thanks to our sharp-eyed reader who brought this to our attention.

Online TV Public Inspection File Deadline Looms

With February 4 deadline fast approaching, some more helpful tips for the upload process

As we roll into the New Year, it’s important that full-power TV and Class A TV licensees (we’ll refer to them collectively as “TV licensees” here) keep their eye on February 4. That’s the date by which all TV licensees must have uploaded their public inspection files to the FCC-maintained online site. If you haven’t already done so, now’s the time to inventory your public file, determine what documents have to be uploaded, and start the upload process inmediatamente

As we have been explaining in a series of posts that started last spring (or even earlier) when the new online public inspection file requirements were first adopted, TV licensees must move most (but not all) of the materials in their existing public files to the online system. Earlier this month the Commission officially announced that the deadline for completing that project is February 4, 2013.

What has to be uploaded?

Continue Reading...

Update: Deadline for FM Translator Dismissal Lists Announced

Public notice spells out showings that must accompany applicants’ choices of which 2003-era FM translator applications will stay and which will go

If you’re one of the lucky folks who happens to have translator applications still pending at the Commission from the famous 2003 filing window, heads up – depending on how many applications you have and what markets they propose to serve, you could have a lot of homework to do between now and January 25. That’s because the Media Bureau has announced that the window period for submitting “translator application selection” lists (“Selection Lists”) and related “Caps Showings” will run from January 10-25, 2013

So much for taking any time off during the Christmas/New Year’s/MLK extended holiday season.

The Bureau’s public notice is not unanticipated. As we noted just ten days ago, the Commission is highly motivated to wrap up the long-running face-off between FM translator applicants and would-be LPFM applicants. The culling of the herd of translator applications that have been sitting around for nearly ten years is an essential step in achieving that goal.

As those of you who have been following the LPFM/FM translator imbroglio through our blog already know, the Commission has devised a highly complex set of technical guidelines to govern which translator applications will be processed and which will be dismissed. The applicants themselves will have the first say, but their ability to pick and choose among their pending applications is subject to the Commission’s complex guidelines.

Continue Reading...

Incognito Incentive Auction Input Encouraged

Media Bureau offers tips on keeping commenters’ ID’s on the QT.

In an effort to coax otherwise reticent TV broadcasters to join in the public discussion about the Commission’s plans for incentive auctions, the Media Bureau has issued an unusual public notice providing “additional guidance” relative to the fine art of filing comments anonymously. (Exactly when the Bureau had previously provided any such guidance isn’t clear – we certainly don’t remember any – but they’re claiming that this new guidance is “additional” to something, and who are we to say them nay?)

The notice reflects the Bureau’s recognition that some, perhaps many, broadcasters might be reluctant to chime in on the auction proposals because public disclosure of auction-related sensitivities now might be disadvantageous come auction time. It’s always wise to keep your cards close to your vest, so individual TV folks might logically prefer not to reveal questions or concerns that might signal their ultimate auction strategy if and when the auction actually happens. (Even Congress, in mandating the incentive auction process in the first place, provided for confidentiality relative to some information submitted by reverse auction participants.)

Logical though that close-to-the-vest approach may be, it’s contrary to the Commission’s effort to assemble the most comprehensive record possible. As the Commission sees it, the more information it can gather relative to the interests of broadcasters now, the more likely the Commission will eventually be able to design incentive auctions that will attract maximum broadcaster participation. And the more broadcasters that participate in the auction, the greater the likelihood that the auction process will free up maximum spectrum for the Great God Mobile Broadband.

So the Bureau is making clear not only that you can file anonymously, but also how to file anonymously.

Continue Reading...

Brave New Spectrum World: Proposal Would Accommodate Many More Users in a Sensitive Band

The FCC has proposed an innovation that might vastly increase the ability of multiple users to share the same band.

The FCC has proposed a set of rules that look innocuous enough, and would apply only to a single, underused band. But they may herald a new way of managing spectrum – a suite of techniques having the potential to vastly increase the number of users that can share a given range of frequencies.

All of the radio spectrum is occupied – at least, all of the most useful parts, below about 60 gigahertz. But the demand for spectrum continues to increase. What the FCC needs most is a way to squeeze new users into spectrum that is already in use, without causing interference to either the incumbents or the newcomers.

Current spectrum management relies on “allocating” each band of frequencies to (usually) several categories of users. Those categories, in turn, come in three different priorities. Those designated as “secondary” may not cause harmful interference to, and must accept all interference from, those called “primary.” Unlicensed users, permitted in most bands, must protect all other users (except each other) from interference, and must accept all interference that comes their way. A few bands, like that used for GPS reception, have only one active user category; a few have as many as seven or eight. Three to five is about typical.

Yet even supposedly occupied spectrum is quiet in most places, for much of the time. Some services, like those using two-way radios, occupy their frequencies only sporadically; others, like some types of satellite earth stations, operate only at wide separated locations. All such users, however, vigorously resist letting others into their bands. A police officer at the scene of an accident, picking up his microphone to request an ambulance, hopes to find an empty channel to make the call. The satellite operator may want the option of installing earth stations at new locations, without interference from other kinds of transmitters nearby.

As we explain below, the FCC thinks it can fully protect all such users while still letting new entrants share the same frequencies.

Continue Reading...

CALM Act Waiver Door Re-Opened, But Just A Bit

"Small" TV stations and MVPD operators now have until December 13, 2012 to file streamlined financial hardship waiver requests.

If you’re a “small” TV station or MVPD operator who missed the October deadline for filing for waiver of your obligations under the CALM Act, but you’re still not going to be in compliance with the Act when it takes effect on December 13, 2012  (that's right, the day after tomorrow), DON'T PANIC. Christmas/Hanukkah/Kwanzaa has come early this year.

The Commission has announced that it will accept “streamlined financial hardship waiver requests” through December 13, 2012, even though the original deadline was back in October. So if you qualify, you've got two more days to get your request in to the Commission.

Not clear on whether you’re eligible to file such a request, or what you might need to file if you are eligible, or how to file it? You could check out our post from last October, or we can save you the trouble by shamelessly repurposing the relevant portions of that post here, as follows:

Continue Reading...

Effective Date of New LPFM Rules Set

Updated “water files” also released as FCC works to advance LPFM/FM translator plan

Having settled on a framework for clearing the FM translator logjam and getting the LPFM application process up and running (at least in theory), the Commission is losing no time in its efforts to implement that framework. The “Fifth Order on Reconsideration and Sixth Report and Order” in the ongoing LPFM/FM translator saga has now been published in the Federal Register. (We wrote about that order last week.) Barring a stay of the effectiveness of the order – and such a stay is unlikely in the extreme – the new rules will become effective on January 10, 2013. (That will also be the deadline for petitions for reconsideration, should anybody be inclined to seek reconsideration.  Parties interested in seeking judicial review will have until February 9 to get their petitions for review filed with an appropriate court.)

The Federal Register publication (and consequent effective date) probably won’t have any immediate impact on things, though. What will have an immediate impact will be the FCC’s public notice concerning the deadline by which applicants with more than the permitted number of translator applications must elect which of their applications they plan to dismiss. That public notice could show up any time now. Since (1) the Commission appears keen on getting the LPFM show on the road, and (2) the LPFM window process won’t be able to proceed until the translator backlog is cleared, and (3) the translator backlog won’t be cleared until dismissal elections have been made, and (4) dismissal elections won’t be made until the FCC sets a deadline for them, our guess is that that deadline is likely to be announced sooner rather than later. Check back here for updates.

And also on the LPFM front, the Commission has released some updated “water files” for certain markets. These files clarify or correct certain “minor discrepancies” with respect to the possible exclusion of grid points at locations over water or not within the United States. (For more on the significance of “grid points” and related matters, see our post from last April.) The communities affected by the updated water files: Chicago; Detroit; Los Angeles; and Jacksonville (the one in Florida). The code, updated water files and other relevant materials may be accessed in a zip file at http://www.fcc.gov/Bureaus/MB/Databases/source_code/lpfm/lpfm6.20121206.zip.

Update: Reply Comment Deadline Extended in Latest CVAA Rulemaking

The Commission has extended the deadline for reply comments in its rulemaking proceeding concerning possible expansion of the obligations of video providers with respect to emergency information. (The proposal arises from the Twenty-First Century Communications and Video Accessibility Act of 2010, or CVAA.)  We wrote about the NPRM in that proceeding here, noting that the original comment deadlines were pretty darned abbreviated, particularly in view of the complex proposals under consideration. While the comment deadline remains December 18, the reply comment deadline has now been extended to January 7, 2013.

FCC Looks to Bring More Emergency Information to the Visually Impaired

NPRM to implement additional mandates of the Twenty-First Century Communications and Video Accessibility Act is on the fast track

As our readers know, in the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress aimed to ensure that folks with disabilities have “better access to video programming”.  In the two years since the CVAA was enacted, the Commission has taken multiple steps to comply with that statutory direction.

But one important component of “video programming” remains to be addressed: emergency information during non-news programs.  Existing rules already provide that all pertinent emergency information broadcast during regular or special newscasts must include an aural component for visually impaired persons.  But what about announcements broadcast outside of newscasts? 

We all know that emergencies don’t occur strictly at 6:00 p.m. or 11:00 p.m. (or even at the new trendy 4:00 or 5:00 a.m. hour), conveniently timed for scheduled newscasts.  It’s not unusual for broadcasters to interrupt non-news programming to air emergency information short of devastating disaster coverage – such as weather warnings or alerts about dangerous circumstances (flooding, chemical spills, wildfires, etc.).  Such information is often displayed on a visual crawl or some similar visual method, without accompanying audio.  In such situations, the FCC requires only that the broadcaster include an aural tone that alerts visually impaired viewers so that they can turn on a radio or ask someone else to read the screen for them. 

But that might place the visually impaired at a disadvantage by making the emergency information available too late for proper responsive action.  In keeping with its CVAA mandate, the FCC has issued a Notice of Proposed Rulemaking (NPRM) looking to expand the existing rules to require that emergency information be provided aurally using the same secondary audio stream that is now used for various purposes.  (Those purposes include video description and, sometimes, Spanish or other foreign language soundtracks.)  And in a related proposal, the Commission is also inviting comments on how it should implement the statutory requirement to prescribe regulations requiring receiving apparatus to have the capability to decode and make emergency information available.

Continue Reading...

Translate This (Again)! Final Framework for LPFM/FM Translator Resolution Adopted

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

Continue Reading...

Update: Wireless Mic Comment Deadlines Extended Again

Not surprisingly, the FCC has extended the comment deadlines in the wireless microphone proceeding again. In that proceeding, of course, the Commission is looking into how best to accommodate wireless mics in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. We reported on the last extension just a couple of weeks ago. The goal of that first extension was to sync up the comment deadlines in the wireless mic proceeding with those in the Incentive Auction proceeding, since the latter is likely to have a significant impact on the former. 

But since then the Commission extended the comment periods in the Incentive Auction docket. To maintain the synchronicity between those deadlines and the wireless mic deadlines, the Commission has, on its own motion, moved the wireless mic deadlines as well. Comments are now due by January 25, 2013, and replies by March 12, 2013.

Update: Progeny vs. Unlicensed Users - Comment Periods Extended

We recently reported that the FCC had invited comments (and reply comments) with respect to test results that may show interference from Progeny LMS, LLC, a licensed provider in the 902-928 MHz band, into some of the myriad unlicensed devices in that same band. The invitation was issued on November 20, and provided that initial comments were to be filed by December 11, a scant three weeks later (with the long Thanksgiving weekend taking up a significant chunk of those three weeks).

The FCC has now extended the comment periods, but not by much. Progeny opposed any extension, but the Commission was persuaded that at least some additional time was warranted. As a result, comments are now due on December 21, 2012 (a whopping ten extra days) and reply comments on January 11, 2013. That latter date is curious because, in the text of the order, the Commission says that it’s “provid[ing] ten additional days for filing reply comments”. But since the original reply deadline was December 21, an extra ten days should have landed the deadline – if our math is correct – on December 31. Despite that, the order clearly specifies January 11 as the new reply deadline, which seems to constitute (again, if our math is correct) a 21-day extension. Let’s just assume that the Commission threw in the extra time in view of the intervening year-end holidays and leave it at that..

Update: Incentive Auction Comment Deadlines Extended

Overwhelmed by the enormity and complexity of the Incentive Auction NPRM (which it took us six – count ‘em, six) separate posts to summarize)? No problem. Thanks to the NAB and CTIA-The Wireless Association®, who jointly requested more time, the FCC has extended the deadlines for comments on the NPRM. Mark your calendars: comments are now due by January 25, 2013, and reply comments are due by March 12.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 3

If you’re broadcasting video in digital, we’re talking to you.

Attention, all DTV broadcasters! Your Form 317 is due at the FCC by
December 3
. You get an extra couple of days this year (since the normal December 1 due date falls on a Saturday), but those two days should give you plenty of time to complete and file the form. 

Having trouble recalling just what Form 317 is all about?  No problem.  Form 317 is the “Digital Ancillary/Supplementary Services” Report on which you have to report whether, between October 1, 2011 – September 30, 2012, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

“Ancillary or supplementary services” include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal.  Multiple video streams that are received free by the public are not considered to be ancillary or supplementary services.

The filing requirement applies to all digital broadcasters of television programming, including TV translators, LPTV and Class A television stations, whether operating pursuant to a license, program test authority, or Special Temporary Authority. And it applies whether or not the broadcaster in fact offered any ancillary/supplementary services for a fee. Obviously, if you offered no such services, the report will be short and you won’t have to do any calculations or pay any money to the Commission – but, if you have a facility that is operating digitally to broadcast television programming, the FCC wants a Form 317 report from you, and it wants that report by December 3.

In a public notice reminding one and all of the requirement, the Commission darkly observes that failure to file “may result in appropriate sanctions”. Consider yourself warned.

As with most forms these days, the Form 317 must be filed electronically through CDBS. Also, keep in mind for planning purposes that only one station goes on each report. Thus, if you are a licensee with a number of digital translators, you’ll probably need to allow more time for filing.

If you would like any help in navigating the electronic filing or have any questions about the form and what needs to be included, please let us know. While we won’t help with any payments that may be due, we can assist you in the filing process.

Inside the Incentive Auction NPRM (Part 6): Reconfiguration for Wireless - The Final Step

[Blogmeister’s Note: This is the last in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the “reverse” and “forward” auctions have both been completed and TV licenses have all been tucked away in their newly-compacted space, the fun will really begin for the Commission.

Once the “reverse” and “forward” auctions have been completed and the broadcast TV industry has been repacked, the FCC will finally be able to reconfigure the vacated UHF spectrum for mobile. But determining, now, precisely how that reconfiguration will ultimately look, then, poses a unique challenge in view of the number of unknowns currently in play.

Until the “reverse” auction is completed, questions will remain regarding the amount of spectrum that will be available for reconfiguration, the particular frequencies comprising that available spectrum, and the geographic locations covered by that spectrum. Therefore, the band plan described in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is more of a “framework” based on the expectation of cleared frequencies. In admirable bureaucratese, the NPRM describes its goal as “a band plan that balances flexibility with certainty.” 

The certainty includes proposing a fixed amount of downlink spectrum nationwide with uplink spectrum possibly varying in different geographic areas. The idea is to best utilize what are expected to be varying amounts of cleared spectrum in different geographic areas. By providing uniform downlink spectrum throughout all geographical areas, the Commission hopes to assure a more interoperable universe at the device level, where each mobile device can use the same receive filters while the carriers’ base stations can be modified to allow for multiple uplink spectrum signals. A level of interoperability at the device level is expected to lead to lower device costs while allowing for greater economies of scale. 

Consistent with the uncertainties surrounding the final reconfiguration process, the Commission advises that its general “focus” is on five “key policy goals”, to wit: utility, certainty, interchangeability, quantity, and interoperability.

Continue Reading...

Inside the Incentive Auction NPRM (Part 5): The "Forward" Auction

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here.Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

The “forward” auction to be used to dole out reconfigured spectrum to wireless operators may seem traditional, but watch out. 

If the “reverse” auction designed to clear TV broadcasters out of large chunks of their current spectrum isn’t complicated enough, consider the “forward” auction. That’s the component of the Incentive Auctions in which hopeful wireless licensees will bid on the to-be-vacated spectrum sight unseen at the same time that the spectrum is being cleared. Because the availability of wireless licenses is dependent upon the results of the reverse auction in different geographic areas, wireless bidders won’t know exactly which spectrum band they’re bidding on or even whether any band will actually be available when the reverse auction is over. 

This double helix of descending bids on spectrum simultaneously coupled in sequential stages with parallel ascending bids on that same spectrum is audacious. But it is theoretically an efficient and quick way of re-assigning a precious resource.

Complexity in the computer age is not necessarily a deal breaker, but human (and computer) fallibility gives us some pause about this plan. Through the Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission is still looking for input on its plan, so we can expect experts from the world of Academia to chime in knowledgeably on the concept. 

In the meantime, we lay out here the Commission’s preliminary thoughts. The three basic auction design elements are: bid collection procedures, assignment procedures, and pricing.

Continue Reading...

Inside the Incentive Auction NPRM (Part 4): TV Repacking - The Practical Side

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the final participants in the repacking of the TV band have been identified through the "reverse" auction process, the shuffling of stations necessary to accomplish the repacking will raise a number of practical considerations and conundrums. 

Once the auctions have been completed, the Commission and the TV industry will have to grapple with the practical implementation of repacking: who gets what channels, how will stations moving from one channel to another effectuate that transition, what (if any) reimbursement of transition costs will be available, and to whom. This phase of the process will affect all TV broadcasters, whether or not they opted to participate in the “reverse” auction.

 Initially, the post-transition channels to which full power and Class A station will be assigned will be determined by the FCC, without input from licensees. The Commission will use a software program to figure out the optimal way to squeeze the TV industry into the portion of the current TV band that will remain, post-auction, available for TV operations.   Although stations are not to be involuntarily moved from UHF to VHF, almost any other move will be fair game as long as it’s consistent with the auction results.  Licensees unhappy with whatever “new” channel they are assigned to will have very limited recourse: the Spectrum Act denies stations the right to protest modifications of their licenses (i.e, channel changes)imposed by the Commission to accomplish the repacking.

Re-licensing ProceduresOnce the Commission announces its repacked TV band, a number of procedural steps will have to be taken: as we all learned from the transition to DTV several years ago, it’s one thing for the FCC to specify where stations are supposed to operate on the spectrum; it’s an entirely different thing to get those stations up and running on the appointed channels.

Continue Reading...

Inside the Incentive Auction NPRM (Part 3): Doing More with Less - Repacking the TV Band

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Whether or not you plan to participate in the “reverse” auction, if you’re a TV licensee, you should be aware of what the FCC has in mind for the spectrum around you.

It’s important to understand that the Incentive Auction program is merely a device designed to facilitate the “repacking” of the spectrum. That is, the FCC is dead-set on freeing up space for mobile broadband use in spectrum currently occupied by TV broadcast stations. In other words, many TV licensees can be expected to be moved off their current channels, whether voluntarily (through the “reverse” auction process) or by forced relocation. So while TV licensees not planning on participating in the “reverse” auction” may not be terribly concerned with the mechanics of submitting bids, all TV broadcasters need to pay attention to the FCC’s proposed approach to repacking the spectrum. 

Under the Spectrum Act, when the Commission relocates TV stations in its repacking efforts, it must take “all reasonable efforts” to preserve the “coverage area” and “population served” of every surviving full power or Class A station. For these purposes, “coverage area” and “population served” are to be determined using the methods set out by the Office of Engineering and Technology’s Bulletin No. 69 (OET-69). LPTV and translators station will receive no protection during the repacking process and will be subject to displacement by any relocated full power or Class A station, although the NPRM does request comment on some measures designed to help LPTV and translator stations survive in a post-auction world. 

As for full power and Class A stations, the Commission in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is looking to determine just what “coverage area” and “population” must be protected. Under OET-69, the term “coverage area” is not defined, but it is used synonymously with “service area” as that latter term is defined in Section 73.622(e) of the rules. While “coverage area” (or “service area”) does not account for interference from other stations, OET-69’s measurement of “population served” does, counting only population that is both within the “coverage area” and where the signal is not masked by interference.

Continue Reading...

Inside the Incentive Auction NPRM (Part 2): Who's Eligible for the "Reverse" Broadcast Auction?

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Hint: Maybe fewer folks than you might have thought.

Who will be eligible to participate in the “reverse” spectrum auction? Not, it would appear, everybody who might want to.

As required by Congress in the Middle Class Tax Relief and Job Creation Act of 2012 (which the FCC prefers to refer to as the “Spectrum Act”), in its Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission proposes significant eligibility limitations as far as the “reverse” auction goes.

First and probably most important, the only folks who could participate in the “reverse” auction would be licensees of full power and Class A television stations, both commercial and noncommercial. That automatically eliminates LPTV licensees and TV translator licensees.

But Class A licensees should not necessarily be breathing easily, particularly in light of the Commission’s recent attempts to downgrade a number of Class A stations to LPTV status.   The NPRM proposes that any station whose Class A status has been revoked by the Commission would not be eligible to participate in the auction, even if the order downgrading the station has not become final by the time of the auction. (Licensees who get downgraded can seek reconsideration or review of the decision to downgrade, thus avoiding finality and keeping alive – or so they hope – the possibility that the decision might be reversed during the appeals process. Under the FCC’s proposed eligibility criteria for the reverse auction, however, any effort to reverse a downgrade might be pointless if the auction, and consequent repacking, occurs before the downgraded station could be restored to Class A status.) 

There are some potential limiting considerations for full power licensees, too.

Continue Reading...

Brrrrr - FM Minor Mod Freeze Announced

 With the deadlines for FM Auction 94 now on the books, the Commission has also announced that it will not accept ANY commercial or noncommercial minor mod applications between January 28 and February 6, 2013. That’s the filing window for short form (Form 175) applications for Auction 94.

These freezes are standard operating procedure when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process. So if you have any intention of filing for a minor mod in the near term, you’d best be sure to get it filed before January 28 or be prepared to cool your heels for ten days until the freeze thaws on February 7.

For more information on the auction itself, see our related posts here.

Auction 94 - The Dates Are Set

 The FCC has released a notice setting the procedures for Auction 94, the FM bid-fest set for next Spring.  Get out your checkbooks . . . and your calendars – since, as we predicted a couple of months ago, the schedule of events initially announced back then has been changed.

The auction will look much the same as previous sales conducted by the FCC, at least in terms of the procedures. But be prepared for disappointment if, based on the Commission’s initial listing of channels up for bids, you had your heart set on getting a station in: Newark, Maryland (not New Jersey, or even Delaware); or Arlington, Oregon (not Texas or even Virginia); or Rocksprings, Texas, Chincoteague, Virginia, or Baggs, Wyoming. All five of those channels have been pulled from this year’s auction because they had been inadvertently omitted from a 2006 version of the Table of FM Allotments. Oops. No problem, though – they’ll all presumably be available in a future auction. And anyway, you’ve still got 112 channels to bid on this time around.

Anybody looking to set up shop in the Great Northwest should be pleased, because the minimum opening bids on three Washington State channels have been slashed dramatically. Class A channels at Oak Harbor, Sequim and Sedro-Wooley (presumably not to be confused with Sheb Wooley of “Purple People Eater” fame) initially commanded minimum bids of $25,000, $20,000 and $45,000, respectively. Forget all that. Bidding for Oak Harbor will now be starting at a paltry $15,000 – that’s a 40% reduction! But wait, there’s more. Sequim and Sedro-Wooley have both been slashed by nearly 90%. The opening -- and potentially only -- bid for Sequim is a mere $1,500, and Sedro-Wooley, originally listed at $45,000, is now down to $5,000.  

All of the remaining 109 permits will start with the same prices proposed by the FCC back in September

Potential bidders should mark their calendars with the following important dates – and note that there has been a change in one of those important dates since our last report:

Continue Reading...

Inside the Incentive Auction NPRM (Part 1): The Overall Auction Design

[Blogmeister’s Note: This is the first in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series as they are posted by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

An overview of the FCC’s proposed approach to spectrum-clearing/spectrum-repopulating incentive auctions and some of the myriad factors at play in that process.

The Incentive Auctions are coming. No doubt about it. TV and Class A licensees will be given the opportunity to cash in in return for making some or all of their spectrum available for repurposing (the beneficiaries of the repurposing being wireless broadband operators). The innovative concept floated out two years ago in the National Broadband Plan is now targeted for implementation in 2014 . . . if about a million different moving parts all happen to align just right. 

Recently, Commission officials (including Commissioner Rosenworcel and Incentive Auction Task Force co-leader Gary Epstein) have emphasized the importance of making the auction process understandable and easy to participate in. As Rosenworcel put it, “[s]implicity is key . . . [A]t every structural juncture [of the auction design], a bias toward simplicity is crucial”. 

Perhaps. But that brings us to the Commission’s Notice of Proposed Rulemaking (NPRM) in which it lays out – over 140 pages of single-spaced text plus 26 pages of proposed rules plus 22 pages of additional appendices plus 15 pages of separate statements by the Commissioners plus a 20-page “Incentive Auction Rules Option and Discussion” – the agency’s thoughts on the Incentive Auctions’ design.

“Ease” and “simplicity” do not spring to mind as the reader slogs through the dense, highly technical NPRM.

Continue Reading...

Update: Progeny vs. Unlicensed Users - FCC Invites Public Comment

Potentially at stake: the utility of the 902-928 MHz band for unlicensed operations

We recently reported on test results that may show interference from Progeny LMS, LLC, a licensed provider in the 902-928 MHz band, into some of the myriad unlicensed devices in that same band.

The FCC has now asked for public comment on those test results.

Comments are due on December 11, 2012 and reply comments on December 21.

Update: FCC Seeks Input on Proposed Change in Contest Rule

 Ten-month-old proposal takes first step toward possible rulemaking.

Last January, we wrote about a proposal by Entercom Communications Corp. to change the FCC’s on-air contest rule. As we all know, that rule requires that, when a station promotes a station-conducted contest on the air, the station must disclose – on the airall the material terms of the contest.  Such disclosures can be a real drag programming-wise, even when they’re jammed into the kind of compressed super-fast babble normally reserved for extended disclaimers about sketchy products. 

Entercom has sensibly suggested that broadcasters be permitted to post contest rules on their stations’ websites, rather than subject listeners to the fine-print recitations the Commission currently requires.  (Note that the Enforcement Bureau has expressly held that, under the current on-air contest regulation, licensees may not rely exclusively on website posting of contest rules to satisfy Section 73.1216.)

Ten months after Entercom’s petition rolled in the FCC’s door, the FCC has finally gotten around to asking how anybody else feels about the proposal. If you would like to chip in your two cents’ worth, you’ve got until December 20, 2012 to let the Commission know. This invitation for comments does not mean that the Commission will for sure change the rule, or even issue a notice of proposed rulemaking (which would be a necessary step before the rule could in fact be changed). But the invitation does give interested parties the opportunity to let the Commission how they really feel about this issue. A solid show of support at this stage could improve the prospects for the eventual adoption of Entercom’s proposal.

Update: Wireless Mic Comment Deadlines Extended

The comment deadlines have been extended in the FCC’s inquiry about how best to accommodate wireless microphones in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. The original comment deadline was the day before Thanksgiving, but that date has now been pushed back 30 days.  The extension was granted at the request of a number of parties who want to coordinate (a) their comments in the wireless mic proceeding with (b) their comments in the separate Incentive Auctions proceeding, which will have an impact on (among other things) accommodation of wireless mics in the repacked spectrum contemplated by the Incentive Auctions proposals.  Comments are now due by December 21, 2012, and replies by February 19, 2013 (the same deadlines as in the Incentive Auction proceeding).

LightSquared's Plan B, Out for Comment

LightSquared proposes to move its cell-type service away from GPS frequencies . . . and into a Weather Satellite Band.

The FCC has requested comment on a Petition for Rulemaking filed by LightSquared Subsidiary LLC seeking a new co-primary allocation permitting non-Federal terrestrial mobile use of the 1675-1680 MHz band.

You remember LightSquared – the company that wanted to deploy a tower-based wireless broadband network in the 1545-1555 MHz satellite downlink portion of the L Band, close to GPS frequencies. GPS users objected, and the National Telecommunications and Information Administration (NTIA) which administers federal spectrum, decided GPS interference concerns could not be overcome, whereupon the FCC pulled LightSquared’s tentative authorization.

With its recent Petition for Rulemaking (and other documents filed in late September), LightSquared seeks a work-around to its GPS headache (and possibly a Hail Mary to resurrect the company, which is now in bankruptcy).

Continue Reading...

The FCC Wants to Know: How Much Spectrum Is Too Much Spectrum?

FCC opens inquiry into whether, and how, and how much, wireless spectrum holdings should be limited.

It’s undeniable that a small handful of carriers control an overwhelming amount of mobile spectrum in the U.S. Many observers of the communications landscape believe that that intense concentration has reached alarming proportions. Unfortunately, to date federal regulators have not tended to be among those hand-wringers.

As a result, Verizon and AT&T, and to a lesser extent Sprint and T-Mobile, have increasingly gobbled up huge chunks of spectrum both through auctions and in secondary market transactions, leaving only the crumbs for smaller carriers to squabble over. Often the FCC auctions the spectrum in increments covering huge territories – Regional Economic Area Groupings (REAG) or Major Economic Areas (EA) – that span as many as ten states. Such vast areas are too big for a small or medium sized carrier to handle and usually more than even the largest carriers can hope to build out in a reasonable timeframe.   So a considerable amount of spectrum lies moldering in the larders of the largest carriers for a rainy day while smaller carriers cannot fulfill their customers’ basic needs.

Now the FCC has decided to take a fresh look at its policy on mobile spectrum holdings. In a Notice of Proposed Rulemaking released in September (and published in the Federal Register in early October) , the FCC has opened a far-ranging and much needed inquiry into all aspects of the spectrum accumulation issue.

Continue Reading...

DIRS Activated as Hurricane Sandy Makes Landfall

Sweeping alert affects communications providers in 150+ counties across 10 states and DC.

As we anticipated, the FCC has activated its Disaster Information Reporting System (DIRS), to enable it to monitor damage to broadcast and telecommunications facilities during Hurricane Sandy.  (Note that the activation has occurred even though the FCC itself is shut down because of the storm -- major props to the folks in the FCC's Public Safety and Homeland Security Bureau for stepping up to shoulder this important responsibility.)

The DIRS is a voluntary, web-based system that communications providers – a universe that includes wireless, wireline, broadcast, cable and Voice over Internet Protocol providers – can use to report “communications infrastructure status and situational awareness information during times of crisis.” The FCC is asking that providers submit their reports starting 10:00 a.m. on Tuesday, October 30, 2012, and every day after that by 10:00 a.m. until DIRS is deactivated.

In particular, the Commission wants to know, among other things, the status of communications equipment, restoration efforts, power (i.e., whether providers are using commercial power, generator or battery), and access to fuel, if they provide service to certain affected areas.

What are those areas? Given the enormous size of Sandy, there are a lot of them. Take a deep breath. Here are the areas the FCC has identified:

Continue Reading...

FTC Posts Bounty on Robocallers

You can win $50,000 and a trip to Washington. And the undying, everlasting gratitude of your fellow telephone subscribers.

Sometimes technology just takes a wrong turn. Yes, it has vastly improved our lives. No one wants to go back to the days before smallpox vaccine, or power steering, or existential cat videos. But technology also provides its share of daily annoyances. High on that list is the “robocaller”: a machine that dials your phone, and when you answer, delivers a recorded message.

The economics of robocalls works much like email spam: the perpetrators can reach so many people, at such a low cost per contact, that they don’t care if 99.9% hang up without hearing the message. But robocalls are much more intrusive than spam. They prompt the victim off the couch to answer a ringing phone. And, unlike other kinds of telemarketing calls, robocalls even deny us the satisfaction of telling off the person who called.

The Federal Trade Commission has decreed most robocalls to be illegal. But the rules do allow some kinds. Political parties can robocall at will, thanks to that pesky First Amendment – and in these final days leading up to an election, they exercise that right with a vengeance. Also legal are robocalls from charities and health care providers, and “reverse 911” calls that warn people about local emergencies – for example, calls to a particular neighborhood about contamination of the water supply.

But the FTC is confident that illegal robocalls make up the vast majority (even though it does not provide any hard supporting data). And enforcement has been lax. We know that because we get so many of them. As yet there is no easy way for the recipient to block robocalls – no equivalent of the email “junk filters” that protect us from most email spam.

That is where the FTC comes in.

Continue Reading...

Update: Comment Dates Set in Wireless Mic Inquiry

 We recently reported on the FCC’s inquiry about how best to accommodate wireless microphones in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. The Commission’s request for comments has now made it into the Federal Register, which as we all know by now establishes the relevant filing deadlines. Comments in response to the FCC’s request are due by November 21, 2012, and reply comments are due by December 12, 2012.

CALM Act Jitters? Deadline for Waiver Requests Is Fast Approaching!

Unless you’re confident that you will be in compliance with the CALM Act requirements by December 13, you should NOT neglect the October 15 deadline for waiver requests.

Not quite a year ago, the CALM Act was front and center in the minds of full-power TV broadcasters and multichannel video programming distributors (MVPDs). The CALM Act, of course, is the legislation (together with the follow-up agency rules) that’s supposed to make loud commercials a thing of the past. The rules are set to take effect on December 13, 2012 – by which date all affected entities are required to be in compliance with the rules. (For readers who need to brush up on the rules, check out our post from last January.)

When it enacted the CALM Act, Congress thoughtfully authorized the Commission to waive the requirements for a year (with an additional year also possibly available) for entities who could demonstrate that obtaining the necessary equipment would “result in financial hardship”. And pursuant to that authority, the Commission announced two separate “financial hardship” waiver policies: a streamlined approach applicable to “small stations and MVPDs”, and a somewhat more cumbersome approach applicable to all others.

The deadline for filing those waiver requests (whether or not you’re “small” – and read on for more information on that score) is 60 days prior to the December 13, 2012 effective date of the rules. By our calculation, that means the waiver deadline is October 15, 2012. (Technically, the sixtieth day prior to December 13 is October 14, but that’s a Sunday and, under the Commission’s rules, deadlines that fall on a weekend or holiday automatically roll over to the next business day.)

So what’s the drill for these financial hardship waivers? Here’s the scoop on both “small” station waivers and others.

Continue Reading...

Wireless Mic Users - Listen Up!

The FCC wants help in squeezing more wireless microphones into ever-shrinking spectrum.

Traditional wireless microphones – the kind you see on TV, big stage shows, and in lecture halls and churches – operate on locally vacant TV channels. But those channels are becoming scarce. The FCC has asked for comment on how to accommodate these microphones in the future.