CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

New BIP deadline: March 29; New BTOP deadline for CCI projects: March 26

NTIA and RUS have announced extensions of the deadlines for some, but not all, submissions in response to the Second Notice of Funds Availability (NOFA) issued as part of the Big Money Hand-out made possible by the American Recovery and Reinvestment Act of 2009.  Applications for Broadband Initiatives Program (BIP) funding will now be due at RUS by 5:00 p.m. (ET) on March 29, 2010. Applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP) will now be due at NTIA by 5:00 p.m. (EDT) on March 26, 2010. 

It’s not clear why one agency opted for March 26 while the other opted for March 29, but would-be applicants should be sure to note that the deadlines for NTIA and RUS applications responsive to the Second NOFA are no longer identical.

Also, the extensions do NOT apply to requests for NTIA/BTOP funds for Public Computer Center projects or Sustainable Broadband Adoption projects. The deadline for applications for such projects remains 5:00 p.m. (EDT) on March 15.  Check out our blog post about the Second NOFA for further details about the different types of projects.

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Not as momentous as the Julian-Gregorian shift, but changes you might want to note nonetheless

Back in January we reported on a proposal to allow unlicensed operation in the 77-81 GHz band for “tank radar” use. The Commission’s Notice of Proposed Rule Making has now been published in the Federal Register, which in turn has established the deadlines for comments and reply comments. Comments are due by June 2, 2010 reply comments by July 2, 2010.

And in February, we called readers’ attention to the First Report and Order and Notice of Proposed Rule Making (FRO/NPRM) in the rural radio proceeding. There the Commission adopted a Section 307(b)-based “tribal priority” for new AM and FM allotments, and separately invited comments on possible further tweaks to that priority (e.g., whether and how to apply that priority to Native American Tribes who do not possess tribal lands). The FRO/NPRM has also been published in the Federal Register. That publication sets the comment deadlines for the NPRM section of item (comments are due by May 3, 2010, reply comments by June 2, 2010). Additionally, the publication makes the “tribal priority” and other changes adopted in the R&O portion effective as of April 5, 2010. (Check out our earlier post on this for a summary of the various changes.) 

While the “tribal priority” is not likely to affect the lay of the AM and noncommercial FM land for the time being – since new allotment proposals there require the opening of a “filing window” by the Commission, and no such windows are currently on the horizon, as far as we can see – it could affect commercial FM drop-in proposals early on. However, in view of the lag time between (a) the inclusion of new commercial channels in the Table of Allotments and (b) the opening of a window opportunity to file for those channels, increased service to Native American tribal lands as a result of the “tribal priority” is still probably a ways away.

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Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure.  Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs).  By and large the amendments are meant to serve laudable goals:  to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

• allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
• allow the FCC to amend  an action (as well as to set it aside) within the first 30 days;
• expand the use of electronic filing and notification;
• close some of the 3,000+ dockets that have become inactive;
• split overly large dockets; and
• clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

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The FCC has received approval from the Office of Management and Budget to implement its new rules clearing wireless microphones out of TV Channels 52-69 (the 700 MHz band). We reported on the adoption of those rules last month. OMB approval affects some of the deadlines in the clearing-out process. Those deadlines are now as follows:

• At any time on or after February 17, 2010, Public Safety and commercial licensees who are ready to occupy 700 MHz band channels may give notice to wireless microphone users to clear out.  (See Section 74.802(e)(2))
• Effective February 28, 2010, anyone who sells or leases wireless microphones (or offers them for sale or lease) must provide a “Consumer Alert” on their websites, in their product catalogs, and on microphone packaging, using FCC-specified wording.  (See Sections 15.216 and 74.851(i)).
• Effective June 15, 2010, any wireless microphone that operates above 698 MHz must be for export only and labeled that it may not be operated in the United States. (See Section 74.851(h)).

The June 12, 2010, deadline by which all wireless microphone users must stop operating on Channels 52-69 (698-806 MHz), remains unchanged.

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Long in coming, closed captioning complaint process finally emerges; Contact information due by March 22, 2010

The gestation period for the closed captioning complaint process – which thus far has fallen somewhere between the gestation periods of giraffes (420-450 days) and sperm whales (480-590 days) – appears to have entered its final phase. 

The Commission first announced its new and (arguably) improved complaint process in early November, 2008. As of December, 2009, that process had still not become effective, even though the Office of Management and Budget had signed off on it in July, 2009. But now we are pleased to report that the FCC has announced that the new closed captioning complaint process is effective as of February 19, 2010 . . . except for Section 79.1(g)(3), which still isn’t.

Let’s put that exception off to the side for the moment and focus on the elements of the process that have (finally) become effective.

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As we reported last week, the FCC’s Future of Media project (FOMp) has posed a long series of extraordinarily broad questions for public comment. The deadline initially set for those comments was March 8. If you’ve been burning the midnight [insert appropriately eco-friendly energy source here] in a desperate struggle to pull your thoughts together in time to meet that deadline, you can take a break. The Commission has announced that the deadline for comments has been extended to May 7, 2010. Since the original comment period provided only 46 days to begin with (the March 8 deadline was announced on January 21), the 60-day extension more than doubles the available time.

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FCC adopts 307(b) “Tribal Priority”, other incentives for Native American radio proposals, but defers overhaul of basic 307(b) analysis

As we reported back then, in April, 2009, the Commission issued a sweeping set of proposals designed to re-vamp the AM/FM allotment processes. The overhaul seemed primarily intended to instill order into the chaos that had become (and largely remains) of Section 307(b) analysis. A crucial secondary aim was to stem the seemingly inexorable movement of radio stations out of rural areas and into more densely populated areas. After devoting the first half of its Notice of Proposed Rule Making to those proposals, the Commission used the second half to toss in a laundry list of far less ambitious suggestions.

On February 3, the Commission issued a First Report and Order and Further Notice of Proposed Rule Making in which it grabbed the low-hanging fruit but declined – at least for the time being – to take on the more complex and controversial Section 307(b) issues. The primary beneficiaries of the changes that were adopted will be Native American Tribes, for whom the Commission has tried to clear a path toward easier acquisition of radio stations on tribal lands.

Here’s the scoop.

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Billions in broadband stimulus cash up for grabs – Deadline for applications: March 15, 2010

In the American Recovery and Reinvestment Act of 2009, known to some as the Gravy Train Act, but more generally known as the Stimulus Act, Congress allocated $2.5 billion to the Rural Utilities Service (RUS) and $4.7 billion to the National Telecommunications and Information Administration (NTIA). The money was to be doled out, in the form of grants or loans, to worthy projects designed to bring new or improved broadband service to America. As we reported last year, NTIA and RUS originally planned to make these awards in three tranches beginning in June, 2009 and ending before the September 30, 2010 award deadline imposed by the Stimulus Act.

Unfortunately, it’s harder to give out millions of dollars than you might expect. So far these agencies have managed to open only one application tranche, and have issued only a handful of grants.   Of course, they did get far more applications (2,200) than they had expected, which slowed things down. And the applications themselves required vast amounts of supporting data that was onerous in the extreme (the word “overkill” comes to mind) that had to be generated by the applicants and digested by the agencies. That slowed things down, too.

With the September 30 deadline fast approaching, each of these agencies has issued a second “Notice of Funds Availability” (NOFA) to distribute the remaining Stimulus Act funds for broadband projects.  Given the time constraints and the amounts of money already applied for, the third application window has been eliminated – meaning that this is the last opportunity to make a grab for any of this stimulus cash.    The deadline for filing applications for these funds is March 15, 2010. While applications can be submitted as early as February 16, there is no advantage in filing early other than beating the last minute rush.

Even if you are familiar with the NOFAs issued last year for the first tranche of funding, you still need to study these new NOFAs closely, because substantial changes have been made to the funding programs. Happily, many of these changes simplify what was universally understood to be an unnecessarily complex application process developed for tranche 1. Other changes relate to the prioritization of the awards.

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Not as momentous as the Julian-Gregorian shift, but changes you might want to note nonetheless

A couple of updates on comment deadlines that have changed since our last reports on the underlying proceeding:

Parental Empowerment – Back in November the FCC set comment dates in the “parental empowerment” inquiry. Those dates have since been extended. Comments are now due on February 24, and replies on March 26.

National EAS Test – And a couple of weeks ago we noted the issuance of an NPRM in which the Commission is proposing the establishment of an annual, nation-wide EAS test. The initial comment deadlines in that proceeding were announced on January 29: comments are due March 1, replies March 30.

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Changes accommodate widespread unauthorized use of wireless mics – some uses prohibited, new labeling rules, temporary power limits imposed

The FCC has bitten the bullet and taken steps to clear the 700 MHz band of wireless microphones in order to make room for new uses. At the same time, it has legalized these devices in the hands of formerly unlawful users.

Wireless microphones are ubiquitous. We see them on live and televised music shows and in TV news reporting. They are just as important, although less visible, when hidden under clothing in movies and TV drama and in live theater; they are equally indispensable to sports arenas, houses of worship, community centers, universities – anywhere that one person speaks to many. Even the FCC’s own meeting room has a few.

Most professional wireless microphones use unoccupied channels in the TV bands. These do not cause interference to TV reception because the large users, and the companies that sell to small users, are careful about avoiding TV channels in use. Even the organizations devoted to protecting broadcast spectrum have accepted wireless microphones.

Until now, the use of wireless microphones required an FCC license. Eligibility was strictly limited to broadcasters and radio, TV, cable, and movie production, and a few other groups. All other users – music venues, Broadway shows, churches, garage bands – have been operating illegally. These folks are supposed to use non-TV frequencies, but the TV-band microphones work better, and so are by far the most popular. Even so, the unlicensed use of wireless microphones caused no trouble, so the FCC left things alone.

Then came the digital TV transition, in the course of which the FCC repacked the channels to free up the 700 MHz band (the channels formerly known as TV Channels 52-69) for other uses. But some wireless microphones left over from before the transition still operate in that part of the band. These may cause problems for the new users of 700 MHz, primarily public safety and commercial applications.

The FCC has now issued a 101-page Report and Order and Further Notice of Proposed Rulemaking that attempts to both clear the 700 MHz band and legitimize the non-licensed users.

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Concerned about uncertain real-world-scenario performance of national EAS operation, FCC proposes annual national test for all EAS participants

The FCC has proposed rules providing for an annual test of the national alert capability of the broadcast Emergency Alert System (EAS).  What’s more, all EAS participants in the country will have to tell the FCC whether they received the test, whether they retransmitted it, and if not, what went wrong.

Just about every full power radio and television station in the country is required to have an EAS decoder in place, and most are also required to have an encoder and to conduct weekly and monthly alert tests.   All tests must be recorded in the station’s log.  Not every station is fully attentive to these responsibilities, and fines for non-compliance pop up fairly frequently.

The EAS is capable of both national alerts and alerts restricted to a smaller area, such as one state.  If a national alert is received, all stations must cease normal programming and either (a) put the alert on the air or, if they can’t put it on the air, (b) shut down.  Retransmission of smaller area alerts is optional on the part of the licensee.

The FCC has never tested the national alert system, so they are starting to wonder what would happen if the President ever pushed the magic button and tried to get his voice on every station in the country.  A lot of EAS decoders are automated, and a lot of stations operate unattended all or part of the day.  Would the nationwide system really work, or would it crash with a dull thud? 

(Actually, the Commission does have an idea of what might happen. It turns out that, in 2007, some FEMA workers in Illinois accidentally triggered a national-level EAS alert. Since it was not intended to be a test, presumably the alert looked like a real alert, and therefore it should have rocketed coast-to-coast lickety-split. Oops. Apparently, it “caused some confusion to broadcasters and other communications in the Ohio Valley and beyond” and ultimately ran out of gas because of a “combination of EAS Participant intervention and equipment failure”. That hardly encourages confidence that the system will work when it’s triggered on purpose.)

Such uncertainty may soon come to an end, if the FCC has its way.

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January 31 brings deadlines for payment of annual minimum fees and filing of election notices

Attention NONcommercial webcasters. January 31, 2010 brings deadlines for you just as it does for your commercial counterparts.  But the January 31, 2010 deadline – for making the annual payment and, if appropriate, filing a Notice of Election to participate in one of the available Noncommercial Webcasting Settlement Agreements – is perhaps more important to noncommercial webcasters. That’s because most noncommercial webcasters, whether or not they have elected to participate in a settlement agreement, will end up paying the $500 per channel annual minimum payment and nothing more (unless the webcaster exceeds the allowable 159,140 aggregate tuning hour monthly maximum triggering additional payments). So there’s no reason that you’d be late with this lone payment.

Timely filing of a Notice of Election to participate in either the General Noncommercial Webcasting Settlement Agreement or the Noncommercial Educational Webcasting Settlement Agreement is equally important, as it can alleviate some of the onerous playlist filing requirements the webcaster must make through the year. 

What follows is a summary of the immediate and ongoing filing and payment obligations applicable to noncommercial webcasters for 2010. Note that, for webcasting purposes, the commercial v. noncommercial distinction rests with the webcaster’s status under Section 501 of the Internal Revenue Code, not the webcaster’s FCC license (if there is one). 

If you are (a) a webcaster exempt from taxation under Section 501 of the Internal Revenue Code (or have applied for that status) or (b) a government organization operating your webcast consistent with your public purpose, read on. If none of these apply, you should go here for our similar summary applicable to commercial webcasters.

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The January 31 deadline for payment of annual minimum fees and filing of election notices is fast approaching

This the first, last, and,  possibly, only reminder to all commercial webcasters that January 31 is the deadline for filing the first of what will be many Statements of Account to SoundExchange with payment of copyright royalties for performance of sound recordings over the Internet during 2010. For some of you, there is a concurrent requirement to file a Notice of Election to obtain or retain the special status offered under one of the many webcasting settlement agreements. 

If you are a noncommercial webcaster (determined not by your FCC license but by whether the webcasting entity is exempt from taxation under Section 501 of the Internal Revenue Code), click here for a similar guide laying out your deadlines. 

Set forth below is a summary of the immediate and ongoing obligations for every commercial webcaster in 2010. And guess what? It's now in 3D! On Ice! Well, not exactly, but we do offer a direct link to every form as it appears on the SoundExchange website.

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Congress consents to roll the NBP deadline back from February 17 to March 17.

Maybe now the FCC will look at requests for extensions of deadlines more sympathetically.

The Commission has been working at breakneck speed for months in an effort to meet the February 17 deadline which Congress imposed for the delivery of the National Broadband Plan. It’s a huge undertaking, as our readers have probably figured out from our efforts to chronicle the FCC’s myriad inquiries, notices, etc.

But despite an “all hands on deck” total immersion approach involving pretty much every warm body on the Commission’s staff, it became apparent to the FCC higher-ups that they won’t be able to make the February 17 deadline. Since that deadline was set by Congress, the FCC couldn’t just ignore it. Rather, the Commission had to ask for an extension from the Senate and House Commerce Committees – just like so many of us have to ask the FCC for extensions every now and then. So Chairman Genachowski went to Congress and asked for four more weeks.

At least one published report indicates that, fortunately for the Commission, Congress was feeling charitable: word is that the NBP deadline has officially been shifted four weeks, to March 17.

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FHH, State Associations head to court; Bureau indicates that revised form may impose “unanticipated” practical burdens on filers

Two days before Christmas, and all was neither calm nor bright for Form 323 at the FCC. On December 23 the agency’s troubled efforts to launch its revised Form 323 – the Ownership Report for commercial broadcasters – got more troubled on a couple of fronts. In the morning, FHH, together with ten state broadcaster associations, asked the U.S. Court of Appeals for the D.C. Circuit to stay the implementation of the form pending Court review of the new burdens that form imposes. And hours later, the Media Bureau issued an order postponing indefinitely the deadline for filing biennial (but not other, non-biennial) Ownership Reports on the new form in order to fix mechanical problems that have cropped up with the form. While the two events were not directly related to one another, they both shone a glaring and none too favorable light on the FCC’s six-month (and counting) campaign to impose, without notice or comment, new and intrusive reporting obligations on commercial broadcasters.

We have already chronicled the history of, and major league flaws underlying, that campaign in considerable detail. Need a refresher? Click here and start reading. When last we checked in on things a couple of weeks ago, the FCC had finally taken the wraps off its revised form six months after first announcing in the Federal Register that the new form had been designed. (The FCC has never explained its reluctance to let us all kick the tires on the new form before having to drive it off the lot.) While the Commission had initially mandated in May, 2009, that the revised form would have to be filed by all commercial broadcast licensees by November 1 (reflecting their ownership as of October 1), that date had slipped to December 15, and then to January 11 (with the October 1 “as of” date moving to November 1). 

Meanwhile, in November FHH had filed, with the Commission, a motion to stay the implementation of the new form, and then a separate “Petition for Reconsideration or Such Alternative Relief As May Be Appropriate”. 

With the January 11 deadline closing in fast and no sign at all that the FCC was giving any serious consideration to the issues which FHH’s pleadings raised, FHH headed to court, along with the broadcaster associations from Alabama, Alaska, Arkansas, Kentucky, Louisiana, Mississippi, New Mexico, Puerto Rico, South Carolina and Tennessee.

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Regular readers know that the FCC adopted rules to allow new, unlicensed, wireless devices to operate in unused channels of the broadcast television spectrum just over a year ago. This was an exciting development for wireless broadband access and content providers, but incumbent users (such as television broadcasters and wireless microphone operators) worried about interference. Therefore, the FCC required that white space devices – which it calls “TV band devices” – must prevent interference by having both spectrum-sensing capability and also geo-location capability with access to a database of licensed users. The idea is that a device will: (a) access a database; (b) let the data base know where the device happens to be located;  and (c) receive a list of available frequencies for that location.  As an additional safeguard, devices will also detect other users and drop off their frequencies.  A separate and more stringent procedure will authorize “sensing only” devices that lack geo-location.

Obviously, establishing a database is a crucial step in the process of designing and testing these new devices because they must be able to interface with it.  Accordingly, on November 25, 2009, the FCC’s Office of Engineering and Technology issued a Public Notice “inviting proposals from entities seeking to be designated TV band database managers.”  

This is in part a creative design competition: the FCC specifies only that each design must include “basic functional architecture . . . a data repository, a data registration process, and a query process.” Beyond that, prospective database managers are limited only by the scope of their imaginations and the number of pipe cleaners they can grab off the craft table.

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Dim the lights! Drum roll, please! Curtains! Cue the musicians . . . and . . . theme song (“Here it comes, Form 323, Here it comes, our ideal . . .”).

On December 8, the new Ownership Report form for commercial broadcasters was at long last made available for review on the FCC’s website.  The unveiling was decidedly downbeat, at least as far as the Commission was concerned: it merely posted a new "headline" on the front page of its website, with a link to the public notice which it had issued four days earlier.

You can check out the new form on CDBS right now. Word is that it would be a good idea to do so, and maybe give it a test drive, because it may have some minor practical quirks that could take some getting used to.

As the Commission announced on December 4, they have provided a temporary work-around, for folks who are unable to get all the FRNs they might need to complete the form by January 11. The emphasis here is definitely on “temporary”: when you click on the “Special Use FRN” button, CDBS flashes up this helpful reminder:

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Agency addresses spread of digital voice technology 

The telephone system formerly relied on the technology called “circuit switching”: by dialing a number, a caller caused the equipment to set up a temporary, private connection with the person being called. This is inherently an analog technology. Now, however, calls are increasingly carried in data packets moving over heavily shared facilities, either the on public Internet or on private networks that operate in much the same way. But the FCC rules are still geared to the old analog circuit-switched system. They are not well suited to handling IP-related innovations like VoIP and Google Voice. Recently we harrumphed that these advances would soon trigger the need for a regulatory overhaul.

Either our harrumphings carried across the Potomac, or else (and more likely) the people at the FCC saw the same facts we did and reached similar conclusions. The FCC has now released a short public notice with the momentous title, “Comment Sought on Transition from Circuit-Switched Network to All-IP Network.” It solicits input on the contents of a possible future Notice of Inquiry. Responses to the NOI in turn would inform a Notice of Proposed Rulemaking. And comments in response to the NPRM would help the FCC to formulate new rules. With three comment cycles planned, and allowing a year or two for each, the rules will take a while. (If you’re inclined to stake out your position early in the process, the deadline for responding to the initial comment invitation is December 21, 2009.)

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January 11, 2010 deadline still effective

Breaking a long silence, the Media Bureau has at last announced that the revised Ownership Report (Form 323) for commercial broadcasters should be available for review on line at the FCC’s website sometime in the next five days. Since the Bureau (and, presumably, the Commission) is sticking with the previously announced January 11, 2010, deadline for all commercial broadcasters (including LPTVs and Class A TVs) to file that form, it might have been nice for them to make the form available by October 1 (when it was first promised), or by November 16 (the next target date), or by sometime the week of November 16 (when the date slid again), or by now. But what the heck – it looks like December 9 (or maybe sooner) is the date that All Will Be Revealed.

The public notice announcing the impending revelation of the revised form also promises that the Commission will convene an “instructional workshop” on the revised form on December 9 at 2:00 p.m. in the Commission meeting room. (Can’t make it to D.C. for the festivities? No problem – the workshop will be broadcast live on the Internet at www.fcc.gov/live.)

Frequenters of our blog may be asking themselves: “Will we still have to include FRNs for each of our individual ‘attributable interest holders’?” After all, as we pointed out to the Commission in both a motion for stay and a petition for reconsideration, imposition of that particular requirement raises a number of very difficult – some might say insurmountable – legal problems.

Apparently the Commission got the memo, but didn’t read it all the way through.

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Commission seeks comment on “uses of spectrum”

If you’ve got a TV license, you’ve got a problem. After a couple of months’ of crescendoing news reports, rumors, indirect proposals, and other non-official murmurings, the Commission has issued a formal request for comments on “uses of spectrum”. But don’t let that hopelessly vague title fool you. The focus of the inquiry is the possible repurposing of TV spectrum for wireless broadband services.

Yikes! Talk about an inquiry of staggering scope and complexity, with vast implications for the economy and the very cultural fabric of our society! Not to worry, though – you have a grand total of 19 days, to December 21, 2009 (oops - make that 18 days now), within which to gather your thoughts, bundle them up coherently and ship them off to the FCC.

The motivation here is the notion that there’s just not enough spectrum currently available to “meet the demand for wireless broadband services in the near future”. Since the arrival last summer of Chairman Genachowski (motto: “Mmmm, Broadband – Is there anything it can’t do?”), the Commission has been on an All-Broadband-All-The-Time juggernaut. With Congress adding to the frenzy through its multi-billion dollar broadband stimulus give-away program, the expansion of broadband into every nook and cranny of the USofA has become a regulatory obsession. And pushed by that obsession, the Commission has set out on a quest for a modern Philosopher’s Stone that might turn base spectrum into wireless broadband-worthy gold. Some helpful (if not entirely disinterested) observers, including the wireless industry and the Consumer Electronics Association, have suggested that TV spectrum would be a good place to look.

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Comment deadlines set in “parental empowerment” inquiry

Last month we reported on the FCC’s Notice of Inquiry into parental empowerment. That notice has now made it into the Federal Register, which in turn establishes the comment and reply comment deadlines. If you’re moved for whatever reason to chime in on any or all of the questions posed in the notice – sample question: Is there “a minimum level of media literacy that parents, teachers, and children must have to ensure that children can participate effectively in modern society and enjoy the benefits of electronic media while avoiding the potential harms” – you have until January 25, 2010. Reply comments are due on February 22, 2010.

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Privacy Act notice requirement may inhibit FCC plans for 12/15 Ownership Report filing

As of late in the afternoon on November 20, the Commission is still apparently sticking to its December 15 deadline for its revised Ownership Report (FCC Form 323) for commercial broadcasters – at least according to its website. The FCC doesn’t seem to think that it’s a problem that that revised form has still not been made public, or that the dwindling period (less than four weeks as of this writing) between now and the deadline is interrupted by the Thanksgiving holiday. While rumors swirl about possible postponement of the deadline – some suggesting a postponement is possible, others suggesting just the opposite – the Commission so far has kept mum, which means the clock is still ticking toward December 15.

Interestingly, on November 19 the Commission published in the Federal Register a “System of Records Notice” (SORN) regarding the new form. We say that this is interesting because the timing of that publication may, under the Privacy Act, force the Commission to delay the filing deadline, at least briefly, or make some changes to its filing system. 

Under the Privacy Act, any agency that intends to maintain and use any records containing personally identifiable information must publish a SORN in the Federal Register. The SORN provides details on how the records will be handled by the agency. Normally, the publication of a SORN starts a 40-day waiting period (a) during which it is to be reviewed by the OMB and Congress and (b) before the end of which the agency may not implement the system. 

But 40 days from November 19 would be (let’s see, 30 days hath November, add five, carry the seven . . .) December 29 – and that would be two weeks after the December 15 deadline toward which the Commission has been driving us all! Presumably recognizing that inconvenient fact – and still obsessively committed to the December 15 deadline – the FCC requested a waiver of the 40-day filing deadline. The basis for its waiver request? Well, the December 15 filing deadline is approaching so fast.  (Curiously, the Commission offered no explanation as to why it hadn’t bothered to publish the SORN more than 40 days before the filing deadline the Commission had chosen; it also failed to explain why the December 15 date is so overwhelmingly important that that date, rather than the SORN waiting period, cannot be changed.) 

At this point it’s unclear whether that waiver has been, or will be, granted.

But wait, there’s more.

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Fletcher Heald seeks stay of Form 323 filing deadline

Fletcher, Heald & Hildreth has filed a Motion for Stay with the Commission, asking it to hold off on the implementation of its new Ownership Report (FCC Form 323) for commercial broadcast stations.  You can read the FHH motion here.  As we have reported previously on our blog, the revised Form 323 is currently due to be filed by December 15, even though the Commission has still (at least as of the morning of November 17) not formally unveiled that form.  (Want a sneak peek? Here’s a link to the version of the form that was apparently approved by OMB. Whether the final version that the FCC plans to post on CDBS will differ from the version taken from the OMB site remains to be seen.)  

If the Commission stays on its current schedule, reporting licensees will have, at most, only four weeks (including the intervening Thanksgiving holiday) to access, complete and file the form. Since the universe of reporting licensees has been expanded considerably – to include, for the first time ever, LPTV and Class A TV stations – that’s a pretty tall order in any event.

But the primary problem with the new form is that it requires all individuals and entities with an “attributable” interest in the licensee to identify themselves with their own unique FCC Registration Numbers (FRNs).

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It is hard (or maybe not so hard) to believe that back in February when the American Recovery and Reinvestment Act was enacted, the administrators at the Departments of Agriculture and Commerce were promising that grants would start to be made in May, with most of the first round funds awarded in June.  Here we are fast approaching December and nary a grant for infrastructure projects has been made.  To be sure, wizened and calloused observers of the bureaucratic process predicted that it would take considerably longer than the original estimates, but the same wizened and calloused observers also expected that, having later committed to an autumn award date, the BIP and BTOP folks would have been driven to get something out by September, October or even November, if for no other reason than to keep their street cred. The difficulty seems to be that they made the application process so cumbersome, but nevertheless got so many applicants, that it's taking months to sift through all the requests.   Surprisingly, when millions of dollars in free money is put up for grabs, lots of people ask for it.

BIP and BTOP are now moving seriously into Phase II of the first round. Phase II is like that part of the Miss America pageant where the field is reduced to 10 swimsuit-clad lovelies with preternaturally gleaming smiles, only here no Miss Congeniality points are awarded. At the same time, the administrators are thinking ahead toward the next round of applications. It had already been widely reported that the number of rounds would be reduced from three to two. The next round is supposed to be opened early in 2010, which means that the rules and procedures governing that round need to be established pronto.  The folks in charge have therefore released a "Request for Information" with a very abbreviated comment date seeking input on both the procedures that should apply to the next round and what funding criteria should be substantively applied. Would-be applicants should take heed, since changes in both of these categories could have a serious impact on their chances of obtaining funding.

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Another step closer to mobile spam?

Back in September we wrote about a petition for declaratory ruling filed by Club Texting, Inc., which appeared to be anticipatorily seeking a Get Out Of FCC Jail Free card for itself and others engaging in “text broadcasting”.   Deadline alert!!!  The FCC has just invited the public to comment on that petition. In a public notice issued November 9, the Commission summarizes Club Texting’s petition, and then opens the door for the Great Unwashed to chip in their two cents’ worth. Comments on the proposal are due by November 30, reply comments by December 7.

Curiously, the FCC’s public notice does not provide a link to Club Texting’s petition. Such a link would certainly come in handy to anybody who might want to take the Commission up on its invitation to submit comments. Even more curiously, when we went out to the FCC’s ECFS to try to track down the petition, we couldn’t find it – even using the spiffy new ECFS interface. No problem – we tracked down a copy of the petition  and are providing the link, above, as a public service.

The Commission’s notice tersely echoes the general points advanced by Club Texting in its petition. What the notice doesn’t emphasize is that “text broadcasting” is pretty much the same as (or, as Club Texting describes it, the “functional equivalent” of) that scourge of the late 20th Century, junk faxing. (Not surprisingly, Club Texting prefers the more benign term, “fax broadcasting”.) Nor does the public notice mention that Club Texting is touting, on its website, the fact that it has over 60 million cellphone numbers that it can make available to its customers who might want to text their important messages to some, or all, of those 60,000,000 phones. The Commission probably didn’t mention that factoid because Club Texting didn’t mention it in its petition.

Anyway, if you feel moved to comment on Club Texting’s petition, you’ve got until November 30.

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FCC solicits comments, information on interplay of broadband deployment and education at all levels

As part of its ongoing efforts to get a handle on All Things Broadband before the FCC’s homework (i.e., the National Broadband Plan, a/k/a the NBP) is due in February, the Commission has released yet another Public Notice, this time seeking comments on issues relating to the educational use of broadband. 

To ensure that the information is thoughtfully prepared and presented in a manner that will maximally assist the Commission to draft the NBP in the next three months, the Commission generously gave parties 17 days to prepare their submissions. Initial comments are due to be filed by November 20, so you can get that project off your desk before Thanksgiving. No such luck with reply comments: they’re due by December 11.

The latest Public Notice invites comments on virtually every aspect of the educational use of broadband technology.  By “educational”, it means everything from pre-K to grad school, including both institutions and students. The kind of input it’s looking for? Pretty much anything and everything, including “implementation strategies, budgets/expenses, financing strategies, programmatic goals, measured outcomes, and other detailed operational and strategic information about the programs using broadband for educational purposes.” Again, this information is to be presented by November 20.

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Freeze on proposed changes to reference points of channels up for grabs REMAINS IN EFFECT; Freeze on ALL minor FM mods now set to commence at 11:59 p.m. on February 5, 2010

That was quick. The Commission has announced that it is postponing the upcoming opportunity to file for certain vacant NCE-reserved channels. Just a week after that opportunity was first announced (and reported here), the Commission has pushed back the dates by two months. According to a public notice released on October 23, the filing window will now open up on February 19, 2010, and shut down on February 26, 2010.

When the filing opportunity was first announced, the Commission also simultaneously imposed a freeze on any applications proposing to modify the reference coordinates of any of the 67 allotments available for filing during the upcoming window. That freeze, which started on October 16, is still in place notwithstanding the postponement, and will remain in place until the day after the close of the extended filing window. You can read more about that freeze here.

A separate freeze – on any commercial or noncommercial FM minor mod applications – was also originally announced to go into effect on November 25 and extend until the close of the window. That separate freeze has also been postponed: now that freeze on all minor mod FM applications will commence at 11:59 p.m. on February 5, 2010. It will continue in effect until the close of the window.

The postponement was sought by a number of NCE broadcast groups and their supporters, who argued that the two-month ramp-up time provided in the first place would be inadequate for many prospective NCE applicants. Reflecting what appears to be an acute sensitivity to such arguments (or, possibly to such supplicants), the Media Bureau granted their request less than 24 hours after that request had been submitted.

We can only hope that this establishes a “same day service” standard which will be available to one and all who seek accommodations from the Commission.

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With no approved form yet available, Media Bureau puts off November 1 deadline

The Media Bureau has blinked. With the original due date – i.e., November 1, 2009 –  for the initial filing of all biennial Form 323s fast approaching, but without OMB approval of the new report forms themselves, the Bureau has announced, on its own motion, that it is extending the deadline for filing those reports. Instead, the Bureau will release a public notice at some future point, specifying a new filing deadline no less than 30 days after that public notice.

As we have previously reported (here and here), the Commission decided last Spring to revise Form 323 (the Ownership Report for commercial broadcast licensees). It also decided to abandon the longstanding practice of having stations file their respective biennial Form 323s on the anniversary date of the filing of their license renewal applications. Instead, the Commission said that all biennial Form 323s would henceforth be filed, biennially, on November 1 (with the reported information current as of the preceding October 1).

The problem that the Commission has since encountered is not surprising, in view of the fact that it set the new process in motion before it had come up with the revised form to be used.  Rather than have the revised form ready to roll last Spring, the Commission left it to the Media Bureau to concoct a new form, get it approved by OMB, and have it ready to roll by November 1. While the Bureau tried hard to get the job done, at least one aspect of the task – OMB approval – was out of the Bureau’s hands: the Bureau could prepare a revised form and ship it over to OMB, but the Bureau could not compel OMB to approve it quickly -- or at all, for that matter.

Not surprisingly, as of October 2 OMB had still not approved the revised Form 323. (Considerable objection has been raised against the revised form before OMB, presumably slowing OMB’s deliberative processes down some and possibly – or likely, depending on whom you talk to – justifying OMB rejection of the new form. Since OMB could theoretically hold off on its decision until mid-October, the Bureau recognized that the uncertainty of the situation warranted putting off the deadline. And that’s just what it did.

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In a proceeding that has moved at glacial speed, even by FCC standards, the Commission has opened a window to allow noncommercial applicants that are mutually exclusive with certain commercial applicants for FM, FM translator, TV and AM stations, to amend their applications to specify commercial operations by October 30, 2009. Failure to amend by that date will result in the dismissal of the NCE applications. With two exceptions, relating to stations formerly licensed to Michael Rice, the applications subject to amendment all pre-date the Commission’s first broadcast auction in 1999 – the most recently filed of those applications date back to 1997 (you remember – that was the year the Spice Girls rocked us all with Wannabe). The Commission has thoughtfully provided lists of the MX groups – including 13 FM stations, three FM translators, one TV and two AM’s – here and here.

As some may recall, the difficulties that have kept these MX groups of applications pending so long arose when auctions were adopted as the method of picking a winner from among mutually exclusive applicants. The statute authorizing auctions provides that all authorizations for commercial broadcast stations must be auctioned but that noncommercial stations can’t be auctioned. When the auction rules were adopted, however, the Commission already had pending groups of MX applications that included both commercial and noncommercial applicants. What to do?

In 2003, the Commission decided that it would simply dismiss all of the noncommercial applicants that are MX with commercial applicants for the same channel. Then, in its Memorandum Opinion and Third Order on Reconsideration in December, 2008, the Commission decided that it would be too harsh to dismiss the noncommercial applications because of processing changes that had taken place after the applications were filed. Accordingly, the Commission gave noncommercial applicants in that peculiar situation one last chance to amend their applications to specify commercial operation, which would then clear the way for an auction. (Applicants which chose not to so amend were told that their applications would be dismissed.) The Commission directed the Media Bureau to open a window for such amendments. When we blogged about that direction, we indicated that we expected that the Bureau would be moving forward “in the near future” – how were we supposed to know it would take ten months?

In any event, the Bureau has now issued its call for amendments. The only applicants eligible to amend their applications are the noncommercial applicants listed in the 19 remaining MX groups, and the only amendments that will be accepted are those for the sole purpose of specifying commercial operation. No other portion of the application may be amended. Any NCE application that has not been amended by October 30 will be dismissed. After those dismissals, presumably the Commission will move forward with an auction among the surviving applicants. Of course, it remains to be seen how many applicants still care, or even remember that they have an application pending, some 12 to 15 years later.

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It’s official! The FCC has formally announced that the deadline for reg fees this year will be 11:59 p.m. (ET) on (drum roll . . . fanfare) September 22, 2009. But why wait until then? The teller windows are now open at Fee Filer, so why not avoid the late September rush and check this chore off your to-do list right now.

The newly-officialized deadline is indeed the same as was reflected in the reminder letters received by many a week or two ago. While we had informally heard from a Commission staffer that that date might get moved a tad, that plan apparently got nixed – possibly because of the potential for confusion that it reeked of.

When you do pay your reg fees – and, given the penalities for non-payment, there really is no option here – don’t forget to include payments for all your auxiliary licenses. The reminder letter sent out by the Commission lists only your main channel(s), and leaves it to you to track down those pesky auxiliaries (the fee for which is $10 each). While the 25% late charge on a $10 fee may not look bad, the other, non-cash, penalities – including possible red-lighting – should be scary enough to get you into ULS tout de suite to doublecheck your list of auxiliaries against what the FCC thinks you have.

We here at Fletcher Heald will be happy to assist in getting reg fees paid. Let us know if we can help.

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BUT applications must be “pending” in Easygrants® System by August 14

RUS and NTIA have announced that the deadline for submitting BIP and/or BTOP applications electronically has been extended from August 14 to 5:00 p.m. (Eastern time) on August 20, provided that such applications were already “pending” in the on-line “Easygrants® System” by August 14.

According to RUS/NTIA, the volume of activity by prospective applicants has caused “service delays” on the Easygrants® System. To make sure that everybody gets a chance to complete applications that they’ve started, the agencies have beefed up their own infrastructure by adding servers, and have extended the submission deadline.

In order to be eligible for the extended August 20 deadline, an applicant must have its application “pending” in the system as of 5:00 p.m. on August 14. That means that the applicant must have taken the following steps by then:

            1.         Log into the Easygrants® System at www.broadbandusa.gov;

            2.         Select “Start a new application” under “Apply for a new grant/loan;”

            3.         Select one of the two choices for available funding opportunities;

            4.         Select “Continue;” and

            5.         Select “ok” when prompted “Are you sure you want to apply for the program.”

All other requirements for electronic filings remain the same as set out in the NOFA. No changes have been made to any instructions, requirements or deadlines relative to paper submissions.

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Where’s the FCC’s copy of the MusicFIRST Request been hiding?

As we reported recently, the FCC has invited comment on the Request for Declaratory Ruling filed by the MusicFIRST Coalition. For the convenience of our readers, we provided a link to a copy of the Request. Good thing that we did. Apparently the FCC has been having quite a time trying to track down any copy in its files reflecting a “received” stamp from the Secretary’s office. 

As an apparent result, as of 5:00 p.m. today (August 12, 2009) no copy at all of the Request had been posted in Docket No. 09-143 on ECFS, even though the public notice inviting comments was supposedly released five days ago – so anybody who (a) might have wanted to read the Request between then and now and (b) hasn’t thought to look for it on CommLawBlog.com would have had a bear of a time finding it. 

We’ve heard from one source who suggested that it’s not clear that the Request ever made it to the Secretary’s office. To be sure, the copy of the Request that we have in hand (no thanks to the FCC) includes a certificate of service indicating that it was being filed at the appropriate FCC filing address – but ordinarily, when things are filed at that address, stamped copies are made and retained by the Commission for future reference. So if it did pass through the Secretary’s office, it’s unclear why it didn’t get stamped in . . . and if it did get stamped in, it’s unclear why it’s taking so long to get a stamped copy posted for public review.

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You may be getting a letter from the FCC in the next couple of days (if you haven’t already) alerting you to the deadline for this year’s regulatory fees.  That letter – which will not bear any signature of any FCC official or identify any originating office within the FCC – will probably say that the deadline is September 22. 

Don’t necessarily believe it.

 We have been informally advised by the Commission’s staff that the letters were prepared and shipped out by an outside company to which the FCC had given the September 22 date some time ago.  But in the meantime, the Commission’s staff has apparently determined that either September 23 or 24 might be a better date.  We are told that an official notification – including a banner to be prominently displayed on the FCC’s website – is in the works.  Of course, the final date may turn out to be September 22 after all, just like the letter says.  Sometimes you never know about these things.

Needless to say, whatever the final deadline might be, you are not required to wait until the very last minute to file your fees.  Au contraire.  You should feel free to file your fees at your earliest convenience.  As far as we can tell, the fees specified in the letter notifications that got sent out may be correct (although, as we have previously warned everyone, those notifications do not include fees for any auxiliary stations).  In other words, with the letter in hand you should be able to figure out what you owe.  So you might even be in a position to file your fees today.

Not. 

Unfortunately, as it turns out, the Commission’s Fee Filer system has not yet been set up to accept this year’s reg fees.  And, as we have previously reported, all reg fee filers this year must start the payment process through Fee Filer.

When will you be able to file your fees?  When will you have to file your fees?  At this point nobody seems to know for sure.  We expect all of these questions to be cleared up reasonably quickly.  Check back here to CommLawBlog for updates on getting your reg fees filed.

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The Commission is hustling to get Auction 79 ready to roll – the agency has already followed up its preliminary request for comments (issued at the end of February) with the issuance of a formal “Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 79”  (Auction 79 Notice).  With the Auction 79 Notice the auction process shifts into high gear.

The Auction 79 Notice contains few surprises. It addresses and resolves a small number of proposed tweaks to its auction processes, but for the most part adheres to the procedures which have been used for broadcast auctions over the years. If you (a) are interested in participating in the auction but (b) are not familiar with those procedures, you should start now to get a handle on how FCC broadcast auctions work. The system is not always intuitively obvious, and unwary (and unknowing) bidders are at a very distinct disadvantage when the action starts. 

There are at least two notable changes from the past.

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Bureau provides guidance, grace period of sorts until May 31

If you have a broadcast construction permit that’s about to expire, listen up. The Media Bureau has provided some “guidance”on how to take advantage of a rule change that took effect last year, a change that could help you breathe the breath of life into that dying CP, if only for a little while. The “guidance” doesn’t begin to answer all the possible questions, but it at least establishes an important filing deadline for some CP assignment applicants.

Way back in December, 2007, the Commission adopted a number of rule changes intended to “increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses, which historically have not been well-represented in the broadcasting industry.” It took the FCC four months to publish its order, which hit the presses in March, 2008; some of the rules took effect in July, 2008.

In that order the FCC agreed to allow the sale of expiring CP’s to “eligible entities” who pledge that they will complete construction before the expiration or within 18 months of consummation of the permit, whichever is later. The goal was to provide the acquiring “eligible entity” its own construction period of at least 18 months. Since the permits in question would otherwise likely expire (since CP’s cannot normally be extended), the thinking was that this would create an incentive for holders of soon-to-expire permits to deal them off to “eligible entities”, thereby increasing the number of such entities participating in the broadcast business.

But the original order left a number of details up-in-the-air.

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122 FM CPs set for auction to start on September 1, 2009

Heads up, all you radio folks who have had to sit on the sidelines while the DTV transition got all the attention!! The Commission has announced that the next auction of FM broadcast permits has been scheduled to start on September 1, 2009. Mark your calendars and get your checkbooks ready.

A total of 122 CPs will be on the block. A complete list of the channels/markets involved can be found here.

The public notice is the first step in a standard process which the Commission has historically used in connection with its broadcast auctions. The notice: (a) sets forth the auction methodology which the FCC proposes to use – it appears at first glance to be essentially the same methodology used in earlier auctions, and (b) lists the CPs for sale and ascribes minimum opening bid values to each. The notice also serves as an invitation for public comment about both methodology questions and the specific minimum bid values. Comments are due no later than March 20, 2009, and reply comments by April 1.

Once those dates have passed and the Commission has had an opportunity to address any comments filed, it will issue a further notice providing more detail about the schedule of auction activities, including deadlines for initial applications, upfront payments and the like.

A word of caution. Since the FCC has bothered to include this bold-face disclaimer in its notice, we figure we should pass it along straight from the horse’s mouth:

The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC construction permittee in the broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.

While September may seem well into the distant future at this point, anyone who might have any interest at all in participating in the auction should begin immediately to get familiar with the process.

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FCC calls for comments on complaints from PEG programmers

Virtually all cable systems are required to carry public, educational and governmental (PEG) channels. These are the channels where you find an assortment of city council meetings, homework help sessions, coverage of local festivals and other home-grown programming. The FCC recently invited comments on three separate petitions for declaratory ruling regarding PEG-related carriage issues.

As useful, charming and informative as PEG programming can be, cable operators hardly rank PEG channels up with ESPN, CNN or The Food Network as “must-have” content. Go figure. But Congress has directed that cable systems must carry the PEG channels on their basic tiers, which puts the cable folks in something of a spot.  Recently, a number of cable operators have developed creative ways to fulfill – or at least arguably fulfill – their PEG obligations, while still freeing up channels for other purposes. Some of those methods have drawn the ire of PEG access organizations.

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On August 22 we reported on the FCC’s Notice of Proposed Rulemaking looking to clear out all auxiliary operations in the 700 MHz band in advance of the February 17, 2009, DTV Transition.  The deadlines for submitting comments on the Commission’s proposals have been established.  October 3, 2008, is the deadline for comments, and October 20 is the deadline for reply comments.

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It’s official!! The FCC has announced that the deadline for filing 2008 regulatory fees is 11:59 p.m. on September 25, 2008.  The announcement was made in the context of a notice issued by the Commission providing information about the available mechanisms for paying the fee. Whatever payment approach you use, you would be well-advised to use it before the deadline – the Commission charges a 25% late-payment fee to those who miss the deadline.

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Last month, we reported on the Notice of Inquiry and Notice of Proposed Rule Making (NOI/NPRM) launched by the Commission to examine "embedded advertising" in light of the dramatic increase in the use of "product placement" and "product integration." Advertisers have become increasingly reliant on such techniques as technology has enabled viewers to circumvent traditional commercial breaks with ease.

Through the NOI/NPRM, the Commission is attempting to determine whether changes to the current sponsorship rules are necessary in today's environment, while proposing new sponsorship identification announcement requirements designed to make embedded advertising more obvious to the consumer.

Comment deadlines for the proceeding have been announced for those wishing to participate.  Comments must be received by the Commission by September 22, and Reply Comments are due October 22, 2008.

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The FCC has lifted the freeze on the submission of DTV maximization applications and channel changes, effective May 30, 2008.  Applications which expand the previously-authorized service area of the post-transition DTV station, or propose the change in the post-transition DTV channel, can now be submitted.  All applications and petitions submitted between May 30, 2008, and June 20, 2008, along with those previously-filed applications and petitions which also included a request for waiver of the filing freeze (in place since 2004), will be given the same cut-off date.  After June 20, 2008, applications and petitions will be considered filed as of the date they were submitted.  Requests to change the community of license of DTV stations will not be permitted at this time. 

In the event that two applications submitted during the window are mutually-exclusive, the Commission will grant otherwise-acceptable applications with a specific condition that the mutually-exclusive applicants resolve their conflict with a 30-day settlement window.  If the parties cannot resolve the mutual-exclusivity within this period, the applications will be dismissed.  Finally, the FCC warned potential filers not to attempt to seek extensions of the construction deadlines based on a pending request for channel change or maximization application.

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As we reported here in early March, the Commission ordered applicants with more than 10 short-form translator applications still pending (from the 2003 filing window) to advise the Commission of which 10 applications the applicant wants to continue to prosecute.  All others would then be dismissed.  The deadline for those notices was Thursday, April 3. 

But five days after that deadline, the Commission has had a change of heart. In a public notice, the Commission has announced that the dismissal of FM translator applications has been suspended.

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**CORRECTED AND UPDATED AS OF 5:00 P.M. - 4/1/08**

As reported yesterday, the rules for the DTV Education Initiative became effective on March 31, 2008. The FCC has also received final approval for the FCC Form 388 and, as of April 1, the Commission has posted the form on its webpage.

Heads up!!!  Form 388 is NOT available in CDBS.  Rather, it must be filed as a Report in MB Docket 07-148.  The FCC has made available two versions of the form - one in Microsoft Word, one in PDF.  The Word version DOES permit the user to fill in the form through the computer.  The PDF form is NOT interactive (at least as of this writing) - so if you want to use the PDF, you will need either to (a) print it out and fill it in by hand or typewriter or (b) configure it on your own to be interactive.

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As previously reported, the Commission adopted rules requiring broadcasters, MVPDs and telecommunications carriers to engage in a coordinated educational campaign regarding the DTV Transition.  The rules were to become effective once (a) the FCC's notice had been published in the Federal Register, (b) the Office of Management and Budget had approved the new "information collection" requirements, and (c) notice of the OMB's approval had been published in the Federal Register.  Those three events have all occurred - the last occurring with the March 31 Federal Register notice of OMB's approval.  That Notice indicates that: the rules become effective March 31; full power television broadcasters must file new FCC Form 388 no later than April 10, 2008 (and quarterly thereafter); and MVPD and eligible telecommunications carriers must come into compliance with the rules on April 30, 2008.

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Last November, the FCC announced that it had adopted a new "enhanced" programming report for TV licensees, and also that it would require TV licensees to post pretty much all of the local public files on their respective websites.  From March 13 until May 12, we all have an opportunity to send comments on the resulting paperwork to the FCC, which will then pass the comments on to the Office of Management and Budget (OMB) to let them how we feel about these new burdens.

OMB gets involved because the new reporting and website posting requirements are what the Federal government calls "information collection" activities.  Under the Paperwork Reduction Act, before an agency like the FCC can impose new information collection activities, it has to get OMB to bless them.  So the FCC has now had a notice published in the Federal Register to solicit comments related to the Paperwork Reduction Act, which then will be added to its own presentation and forwarded to OMB for its consideration.

We strongly encourage everyone to take advantage of this opportunity.  It is at least possible that a compelling showing of the extreme burdens imposed by the new FCC requirements could force the government to re-think them.

Technically, comments should address the need for the information to be collected, the accuracy of the Commission's estimate of the burden of the collection, ways to improve the information collection requirement, and ways to reduce the burden on respondents.  Any comments are due to be filed by May 12, 2008.

It seems to us that the Commission has grossly underestimated the burdens imposed by the new rules and overestimated the utility of the information to be collected and/or posted.  For example, the FCC's estimate of the time which would be required to complete Form 355 is rather fuzzy and shows significant costs to each station, costs which will be repeated quarterly - a fact which the FCC does not readily admit.  According to the Commission, filling out the form may take anywhere from 2.5 to 52 hours, a rather broad range to say the least.  The Commission has not explained how this new requirement will generate any more interest from the public, or otherwise promote the Commission's localism goals, any better than similar requirements in the past have done.  Taking the Commission's own estimate, the imposition of a new filing that could require more than a work week's time to complete should require some justification - and that's EVERY QUARTER!

If there are multiple comments from affected parties (i.e., television licensees) pointing out these flaws, the FCC might be forced to come up with some justification for its rules and to explain how the new burdens comport with the Paperwork Reduction Act.  The entertainment value alone of watching the FCC make this effort could be substantial, and a serious inquiry could even force some re-thinking.

For those inclined to try to get the FCC to reconsider outside of the OMB process, the March 13 Federal Register publication also establishes the deadline for filing petitions for reconsideration, and that deadline is now April 14, 2008.

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If you are thinking about filing comments in response to the FCC's Localism Report and Notice of Proposed Rulemaking (MB Docket No.04-233), be advised that the deadline for those comments has been extended by the Commission to April 28, 2008.  The extended date for reply comments is June 11.  As we have observed in previous postings here and in the FHH Memo to Clients, this proceeding is extremely important and could end up imposing very substantial new burdens on all broadcasters.  We urge all broadcasters to take a close look at the FCC's proposals and to make their feelings about those proposals known as clearly and forcefully as possible.  FHH will be preparing comments on behalf of a number of clients - if you would like to join in that effort, please give us a call.

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It's fish-or-cut-bait time for folks who filed more than 10 applications for FM translators in FM Auction No. 83 back in 2003: if you still have more than 10 applications pending from that window, you must decide - by April 3 - which 10 you want to continue to prosecute, and which others may be dismissed.  If you fail to make that call by April 3, the FCC will make it for you.   

In a Public Notice released March 4, the Commission followed up on the "limit of 10" policy which it had announced in its December 11, 2007 decision in the Low Power FM proceeding.

The "limit of 10" policy was established to address the Commission's "concerns about the integrity of [its] FM translator licensing procedures."  While 80 percent of filers in the 2003 FM translator window submitted 10 or fewer proposals, a handful of applicants filed many more.  The two most active filers - the commonly-owned Radio Assist Ministries and Edgewater - filed 4,219 proposals collectively, representing nearly a third of the Auction No. 83 filings.

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The Commission released an Order on Monday, March 3rd requiring broadcasters, MVPDs (i.e., cable, satellite), manufacturers and wireless service providers to commence specific public outreach initiatives to educate the public on DTV Transition matters.  The Commission had released proposed rules in July, 2007, and has now taken steps to implement several of the proposed rules.  
 
On the broadcast side, the Commission will require TV licensees to select one of three outreach programs.  Each of the options includes a mix of Program Service Announcements (PSAs) and video crawls - all of which must be reported back to the FCC on a new form (FCC Form 388) describing the efforts.  For example, under the first option, television stations would be required to air 15-second PSAs and run one 15-second video crawl four times a day, totaling 28 of each during the week.  The second option would require only an average of 16 30-second video crawls and an average of 16 30-second PSAs each week, along with additional announcements in the last 100 days prior to the end of the Transition, and a "bug" on the screen that will provide a countdown to the end of the transition.  The third option will be available only to noncommercial broadcasters, and would require them to air 60 seconds per day of consumer educational programming between now and April 1, and then 120 seconds per ay from May 1, 2008 to October 31, and finally 180 seconds per day from November 1 until the Transition.  The Commission is not placing any requirements on Low Power and Class A television broadcasters, but urges them to commence educating the public with regard to the end of the DTV Transition.

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With the publication of the Commission's Notice of Proposed Rulemaking on localism in the February 13, 2008 Federal Register, the deadline to submit Comments in the proceeding has been set for March 14, 2008.  Reply Comments will be due on April 14, 2008.

As discussed previously on this blog, the NPRM presents a laundry list of tentative conclusions and proposed rules that would turn the clock back nearly three decades, forcing broadcasters to comply with costly and burdensome requirements, including a return to ascertainment requirements similar to those required of licensees through the early-1980's.

The Commission is expected to receive a barrage of opposition from the broadcast community, including a challenge by the National Association of Broadcasters and many of FHH's broadcast clients.

If you have questions or wish to participate in the proceeding, you should contact your FHH attorney immediately.

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On Wednesday, January 30, 2008, the FCC's Third Periodic Review was published in the Federal Register.  With that, the white flag has come down and the TV industry has entered the gun lap in the DTV transition.

The Federal Register publication also marks the effectiveness of the new interference standard of 0.5% and the permissible use of Longley-Rice and cell sizes of 0.5, 1, or 2 km.  More importantly, as a result of the Federal Register publication, a number of deadlines have now been established.

The most crucial dates are as follows:

ALL full-service TV stations - including licensees and permittees, commercials and noncommercials alike - will have to prepare and submit a Status Report (FCC Form 387) to the Commission no later than February 19, 2008. The new Form 387 may be reviewed at the FCC's website. It will also be available through each station's CDBS account.

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Construction deadlines, new reporting requirements imposed

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The FCC has announced that applicants who filed during the recent noncommercial educational (NCE) FM filing window may settle with mutually exclusive (MX) applicants and receive expedited processing of their proposals as long as the settlement agreements and any related technical amendments are filed by January 7, 2008. (Of course, as the Commission's public notice acknowledges, mutually exclusive applicants may settle at any time - not just within this prescribed window - but the FCC has indicated that settlements filed by January 7 will receive expedited processing.)

In order to take advantage of this window opportunity, applicants may resolve technical mutual exclusivity by one of two methods: (a) settlement or (b) technical amendment.

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By Raymond Quianzon

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The FCC has requested comments on a proposal to let some, but not necessarily all, AM directional applicants use moment method computer modeling to demonstrate that their directional antennas perform as authorized.

The proposal was advanced by a coalition of broadcast engineering mavens - broadcasters, manufacturers, consulting engineers - a couple of weeks ago, following several months of meetings and deliberations.  The idea is to reduce the burden, both on AM applicants and on the Commission's processing staff, by eliminating the need to conduct and analyze field strength measurements of directional arrays in order to verify that they're working like they're supposed to.

Historically, the Commission has required directional AM applicants to undertake elaborate, labor-intensive measurements to confirm that their arrays were working properly.  Those measurements were then sent to the Commission, where staff members reviewed them as well.

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Effective May 25 -- this coming Friday -- sellers of analog-only TV must display the following text on signs on or near product displays, and in offers for sale in catalogs, direct mail, websites, and emails:

"CONSUMER ALERT This television receiver has only an analog broadcast tuner and will require a converter box after February 17, 2009, to receive over-the-air broadcasts with an antenna because of the Nation's transition to digital broadcasting. Analog-only TVs should continue to work as before with cable and satellite TV services, gaming consoles, VCRs, DVD players, and similar products. For more information, call the Federal Communications Commission at 1-888-225-5322 (TTY: 1-888-835-5322) or visit the Commission's digital television website at: www.dtv.gov."

Procedural background (this will not be not on the exam): The FCC's original order, released May 3, set an effective date of May 25. That date was superseded by a Federal Register notice on May 10 saying the requirement could not take effect until approved by the Office of Management and Budget. This morning's Federal Register announced that approval and reinstated the May 25 effective date.

The original May 3 order is at this link.

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On May 3, I reported on a new FCC requirement for consumer disclosures on sales of analog-only TV receivers.

That included the FCC-announced effective date of May 25, 2007.

This morning's Federal Register supersedes that report. It says that the rule requires approval by the Office of Management and Budget, and will not take effect until a date to be announced.

Nevertheless, companies affected by the rule are urged to move quickly toward compliance. When OMB does issue its approval, the rule may then take effect with little or no warning.

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The FCC announced today that sellers of analog-only TV must display the following text on signs on or near product displays, and in offers for sale in catalogs, direct mail, websites, and emails:

"CONSUMER ALERT This television receiver has only an analog broadcast tuner and will require a converter box after February 17, 2009, to receive over-the-air broadcasts with an antenna because of the Nation's transition to digital broadcasting. Analog-only TVs should continue to work as before with cable and satellite TV services, gaming consoles, VCRs, DVD players, and similar products. For more information, call the Federal Communications Commission at 1-888-225-5322 (TTY: 1-888-835-5322) or visit the Commission's digital television website at: www.dtv.gov."

The rule takes effect on May 25, 2007.

The order is at this link.

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