Positive Train Control: Putting Spectrum to Use for the Safety of Life

The FCC plays an important, if little known, role in railroad safety.

In the aftermath of this week’s tragic Amtrak train derailment in Philadelphia, the issue of Positive Train Control (PTC) – previously a subject familiar only to relatively few – has burst into the public consciousness. PTC is a technology that likely would have prevented the accident had PTC been functioning in the Philly portion of the Amtrak line. While we here at Fletcher Heald & Hildreth are not railroad lawyers, we do know a lot about PTC, because PTC requires spectrum to function, and the FCC – an arena with which we are very familiar – is the go-to agency when it comes to spectrum. We have been working for a number of years with one of our rail carrier clients to obtain spectrum for implementation of PTC.

PTC systems are designed to monitor train activity, prevent train collisions and worker injuries, and enhance public safety. PTC is a spectrum-based technology: radio devices located onboard a train transmit and receive data to and from radio devices installed along the track and at network operations centers. The components of the system onboard each train automatically monitor the train's speed and location with respect to the area in which the train is authorized to travel. Through this complex flow of real-time information, PTC systems can manage track congestion and improve safety by imposing limits (e.g., speed, location) on trains while they are in motion. PTC is also designed to provide a wide range of additional safety-related functions: for example, it can continuously monitor and report train diagnostics, issue alarms (about, for example, broken rails and incorrect switch alignments), and monitor radio transmissions from “wayside” systems.

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Announcing FCC Boot Camp

Three-day program in San Francisco will feature FHH’s Harry Cole along with other eminent FCC practitioners providing insight into All Things FCC.

Attention, all you Friends of CommLawBlog!

If you’re looking for an excuse to travel to San Francisco in late June, look no further. The American Conference Institute is presenting an “FCC Boot Camp” program there from June 22-24. And CommLawBlog’s own Harry Cole will be among the featured speakers.

The curriculum covers a wide range of topics, from the basics of FCC jurisdiction and the Commission’s role in various regulatory areas to helpful practice tips and even a “Master Class on Net Neutrality, Politics, Policies and Rules”. You can learn about the Commission’s enforcement procedures, equipment authorization process, spectrum policies, interactions with other state and federal regulators, and more. Harry’s presentation will focus in particular on the FCC’s regulation of video services, from traditional broadcasting to cable and satellite. He’ll even take a look at the proposal to redefine MVPD to include Over-the-Top providers. (For a copy of the official brochure with all the details, click here.)

Joining Harry on the faculty will be more than 20 other eminent practitioners ready to provide attendees a strong working knowledge of core FCC competencies. If you’re looking for a good way to immerse yourself in All Things FCC with a top-notch roster of presenters ready to make that immersion as useful (and as painless) as possible, this FCC Boot Camp should be ideal.

And get this: CommLawBlog readers can get a $200 break on the registration. Just click on this link to get to the official registration site and enter your special Priority Service Code (that would be 774L15.S) and your Special Discount Promo Code (that would be FHSPK), and claim your $200 discount! (You can also register by phone at 888-224-2480.)

Beyond that, we’ll be sure that Harry brings along a supply of our much-coveted CommLawBlog sunglasses. He’ll totally hook you up with a pair if you ask.

Police Body Cameras: Kevin Goldberg Takes a Stand, On the Stand

The Swami testifies in D.C.

One of the most hotly debated topics at the state and local levels around the country is that of police body cameras. Should they be used? If so, when should they be turned on and when should recording not occur due to privacy and other concerns? Since recordings made with police body cameras are public records, should they be accessible through state and local freedom of information or open records laws? What about the costs associated with collecting, maintaining, reviewing, redacting and releasing those recordings?

These and other questions are being thrashed out in more than 30 state legislatures and virtually every big city in the country, including the District of Columbia. In addition to moonlighting as the “Swami”, our own Kevin M. Goldberg is the President of the DC Open Government Coalition, a non-profit organization which focuses on improving both public access to government information and the transparency of government operations in D.C. Kevin testified in that capacity on the topic of police body cameras at a public roundtable convened by the D.C. Council’s Committee on the Judiciary on May 7, 2015.

We expect that many, if not most, of our readers are interested in the body camera issue, so we thought we should make Kevin’s written remarks available. You can find them here. There’s also a link to an on-demand stream of the video of the May 7 roundtable here, but head’s up – we couldn’t get it to work. (Because we couldn’t view the official video, we couldn't get a screen grab of Kevin in action, so for our graphic, above, we’re relying on a shot of Kevin on the JumboTron taken during his appearance.)

FHH Plays Host to Local Student Through Shadow Day Program

FHH had the pleasure of participating in Thurgood Marshall Academy’s Shadow Day Program, which provides students from the D.C. Charter School the opportunity to meet with local attorneys and get a sense of what being a lawyer is all about. We were visited by sophomore Christina Price (pictured at the left, sporting her CommLawBlog shades), who spent the day with FHH attorneys, watching us work. It wasn’t all boring; Christina was also treated to a primo viewing spot on the rooftop patio of our building where she could see the Arsenal of Democracy Flyover in honor of the 70th Anniversary of V-E Day. 

Christina is interested in going to law school, but she’s got lots of other interests as well that might win out.

Thank you to Christina for coming to visit, and to the folks at Thurgood Marshall for including us in their great program!

Mitchell Lazarus Says Thanks

[Blogmeister’s Note: Our colleague, collaborator, frequent CommLawBlog contributor and, most importantly, friend, Mitchell Lazarus, has asked us to post the following item. It doesn’t address any of the subjects we usually cover here, but so what? It being all too easy for us to lose sight of our capacity to help one another, we think it’s right to pass along to our readers a reminder of the importance of lending a hand.]

I am writing from a hospital room, hooked up to a machine that delivers multiple chemo drugs into my veins. The dosage is high enough to kill my leukemia cells before they kill me. The problem is, that level of chemo also stops the “stem cells” in my bone marrow from supplying me with fresh blood cells. My blood counts will soon drop to near zero. This puts me into a non-survivable situation.

But I still expect to walk out of here in a few weeks. What will save me is an infusion of stem cells from an anonymous donor, somebody in a database who is a fortuitous ten-for-ten match with my cell type. This person has taken time out of his (or her) life to undergo repeated testing and get injected with medication to step up the production of his stem cells. By now my donor has spent a few hours hooked up to a machine that extracts the surplus stem cells, which will soon be couriered to my bedside – all to save the life of a person whose name he is not allowed to know.

I fervently wish I could tell my donor how much his contribution means to me. It is not likely he reads CommLawBlog. But other donors probably do, and their patients are as deeply thankful to their donors as I am to mine. Here in the hospital, patients talking about their donors almost always tear up in gratitude.

I am lucky; not every patient who needs a matching donor has one. Possibly you could be the donor who saves the life of a total stranger, with no compensation except the inconvenience. Start at this website. There can be no greater gift one human can give to another. To my own donor, whoever and wherever he is: I’ll never be able to pay you back, but I sure wish I could try.

Another Month, Another Spectrum Auction - But This Time, With a Couple of Twists

Coming soon: Innovative auction to dispose of innovative spectrum.

The FCC has announced yet another spectrum auction. Ho-hum, right?

WRONG – this isn’t like any previous auction.

First, there’s the spectrum that’s up for bids. According to the FCC, bidders will be bidding on “newly-discovered” spectrum. It appears that the Commission has had a task force of its best engineers running elaborate tests at the Columbia, Maryland lab. Their quest: any and all spectrum that might have escaped everybody’s attention thus far.

The effort appears to have paid off, in spades, with the first new spectrum unearthed since James Clark Maxwell predicted radio waves in 1867. “It must have been lying there the whole time,” said an FCC engineer who requested confidentiality. “We just happened to look in the right place.”

Sources indicate that the spectrum about to make its debut is being referred to by FCC insiders as the “Bleen Band”, a tongue-in-cheek homage to social commentator George Carlin. The Commission is officially mum (apparently preferring to avoid rampant market speculation and potential legislative or judicial interference). But reports leaking from the Columbia lab say that Bleen Band spectrum has propagation characteristics ideal for a vast range of services, including broadcast, fixed and mobile wireless, radar, Wi-Fi, and those things that unlock your car from across the street. FCC sources say that signals on the Bleen Band “go forever”, “penetrate just about anything”, aren’t susceptible to any known atmospheric conditions, and require very little power.

In the words of one knowledgeable Commission insider, it’s “like El Dorado, the Fountain of Youth, desktop fusion and a perpetual motion machine all rolled into one, with an antenna – and a small antenna at that.” Despite these rave reviews, though, don’t count on any pre-auction guarantees of performance from the FCC. According to more than one Commission rep (all speaking on condition of anonymity), the agency’s usual auction-related disclaimers (“The FCC makes no representations or warranties about the use of this spectrum for particular services, yada yada yada”) will apply, but “just to make the lawyers happy”.

And how better to sell innovative spectrum than with an innovative auction format?

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Now Available: Kevin Goldberg on Music Licensing - The Online Version

Frequent CommLawBlog contributor and copyright guru Kevin Goldberg (that's his smiling face next to the post) presented a 90-minute webinar on “Everything You Wanted (or Needed) to Know About Music Licensing, But Were Afraid to Ask” on March 25. Kevin covered the full landscape of licensing issues for broadcasters and webcasters – his PowerPoint was more than 75 pages long, for crying out loud (but trust us, as Kevin took us all through it, it was highly accessible).

We promised all attendees that we’d be providing a link to the recording of the Swami’s show, and here it is. This will get you the audio and video. Even if you didn’t happen to be one of the lucky attendees, we welcome you to check it out (but you’ll have to register by providing your name and email address).

Also, if you want a copy of the PowerPoint slides, you can access one here. It provides an excellent reference guide for anyone using music for broadcasting or webcasting.

Tomorrow's Broadcast Leaders: Their Future's So Bright, They've Gotta Wear Shades

FHH Profs Montero and Kirkpatrick show up-and-comers the ropes.

Another class of the brightest and the best is working its way through the Broadcast Leadership Training Program, and FHH is there to help. The BLT, of course, is a 10-month Executive MBA-style program created by the National Association of Broadcasters Education Fund (NABEF) to provide rising executives the specific knowledge and skills they’ll need when it comes time for them to assess, buy, own and operate radio and television stations. The BLT provides “a blueprint for talented businesspeople to become a greater part of the industry and increase the diversity of voices available to the public”, according to the BLT website. (Check out this page of the website for information on how to apply for next year’s program; applications are due by May 31, 2015.)

BLT participants don’t have to suffer through dry presentations offered by ivory-tower-cloistered lecturers. Au contraire, they are taught by a wide range of professionals who know what they’re talking about because they’ve experienced it all first hand – including (and here we’re quoting the BLT website) “leading communications attorneys”. So it should not surprise you that the most recent session,on “Closing on the Acquisition of a Broadcast Station”, was led by none other than FHH mavens (and CommLawBlog contributors) Frank Montero and Dan Kirkpatrick. Frank and Dan took their tutees through practical issues they’re likely to confront, including preparing closing documents, obtaining necessary consents, getting all financing in order, and the like.

This year’s class includes: Anthony Arbucias, Graham “Skip” Dillard, Manny Fantis, Jacqué Freeman, Marlon George, Dustin Hall, Kelly Landeen, Sarah Miles, Brian Paul, Erica Pefferman, Claudia Puig, Mary Rogers, Deborah Salons, Ryanne Saucier, Scott Schurz, Matt Smith and Robert Yanez. They’re shown in the photo below, along with Michelle Duke (of the NABEF), DuJuan McCoy (an NAB Board Member and a BLT Trustee and alum), and Frank and Dan. That’s Frank on the right, giving the thumbs-up. But you don’t need his imprimatur to know that you’re dealing with the broadcast industry’s next generation of up-and-comers. You can tell that because they’re all sporting their CommLawBlog shades. (Don’t you wish you had your pair?)

FHH's Frank Montero Interviews Commissioner Clyburn

Deep in the heart of Texas, Francisco Montero (we call him “Frank”), one of Fletcher Heald’s co-managing members, recently had the honor of interviewing Commissioner Mignon Clyburn at a joint session of the Radio Ink Hispanic Radio and Sports Radio Conferences. (You can read about the interview here.) Their tête-à-tête was just part of the festivities in Dallas, which included tours of the facilities of Dallas area Stations KXAS(TV)/KXTX(TV) and KUVN-TV/ KSTR-TV/ KUVN-CA. Commissioner Clyburn had expressed an interest in visiting a station while she was in Dallas and the gracious hosts of the tours, NBC/Telemundo and Univision, were more than happy to give the Commissioner an up-close-and-personal look at the inner workings of a couple of major market broadcast operations. Many thanks to NBC/Telemundo and Univision for their hospitality, and a big shout-out, too, to Oscar Rodriguez of the Texas Association of Broadcasters, who was essential to making it happen.

David Janet Joins FHH

Wilkommen, Bienvenu, Welcome!

Fletcher, Heald & Hildreth is pleased to announce that David M. Janet has joined us as a member. David has more than two decades of practice experience in a variety of technology- and communications-related areas. His specialty is middle-market and startup companies in the software, data mining, digital media, government contracting, wireless and Internet content-provider, wireless application services, medical device distribution, and intraoperative monitoring industries and market spaces.

David received his law degree – with high honors – from Duke. His academic achievement there shouldn’t surprise anybody because his B.A. from William and Mary came summa cum laude, with a side of Phi Beta Kappa. Don’t be fooled into thinking that he spent all his time in the library, though; he was also an NCAA Division I wrestler during all four years with the Tribe. More recently, he has taken up guitar playing (and guitar collecting).

David can be reached at 703-812-0453 or djanet@fhhlaw.com.

FHH Lawyer Gets Ink, Yet Again!

Demonstrating that “mostly retired” clearly doesn’t mean “completely inactive”, our colleague Mitchell Lazarus has published yet another article in IEEE Spectrum magazine. (Regular readers will recall that articles by Mitchell have graced the pages of IEEE Spectrum several times over the last few years.) Called “Radar Everywhere,” Mitchell’s latest opus addresses the accelerating proliferation of radar uses and the need for regulators to keep up with that proliferation. IEEE, of course, is a widely respected association of electrical engineers. IEEE Spectrum is its flagship magazine (and website), keeping the association’s more than 400,000 members informed about major trends and developments in technology, engineering, and science. If you’re not already an IEEE Spectrum reader, you can find Mitchell’s article here.

Five in a Row! FHH Again Tops in Repping Media Deals

According to SNL Kagan, recognized as one of the preeminent sources of financial analysis in the media business, in 2014 Fletcher, Heald and Hildreth served as legal adviser in more media/entertainment/new media transactions than any other law firm – by a long shot again. Hey, isn’t this the same post we put up last year … and the year before … and the year before that … AND the year before that? Yes, indeed. And again, the total number of transactions that brought FHH back to the top of the charts for the fifth year in a row – 139 (a solid 24% uptick from 2013’s 112) – was more than twice the number of the First Runner Up.

Through the worst of some very rugged economic times, our clients continued to thrive and remain active on the transactions front. And now, as the dark clouds of the Great Recession seem to be parting at last, our clients have continued to call on us to provide guidance and counsel in structuring their deals and navigating them through the regulatory process.

As we have in past years, we congratulate our clients for their successes, we thank them for the confidence they have placed in us, and we look forward to providing the same quality representation to clients, old and new, that we have been providing for more than 75 years.

FHH Internet Counsel Kathy Kleiman Featured in Preview of 2015 ICANN Issues

Our readers are (or should be) familiar with FHH’s Internet Counsel, Kathy Kleiman, who has provided considerable insight into the sometimes arcane world of the Internet Corporation for Assigned Names and Numbers (ICANN) over the last couple of years. We view her as an Internet maven, and now we have further evidence of her maven-ness.

Bloomberg BNA, the well-known and highly respected source of legal, tax, regulatory and business information for professionals, publishes the Electronic Commerce & Law Report (ECLR), a useful resource for those who want to keep up with developments in the e-commerce marketplace. Recently ECLR Legal Editor Joseph Wright offered readers his “Top 15 Items to Watch in ICANN in 2015”. Bloomberg BNA has kindly permitted us to provide readers a link to that article. Why? Not only because of the article’s detailed preview of important issues, but also because Kathy is quoted throughout the piece. They even gave her a pull-quote:

(Bloomberg BNA requested that we provide the following acknowledgement, and we’re of course happy to oblige: “Reproduced with permission from Electronic Commerce & Law Report, 20 ECLR 5 (Jan. 7, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com”.)

We here in the CommLawBlog bunker are pleased about this recognition of the talent in our midst. We invite readers seeking guidance in ICANN matters to contact her to see if they may be able to take advantage of her expertise.

Live in Vegas! - FHH Net Neutrality Guru Paul Feldman Appearing at CES

If you’re planning to hit the International Consumer Electronics Show (CES) in Las Vegas next week, don’t miss FHH’s own Paul Feldman. He’ll be moderating a panel – “Net Neutrality:  Where Are We Now?” – on Monday, January 5. Time: 11:30 a.m. Place: the Las Vegas Convention Center, North Hall Upper Level, Room N256.

The panel is part of the Team Lightbulb Broadband Conference at CES. Other participants will include: Chris Riley, Senior Policy Engineer at Mozilla; Hank Hultquist, Vice President – Federal Regulatory at AT&T; and Barbara Esbin, a partner at Cinnamon Mueller and counsel for the American Cable Association.  Look for discussion about the current status of FCC policy as well as network management/business issues such as paid prioritization, consumer prioritization and peering. The format will include opportunities for each panelist to pose a question to another panelist. Expect lively exchanges among these industry experts.

Want to know more? Learn more about the Broadband Conference and register to attend at this link.

And when you get there, be sure to stop by and say hello to Paul!

Mitchell Lazarus to Retire - Mostly

Mitch came to the law the long way around and relatively late in life.

Mitchell Lazarus, FHH veteran and CommLawBlog regular, has announced he will retire at the end of this year. But not completely. Mitch will stay on the FHH letterhead as Of Counsel, will keep an office in our suite, and can still be reached through his FHH phone number and email address. We will, of course, also keep his suite in the CommLawBlog bunker ready for him.

IMPORTANT: Mitch’s active clients should have received an email about this transition. If you did not, please contact him at lazarus@fhhlaw.com.

Mitch came to the law the long way around and relatively late in life. Holding advanced degrees from M.I.T. and Georgetown University in three different fields, he has earned his living as an electrical engineer, psychology professor, education reformer, educational TV developer, free-lance writer, and (until now) telecommunications lawyer. His legal specialty, in addition to fixed microwave communications, has been securing regulatory approvals for new technologies. Most of this work involves behind-the-scenes industrial and commercial devices, but CommLawBlog readers will be familiar with at least two of his successes: contemporary Wi-Fi and the “millimeter wave” body scanners used at U.S. airports.

Mitch is a frequent speaker on issues at the intersection of law and engineering. He has published several articles in the widely-read IEEE Spectrum magazine, and authored the widely-ignored “Government Warning” on U.S. alcohol beverage labeling. In his off hours, he is finishing a book about the Manhattan Project and tells us he has another book in the pipeline.

Mitch has promised to continue to post items of interest here, and we intend to hold him to that. We here in the bunker are incredibly grateful to Mitch for his central role in getting CommLawBlog off the drawing board and onto your screen, and for making it what it has become. We hope our readers are equally grateful. They have reason to be.

And with that, a final Blogmeister’s note to Mitch as he embarks on his next adventure: Godspeed.

Upcoming FREE Webinar: Kathy Kleiman, Kevin Goldberg and Jon Markman on the Arrival of the New gTLDs

On the agenda: How to take advantage of the new Top Level Domains now coming available, and how to identify and avoid potential problems

As we have advised our readers repeatedly, new generic Top Level Domains are here, NOW, and more are coming online every day. And NOW is the time to learn about them: what they are, how to get them, how you can use them.

If you’re looking for an introduction into the brave new world of new gTLDs, here’s your chance. Internet gurus Kathy Kleiman, Kevin Goldberg and Jon Markman will be presenting a free webinar on Thursday, November 20, at 3:00 p.m. (ET) in which they plan to address such questions as:

  • What are new “Top Level Domains” and how will they change the Internet?
  • How can new gTLDs help your business stand out and attract customers?
  • What possible risks do you face from new gTLDs?
  • How can you protect your trademarks and existing domain names in the new gTLD environment?
  • What is the process (including likely costs) of taking advantage of new gTLDs?

The webinar is a production of Team Lightbulb. You can register here. Did we mention that it's FREE?

FCBA Charity Auction: Be There or Be Square!

The 25th Annual FCBA Charity Auction (a joint production of the FCBA’s Young Lawyers Committee and the FCBA Foundation) is happening on Thursday, November 7, 2014, from 6:30-10:00 p.m. in the Sphinx Ballroom at the Almas Temple, 1315 K Street, N.W., Washington.When you go – and you WILL go (because Davina wants you to) – you’ll get a prize book to guide you through the evening. Since it’s going to be unbelievably loud and crowded when you get there, and since they’re giving away two drinks for free (not to mention free food), and since it will be important to see and be seen, and since there are so many prizes that the book is 35 single-space pages long, you’re going to have a tough time navigating the prize book on the fly.

No problem. Here’s an advance copy to peruse at your leisure through the day leading up to the Big Event. (It looks enough like that contract from counsel for the other side of that big deal you’re working on that you can keep it up on your screen all day long and none of your colleagues will know.)

And you’ll probably need the whole day to digest the cornucopia of bitchin’ stuff available to the highest bidder. We recommend that you get started early.

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Bob Winteringham Joins FHH

Wilkommen, Bienvenu, Welcome!

Fletcher, Heald & Hildreth is pleased to announce that Bob Winteringham has joined us as Of Counsel. A former Deputy General Counsel at the Corporation for Public Broadcasting, Bob will focus on assisting clients in the public broadcasting industry. He’ll be advising stations and other CPB grant recipients with CPB grant compliance issues as well as other areas of public broadcasting decision-making.

Bob is a 15+ year veteran of CPB’s Office of General Counsel (and CPB’s Deputy GC from 2005-2013). He has also collaborated with CPB financial reporting compliance professionals through the Public Media Consulting Group. At FHH Bob will be providing, among other services: guidance with respect to CPB Community Service Grant agreements, including on-site compliance reviews and compliance-oriented strategic advice on policy formulation, policy updates, best practices, and documentation development; assistance to CPB grantees facing a CPB OIG audit; and facilitation of public broadcasting meetings or training seminars. 

Bob got his J.D. (cum laude) from Indiana University – Bloomington (Go Big Red!), where he was the Articles Editor for the Federal Communications Law Journal. Before that he received his undergraduate degree (with high honors) from Michigan (Go Blue!). During college, he worked as a riverboat captain at an amusement park (“Here at Cedar Point, we have two docks for our boats, one in front and one in back.  You could say we have an interesting … paradox!”).

On the fun side, Bob is a cinema devotee who has seen every movie nominated for a Best Picture Oscar® since 1998.

Bob can be reached at winteringham@fhhlaw.com or by phone at 703-812-0417.

Stevie Wonder - Live at the Portals!

High on the superstar's wish list: Increased video description services.

Yes, you heard it right! Stevie Wonder, the legendary songwriter and recording artist, made the rounds, live and in person, at the FCC recently. He met with the Chairman and the other four Commissioners to advocate for greater availability of audio description services to provide better access for the blind to television programming. Mr. Wonder noted that he can go to his choice of movies in many theaters today and get a headset that delivers video description; but when the same movies are shown on television, the video description is absent. Captioned television for viewers with impaired hearing has made great strides over the years, and it’s time for video description to make similar progress.

Mr. Wonder believes that the availability of video description can be increased by taking advantage of screenplay information already created for most staged productions. The process of turning that information into audio description can be automated. Prominent personalities, with Mr. Wonder himself taking the lead, could provide their voices, so that machines could read descriptions of the action on the screen and translate them into the listener’s choice of a celebrity voice. Video description might even be downloaded into a smartphone and have the smartphone “listen” to the audio dialog and synchronize the video description to the audio.

If the process can be automated sufficiently, the hope is to drive production costs down to minimal levels; and downloading video description over the Internet would eliminate the need to use data capacity in a TV or cable channel. Mr. Wonder hopes that modern technology can make video description so practical and cost-effective that the video industry will voluntarily embrace it, without regulatory compulsion, in much less time than it has taken for captioning to reach today’s widespread distribution.

FHH’s Peter Tannenwald escorted Mr. Wonder during his visit to the FCC. It was a memorable day. After the FCC sessions, Mr. Wonder was kind enough to visit our offices, where cameras clicked, and he even serenaded our Firm Administrator. He invited a few of us to join his entourage for a vegan dinner, reported in the Washington Post.

Peter has worked with Mr. Wonder for almost 35 years. He prepared the initial petition that led the FCC to adopt captioning rules some 40 years ago, helped establish the National Captioning Institute, has worked on increasing cellphone compatibility with hearing aids, and now looks forward to helping Mr. Wonder realize his dream of making television programming more accessible to the blind.

Upcoming Webinar: "Cable TV Must-Carry & Retransmission Consent: Negotiating Agreements & Enforcing Rights"

Even though October 1 – and the triennial election between must-carry and retransmission consent that had to be made by then – may be fading in our rear views, TV licensees and cable operators still have much to think about. Tying down the details of the retrans deal is an important project for anyone who chose that route. And for those on the must-carry side, there are a slew of practical considerations about which to be aware: for example, TV stations should be up on how must-carry elections can be enforced; and both cable operators and TV stations should be aware of the steps available to insure that must-carry claims are indeed valid and enforceable. On that latter score, there are a number of factors that can de-rail seemingly straightforward must-carry demands.

In other words, just because the must-carry/retrans election has been made, don’t think that you can simply stick this in the finito file and move on.

On October 23, 2014 at 1:00 p.m. (ET), FHH cable gurus Dan Kirkpatrick and Paul Feldman will present a FREE webinar entitled “Cable TV Must-Carry & Retransmission Consent: Negotiating Agreements & Enforcing Rights”. This will be a follow-up to their September webinar on the must-carry/retrans election process. It will address a long list of post-election issues that both TV folks and cable folks should be focused on.

You can sign up for the webinar here. It’s a Team Lightbulb production and it’s free.

Laura Stefani Joins FHH

Wilkommen, Bienvenue, Welcome!

Fletcher, Heald & Hildreth is pleased to announce that Laura Stefani has joined us as Of Counsel. She’ll be focusing on emerging technologies, wireless, broadband, and RF equipment issues. Laura is no stranger there: She has more than a decade of experience (most recently with another Washington, D.C.  telecom law firm), having represented clients before the FCC, NTIA and other federal agencies with respect to wide range of regulatory matters. Think spectrum allocation and sharing, equipment authorizations, enforcement issues, to name a few.

Laura is a graduate of the George Washington University School of Law.  She got her BA in Economics (magna cum laude, thank you very much) from Lawrence University (home of the Lawrence Vikings). Her senior thesis focused on public policy agenda setting.

Laura lives in Washington, D.C. with her son and an escape-artist beagle named Polly. When she’s not in the office, she generally can be found hiking, biking, running, kayaking, or engaging in any other activity that keeps her outside.

Laura can be reached at stefani@fhhlaw.com or by phone at 703-812-0450.

The Tower Family Foundation: A Helping Hand to the Tower Worker Community

We down here in the CommLawBlog bunker want to shine a spotlight – make that a high intensity white strobe – on the Tower Family Foundation. Just now getting off the ground (full official name: the Tower Industry Family Support Charitable Foundation), it provides financial assistance to family members of tower workers who are severely injured, permanently disabled, or killed while doing their job. The Foundation is providing important support for workers who are essential to any communications operation whose business depends on equipment hanging off the side (or stuck on top) of a tower.

No, you probably don’t have any tower workers on your payroll. But you’ll need one when the storm blows your stick over, or you want to swap out your old antenna for a spiffy new model, or you’re trying to change transmitter sites. Tower workers are like surgeons: you may not need them often, but when you do, you generally need them (a) badly and (b) right away.

The trouble is that, unlike surgeons who work in the capacious climate-controlled comfort of an OR populated with lots of helping hands and cool whiz-bang technology, tower workers do their thing in lonely confined quarters hundreds of feet in the air, exposed to the elements; they work without much more than a few tools that can fit in a small bag. (Any skeptics need only check out this video – or others like it – to get a sense of working conditions at the top of a tower.) It is difficult and dangerous work. How dangerous? As we reported last February, in 2013 13 tower workers died in work-related accidents; four had died this year before February was half over.

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Now Available: Kevin and Harry's Excellent "Whither Aereo" Webinar

If you missed the webinar Kevin Goldberg and Harry Cole presented on the latest twists and turns in the Aereo case (and the prospects for more twists and turns to come), worry not: it, like pretty much everything else, is on the Internet. The folks at Team Lightbulb, who arranged and promoted the webinar, have posted a recording of the show here – all audio and video included. It’s free.

Now Available: Dan and Paul's Excellent Must-Carry Webinar

If you missed the webinar Dan Kirkpatrick and Paul Feldman presented on the basics of the must-carry/retransmission consent process, never fear: you can catch it in re-runs. We’ve posted a recording of the show here – all audio and video included. It’s free.

Look for a follow-up webinar exploring further details of the must-carry election process in coming months.

Upcoming Webinar: Whither Aereo? (or should that be "Wither Aereo?")

As we all know, the Supreme Court issued its decision in the Aereo case two months ago – but that wasn’t the end of the matter by any means. The Court’s decision left a number of questions unanswered. And, as has been the case since it burst onto the scene, Aereo is nothing if not creative, which means that, despite its loss in the Supremes, it has not exited the scene by a long shot.

While maybe you took the summer off, our Aereo watchers, Kevin Goldberg and Harry Cole, did not. They’ve been keeping track of the fall-out following the Supreme Court’s decision, and they’re ready to bring you all up to date in a free one-hour webinar on September 10 at 1:00 p.m. (ET).

You can sign up for the webinar here. It’s a Team Lightbulb production.

Upcoming Webinar: What You Need to Know About The Must-Carry/Retrans Consent Election Process

Attention TV licensees: MVPD carriage elections must be formalized by October 1 for carriage arrangements through 2017. Have YOU tied everything down yet?

With Summer, 2014 on the wane and Labor Day just days away, full-service TV licensees probably should already have a clear idea of the steps they’ll be taking to tie down cable and satellite carriage for the next three-year election term. But we’re guessing that some of you may still be a bit behind the curve.

Never fear.

On September 9, 2014 at 2:30 p.m. (ET), Fletcher, Heald will be presenting a free webinar on the ins and out of the must-carry/retransmission consent process.

The next three-year carriage term begins on January 1, 2015 – which means that must-carry/retrans elections must be formalized by October 1, 2014, barely a month from now. If you’re eligible to make an election but you haven’t wrapped things up already, this webinar is for you.

MVPD carriage is critically important for television broadcasters. It’s crucial that TV folks know what their rights are, including the upsides and the downsides of the available alternatives. And once you’ve figured out your target, you’ve got to know what steps you need to take and when (and how) you need to take them to insure that you achieve the results you’re looking for.

The webinar will be presented by FHH cable gurus Dan Kirkpatrick and Paul Feldman. They’ll  explain: the rights and obligations of broadcasters and cable and satellite operators under the FCC’s rules; what has changed since the last round of must-carry/retransmission consent elections; potential pitfalls and hidden concerns regarding carriage; and what the future of retrans may involve.

The webinar is free. You can register for it by clicking on the Register Now button below.

Mitchell Lazarus, Back on the Tubes

Our colleague down here in the CommLawBlog bunker, Mitchell Lazarus, has popped up on the Internet, again. This time it’s in an interview on the RF Venue site. RF Venue is a company that produces a variety of accessories designed to make wireless audio systems work better, so it makes sense that they would be interested in interviewing Prof. Lazarus. He has, as they correctly note, “been instrumental in the regulatory approval of many essential wireless technologies, as well as the wireless audio industry’s evolution from an unregulated enigma to a recognized and important part of the wireless ecosystem.” Adding to the overall credibility of the folks at RF Venue is the fact that they also observe – without apparent irony – that Mitchell “blogs for the always fascinating CommLawBlog.” We’ll take that as a compliment and return the favor by suggesting that our readers check out Mitchell’s interview. Feel free to tell them we sent you.

What a Drag It Is . . .

Nearly 50 years I sat in my dorm room at Smith College (yes, Smith – it’s a long story), writing history papers while listening to Let It Bleed cranked up to 11 through my headphones.

Those were the days.

So it was more than a little sobering to read the first paragraph of a recent D.C. Circuit opinion. Written by Judge Janice Rogers Brown, the opinion in Stop This Insanity, Inc. v. FEC begins:

What does it say when your enfant terrible role model – Mr. Let’s Spend the Night Together, Mr. Sympathy for the Devil, Mr. “Let’s hire Hell’s Angels to be our security guards for $500 worth of beer” – has become source material for the D.C. Circuit, and “iconic” source material, at that?

For sure, it says that, as Mick knew all along, time was on his side.

For the rest of us, it says that getting old is . . . well, to borrow another Mick-ism, it’s a bitch.

But let’s put our hands together for Judge Brown. By dipping into the Stones songbook for a right-on reference that is immediately accessible, she demonstrated that effective legal writing does not require arcane Latin phrases or erudite polysyllables to get the point across. To the contrary, sometimes you need look no farther than your vinyl collection to come up with a righteous, and comprehensible, turn of phrase.

So here’s to you, Your Honor – you may not have blown our noses, but for sure, you blew our minds.

Performance Royalties: The State of Play

[Blogmeister’s Note: The following post by FHH’s Frank Montero first appeared in Radio Ink Magazine. Our good friends at Radio Ink have given us permission to reprint Frank’s piece here, for which we thank them.]

There is much afoot these days in the world of copyrights and performance rights and royalties. Any radio station owner knows about the license fees collected by ASCAP, BMI, and SESAC, which pay royalties to composers and publishers. Less familiar are royalties collected by performers and the recording industry. For musical recordings, radio stations pay SoundExchange when streaming music over the Internet, but not for over-the-air broadcasts. The logic has been that the recording industry already reaps a huge benefit from having its records played over the air. In fact, traditionally the money stream has flowed in the opposite direction, with radio stations, DJs, and PDs being paid to play recordings on the air. There’s even a name for it: payola.

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Upcoming Webinar: Paul Feldman on Net Neutrality

On the agenda: The implications of the FCC’s Open Internet decision

Few issues in the recent past have attracted as much attention as net neutrality. Everybody’s got something to say about it: industry representatives, public interest advocates, pundits on all sides of the political spectrum, even late night humor shows.

But how many of them have actually read the FCC’s decision and thought through its obvious, and not so obvious, implications?

FHH telecom guru Paul Feldman has, and he’s set to share his thoughts in a FREE webinar on Thursday, June 19, 2015 at 1:00 p.m. (ET).

Join Paul as he analyzes the current state of net neutrality and the prospects for further developments – at the FCC, in the courts, and in the real world.

This is a production of Team Lightbulb. You can register here.

Lawyer Responds to Amateur Radio

An FHH attorney explains why he sometimes works in opposition to ARRL and individual amateurs.

[Blogmeister’s Note: A post last year by our colleague, Mitchell Lazarus, has attracted considerable recent comment from folks sympathetic to amateur radio. To help further dialog among differing points of view, we present Mitchell’s response. The views here are, of course, Mitchell’s own, not necessarily shared by other FHH lawyers or clients of the firm.]

A recent Reddit posting on an amateur radio “subreddit” called me a “lawyer hostile to amateur radio.” Other comments directed both to my blog piece linked on Reddit and to other of my blog postings take a similar view (or worse). So have some amateur websites over the years.

My response: the charge of “hostility” is unwarranted and contrary to the facts.

I have great respect for the work of amateurs, particularly in emergency communications and in advancing radio technology over the decades. I have enjoyed long friendships with amateur licensees, including (I hope) some reading this post. I have blogged in support of amateur positions.

But, yes, I have crossed swords with some amateurs.

Part of my job involves seeking FCC approval for new radio technologies. The process can include proposing a frequency band for a new kind of device, and then working with the manufacturer to minimize the risk of interference to incumbents in the band. This is not only good spectrum citizenship, but it also recognizes that the FCC will disallow a technology it thinks will cause undue interference.

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Aereo in the Supremes: A Post Mortem Post

So the storm that had been brewing for some months – the long-impending Aereo argument in the Supreme Court – has now come and gone, and we are left to sift through what remains to try to figure out what’s next.

We are pleased to report that, as planned, our intrepid reporters on the Aereo beat, Kevin Goldberg and Harry Cole, attended the argument (nearly front-row seats, thank you very much) and were able to provide an overview of the festivities on CommLawBlog Live! less than three hours after the gavel came down in the courtroom. (That’s just a metaphor – Chief Justice Roberts did not appear to wield an actual gavel.) For those of you who missed it, you can catch a recording of the audio portion here, although you’ll miss the video of Kevin and Harry – which is, of course, the price you pay for not signing up for the live presentation.

Several highlights, in no apparent order:

  • The Supreme Court’s head was in the clouds . . . literally. Many of their questions centered on how cloud computing might be affected by any decision in this case.
  • At least four justices observed that Aereo looks just like a cable system, and at least a couple reflected an awareness that Aereo’s design was intended to allow it to avoid copyright obligations – but it’s not clear that that alone will convince them to find for the broadcasters.
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Reminder: Live Webinar Review of Aereo Oral Argument - 4/22/14

There’s nothing like a Supreme Court argument to get the Main Stream Media’s attention. With tomorrow’s argument in the Aereo case nearly here, it seems that all the MSM (well, at least the Washington Post, the New York Times, the Boston Globe, CNET, PBS, among many others) are suddenly attuned to the story that we here at CommLawBlog have been all over for more than two years. (For a collection of our Aereo pieces, click here.)

As we reported last week, our Aereo beat bloggers Kevin Goldberg and Harry Cole are planning to emerge from the CommLawBlog bunker for a quick run over to the Supreme Court to take in the show. Then they’re going to hustle back for a live online discussion and analysis of the arguments at 3:00 p.m. that afternoon (Tuesday, April 22, 2014).

Why wait for the nightly news (or the next day’s newspaper) to find out what you’d probably like to know sooner? Space is still available if you want to hear Kevin and Harry lay it out.And it's FREE. Just click on the button below and sign yourself up.


Coming Soon: CommLawBlog Live!

A chance for you to hear directly from CommLawBlog contributors and friends.

CommLawBlog is pleased to announce the debut of a new feature: CommLawBlog Live!

From time to time, we will present our bloggers, and maybe even some outside guests, discussing communications law issues in a live online format. The kick-off show is set for Tuesday, April 22, at 3:00 p.m. – it will feature Kevin “The Swami” Goldberg and Harry “Blogmeister” Cole sharing their observations about the Aereo oral argument in the Supreme Court (which both will be attending earlier that day). Which Justices asked what questions? How did counsel respond? What does it all mean for broadcasters, MVPD’s, copyright holders, viewers, Aereo? And who knows what else?

Kevin and Harry, both veteran Supreme Court watchers, have been all over the Aereo saga for two years. If you like reading their posts on CommLawBlog.com, we expect you’ll like hearing them live and on-screen.

We’ll be using our usual webinar process, but don’t expect this to be like other webinars you may have attended. PowerPoints? Probably not. Off-the-cuff comments, casual banter, the occasional pointed critique? Count on it. Fun? We sure hope so. Keen insight? You’ll have to be the judge.

The April 22 CommLawBlog Live! test drive will be a complement to the more traditional webinar presented by Kevin and Harry as an Aereo primer in advance of the Supreme Court argument. If you missed that session, you can catch the recorded version by clicking on this link.

Registration for the first CommLawBlog Live! is now open – just click on the button below. Registration is first-come, first-served. Space is limited, so register sooner rather than later. 

CommLawBlog - On the Air!

Blogmeister Harry Cole makes it to the big time with an interview on NPR.

CommLawBlog’s own Harry Cole has hit the NPR airwaves, expounding on the advertising of marijuana in places where the Killer Weed can be legally sold. We’re not saying Harry’s prior stint on the Howard Stern Show adds to his expertise on the topic, but it doubtless contributes to his mellifluous delivery. Hear him for yourself on the NPR website, as he explains what the marijuana munchies have to do with broadcast law.

Incentive Auction Plan B: Government-Subsidized Cable?

Public notices suggest apparent redirection of auction funds to provide universal cable service.

To the bafflement of many, the FCC has consolidated its Incentive Auction and Open Internet proceedings. The public notice announcing that move sheds no light on exactly what the Commission might have in mind – the only reason given is that the FCC wants to “streamline consideration of issues common to both dockets”. Interestingly, it also mentions (in a footnote, maybe because it figures that nobody reads the footnotes anyway) that the soon-to-be-incoming Comcast-Time Warner Cable merger will also get channeled into the Grand Unified Docket.

Interests common to both dockets? What could those be? And what’s the Comcast merger got to do with anything?

Thanks to our old friend, the hilariously-named Paperwork Reduction Act (PRA), we have an idea.

The PRA, of course, requires the FCC to run new “information collections” past the Office of Management and Budget. And PRA requests have to be published in the Federal Register, where they seem to be largely ignored by everybody but us. (Our motto: We read them because we know you won’t.)

And what should appear in this morning’s Federal Register? A PRA notice indicating that the Commission is contemplating reallocation of at least some of the $1.75 billion TV Broadcaster Relocation Fund to a program that would provide universal cable TV service to everybody in the U.S. (The PRA notice describes, very generally, two questionnaires the FCC plans to send out – one to all U.S. households to determine who’s got cable and who doesn’t, and one to all U.S. cable providers, to get an idea of subscription prices.)

Is this a great country or what?

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Upcoming Webinar: Paul Feldman on the IP Transition Trials

On the agenda: The FCC’s invitation for IP experimentation – how it will work, who stands to gain or lose, what it all means

No doubt about it: the transition from 20th telephone technology to 21st Century digital-based IP telephony is a game-changing development likely to affect service providers, equipment vendors, device manufacturers and, of course, the consuming public. As reported here by FHH telecom guru Paul Feldman, the FCC has invited telephone service providers to undertake experiments to identify and test the effects of the IP transition across the board.

If you’re looking for insight into the myriad questions arising from the FCC’s invitation to experimentation, Paul will be participating in a webinar on the IP transition order on Friday, February 28, 2014 at 1:00 p.m. (ET). Paul and fellow panelists Sam Harlan, VP-Engineering at CHR Solutions, and Ken Pyle, Managing Editor of Viodi View, will address a wide range of transition-related issues, including:

  • ŸWhat are some of the larger short-term and long-term implications of the order?
  • What companies may propose experiments? Are non-traditional carriers likely to try any pilot projects?
  • How will test results be fed back into something that is more permanent?
  • What are the potential dangers and opportunities for small carriers and vendors?
  • Who might be the winners and losers?

Best of all, the webinar, which is a production of Team Lightbulb, is FREE! You can register here.

For Fourth Year in a Row, FHH Tops in Media Deals

Another year, another Number One rating. According to SNL Kagan, recognized as one of the preeminent sources of financial analysis in the media business, in 2013 Fletcher, Heald and Hildreth advised in more media/entertainment/new media transactions than any other law firm – by a long shot. Hey, isn’t this the same post we put up last year . . . and the year before . . . and the year before that? You betcha. And while the total number of transactions that got FHH to the top of the charts this year was “only” 112 – down a couple dozen or so from last year – that was still nearly twice the number of the First Runner Up.

This year did show something different: in the communications deals category, we were also tops in the number of deals on which we advised. (That’s up from Number Seven last year.)

Through the worst of some very rugged economic times, our clients continued to thrive and remain active on the transactions front. And they have continued to call on us to provide guidance and counsel in structuring their deals and navigating them through the regulatory process.

As we have in past years, we congratulate our clients for their successes, we thank them for the confidence they have placed in us, and we look forward to providing the same quality representation to clients, old and new, that we have been providing for more than 75 years.

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.

Movin' On Up To The East Side (Reprise)

PMCM completes first of two cross-country TV moves.

In June, 2009, we reported on an ambitious – some thought hare-brained (or worse) – effort by PMCM TV, LLC to relocate two television stations from Ely, Nevada and Jackson, Wyoming to Middletown Township, New Jersey and Wilmington, Delaware, respectively.

We are pleased to announce that Phase One of that project has been completed. As you can see by clicking on the video below, Station KJWP, Channel 2, Wilmington, Delaware, has now signed on the air:

Delaware now has its first operational commercial VHF TV station since the 1950s. In fact, the last time Delawarians saw a commercial VHF station licensed to their state, some of the programs now showing on MeTV were first run features. (The station is an affiliate of the popular Me-TV network -- “Me-TV” stands for Memorable Television -- featuring classic shows from the ’50s through the ’80s.) PMCM is in the process of developing locally-produced nonentertainment programming to provide Wilmington and the rest of the station's service area with the benefits of a local station.

Consistent with the unusual nature of this project from the get-go, KJWP has retained its distinctive “K”-prefix call sign even though it's now east of the Mississippi.

Construction of KJWP was completed in just five months: the construction permit authorizing the long-distance move was granted on June 19, 2013, and the switch turning on program test operation in Wilmington was thrown on November 18. Credit for that impressive accomplishment goes to PMCM principal Robert McAllan (seen in the video, appropriately enough, flipping the switch), who was in charge of all phases of the move. While some additional work still needs to be completed here and there, Bob, a long-time broadcaster, has managed to pull off a near-miracle. (His work isn’t over, though – next stop, Middletown Township!)

Fletcher Heald is proud to have played a role in PMCM’s effort from Day One. Past performance is, of course, not a guarantee of future results – particularly here, where the unique circumstances of PMCM’s feat are not likely to occur again. But we like to think that we are entitled to some props on the lawyering side for helping PMCM recognize and take advantage of an extraordinary opportunity.

Upcoming Appearance: Mitchell Lazarus on Spectrum Pollution

FHH maven to speak at Silicon Flatirons conference in Boulder

If you’re planning to be in Boulder, Colorado on November 14, you can catch our colleague (and frequent CommLawBlog contributor) Mitchell Lazarus, who will be appearing at a conference on spectrum pollution.  The affair is sponsored by the Silicon Flatirons Center.  It will be held in the Wolf Law Building at the Colorado Law School.  (Not going to be in Colorado?  No problem – you can catch the proceedings through a live feed accessible from this site.)

The conference’s formal title is “Radio Spectrum Pollution: Facing the Challenge of a Threatened Resource”.  It will consist of four separate panels and a keynote presentation (by Julius Knapp, the Chief of the FCC’s Office of Engineering and Technology).  The participants will examine the extent of, and trends in, radio noise pollution and will suggest how the associated policies and regulations might need to be adjusted to reflect changes in radio noise levels. 

Mitchell will be on Panel 4, titled “Enforcement & Policy Initiatives”.  Scheduled start time: 5:05 p.m. MT. Among the recommended readings for attendees is Mitchell’s recent post about an FCC enforcement action triggered by a light bulb, but you’ve probably already read it.

The Silicon Flatirons Center is the Center for Law, Technology, and Entrepreneurship at the University of Colorado.

Davina Says: "Get to the Auction and Start Bidding!"

When Ms. Sashkin says “Jump”, we say “How high?” – and you should, too.

It’s that time of year again (actually, we’re just a bit late, but read on and you’ll see that, to make up for our tardiness, we’re making an offer you probably won’t be able to refuse - the photo at the left is a hint). The FCBA’s 2013 Charity Auction is tomorrow, November 7, as our colleague Davina Sashkin reminded us yesterday. If you haven’t made plans to be there, you ought to – and be prepared to be dazzled by the vast array of way cool stuff you’ll be able to bid on.

How much way cool stuff? This year’s prize book includes 53 (count ’em, 53!) pages of nothing but cool. (Here's a link to a draft of the book that was slipped to us.)

Hungry? You’ve got your choice of a couple of dozen of restaurant options (including the Inn at Little Washington, Volt, Rasika , among others). Just looking for dessert? There are cake, cheesecake, cupcake opportunities (or you can roll the dice and go with the catered “Dessert Party” for up to 10).  Thirsty? Take your pick of wine (white and/or red, Virginia, California, Italian, and more), scotch (Balvenie, Macallan, HighlandPark, among others), bourbon, gin, martinis. 

And after you’ve totally over-indulged, you can take advantage of memberships in Washington Sports Club or Sports Club/LA – or if you prefer a bit more privacy (and we understand if you do), go for the eight private sessions with a certified personal trainer.

Looking for some sports action? You can score tickets to top-flight baseball (including bitchin’ seats at Fenway), football, basketball, hockey, soccer, horse racing and steeplechase events. And for the active among you, there are tennis, golfing and skiing available.

For the artsily inclined, there’s theater, symphony, ballet.

What if you just want to get away for a while?

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A Curmudgeon Looks at Terms and Conditions

With tongue totally planted in his cheek, our Curmudgeon-in-Residence re-imagines Contracts 101.

Blogmeister’s Note: In light of on-going developments in the law of privacy and users’ rights, our current Curmudgeon-in-Residence, Don Evans, has prepared the following sample list of Terms and Conditions. These should be suitable for most, if not all, business arrangements in which one side (ideally, you) is holding all the cards. The reproduction below is, for the limited purpose of making them legible to you this one time only, magnified approximately ten times beyond the recommended type size. Once you have read them, they should never be presented to any third party in a type size of more than one point.

Terms and Conditions  

Please review the following terms and conditions carefully before your use of the Service.   These constitute a legally enforceable Agreement between you and the Company which will govern our mutual rights and responsibilities. 

1. Your Privacy. Your privacy rights are important to us. While we cannot guarantee that the Private Information we become aware of in connection with the Service will not be hacked by Unauthorized Third Parties, we commit that we will not intentionally supply your Private Information to anyone other than (i) persons who duly pay us for the information, (ii) Governmental Authorities or persons purporting to be Governmental Authorities, (iii) our friends, and (iv) lawyers. We may make use of your Private Information for marketing purposes, to develop new products, to locate your assets in the event we ever have to sue you, to examine your tax returns, or for any other purpose. 

2.   Intellectual Property. The content you supply us in connection with the Service is called "Intellectual Property" (IP). Once you enter it into our database, you abandon all rights to the IP and irrevocably assign all of your right and title in the IP to us. We may re-publish it, revise it, punch it up, substitute other people in your photographs, or simply sell the IP as our own. Thank you. To the extent there is any liability for defamation resulting from your IP, you will remain the "author" of the IP and agree to indemnify for us for any damages we suffer from your carelessness or intentional misconduct.  

3. Free Use.   As advertised, your initial use of the Service is provided free of charge. We do reserve the right, however, to change this policy in the future at any time without notice or warning to you. In that event, you authorize us to make small monthly withdrawals from your checking and savings accounts which will appear on your bank statements as "service charges" that you will probably never notice or question. We may make such withdrawals in perpetuity. 

4. Your Rights in the Event of a Dispute Regarding this Agreement. The purpose of this Agreement is to ensure that you have no rights under this Agreement, but should you choose to assert rights, you will be responsible for paying all of our legal fees, regardless of whether we are found to be in the wrong. 

5. Limitation on Damages. In no case shall you be entitled to any damages greater than
25 cents, which, together with an additional two dollars, may get you a cup of coffee. On the other hand, in the event that you are found liable, we may elect to be compensated by either (i) money damages, including punitive, special, consequential, direct and indirect damages, or (ii) your first born child.

6.   Waiver of Rights. To the full extent permitted by law, you hereby waive all rights you can possibly waive, including, without limitation, the right to a trial by jury, the right to habeas corpus, the right to remain silent, and the right to life, liberty and the pursuit of happiness. 

7.  Governing Law. The law governing this Agreement shall be the law of the Island Commonwealth of Togo, which happens to be an investor in the Company. 

8. Acceptance. By clicking “I accept” below, you are certifying that you have carefully read this Agreement in its entirety, that you have gone over it in detail with your personal attorney, that you fully understand its consequences, and that you think it is perfectly fair. You will not later claim to have just clicked on the "I accept" button without actually having read this, and if you do so claim, you agree that in addition to other remedies available to us, we or our agents may inflict physical punishment upon you, up to and including the fracture of limbs. 

[__] I accept!

Tomorrow's Broadcast Leaders, Trained by Today's

FHH team offers guidance to BLT participants.

If you’ve ever wondered where tomorrow’s broadcast leaders will be coming from, look no further than the Broadcast Leadership Training Program (BLT). Created by the National Association of Broadcasters Education Foundation (NABEF), the BLT is a 10-month Executive MBA-style program that exposes talented senior level broadcast execs to the fundamentals of successful radio and TV operation. (Check out the BLT website for information on how to apply for next year’s program.)

And who teaches BLT participants? A wide range of professionals and academics who know what they’re talking about – including (and here we’re quoting the BLT website) “leading communications attorneys”. So it should not surprise you that the October 19 session on “Choosing and Working with Your Legal Advisors” was led by none other than FHH mavens (and CommLawBlog contributors) Frank Montero and Dan Kirkpatrick. Frank and Dan took their tutees through practical questions they’re likely to confront: the types of lawyers that a broadcaster would need; how to select various lawyers; billing issues; how to use your lawyer; and related topics.

This year’s class includes: Jeff Anderson; Pamela Barber; David Benton; Derrick Chresfield; Twanda Dula; James Finch; Robert Koplar; Mario Mendoza; Veronica Moroian; Elizabeth Russell Neuhoff; Efren Padilla; Oscar Rodriguez; Andy Ruback; John Treviño; Ty Shea; Benjamin Van Ness; Chris Weimer; Michelle Wright. They’re shown in the photo below, along with Michelle Duke (of the NAB) and Trila Bumstead (current dean of the BLT program) and Frank and Dan. How can you tell that they’re leaders on the rise? They’re all sporting their CommLawBlog shades. (Don’t you wish you had your pair?)

Reminder: Lazarus Online - September 25

In case you missed our last alert, here’s one more, just to be on the safe side. Our colleague (and CommLawBlog regular) Mitchell Lazarus will present a webinar this Wednesday, September 25 at 11:00 a.m. ET. Titled “What to Do When the FCC Says No”, it will consist of a veritable cornucopia of information on securing FCC approval for novel radio-based technologies. According to the webinar’s sponsor (that would be Washington Laboratories, Ltd.), the target audience here includes:

  • entrepreneurs;
  • manufacturers;
  • importers;
  • vendors dealing with innovative radio devices;
  • test laboratories and EMC test engineers called on to evaluate new technologies;
  • compliance managers; and
  • consultants advising firms that develop or market new technologies.

We also think it will appeal to all those FoB’s (i.e., Friends of the Blog) who, in requesting their CommLawBlog sunglasses, have specifically given Prof. Lazarus’s posts the big shout-out.

As you will find on the registration site, the webinar is not free, but technology companies should find it well worthwhile.

Hey, CommLawBlog, You've Just Celebrated Your Fifth Anniversary! What Are You Gonna Do Now? We're Going to Disney World!

Well, not exactly Disney World, but for sure Orlando. That’s right, Fletcher Heald is sending a phalanx of attorneys down to the NAB Radio Show, which will be convening at the Rosen Shingle Creek Hotel from September 18-20. Look for CommLawBlog regulars Frank Jazzo, Steve (“the Contracts Guy”) Lovelady, Dan Kirkpatrick, Matt McCormick, Frank Montero, Davina Sashkin, Kathleen Victory and Howard Weiss, all of whom will be making the scene. (Jim Riley and Scott Johnson will be there, too; maybe we can get them – finally – to file a post or two from poolside.)

Davina will be appearing on a panel (“And the Answer is: What is Radio Regulation Jeopardy”) on September 18. Be sure to stop by and say hi. As we have promised, we’re sending down a bunch of CommLawBlog shades (both retros and wraparounds) with her. You can get yourself a pair for the asking if you (a) can convince her that you’re a Friend of the Blog (FoB) and (b) are willing to wear them proudly in public, and maybe even (c) join the throngs who have already sent us spec-centric selfies. (And no, you don’t need to worry that you’ll be depriving Young Liam of the pair we sent him when he first got his face on the blog. When we heard that Davina was trying to take Liam’s shades away so that she’d have enough to take to Orlando (see photo, below), we freed up a few extra pairs so our youngest FoB can keep his. Seriously, Davina, have you no shame?)

Happy Birthday to Us!

Yup, if you're a Friend of the Blog, you can get a pair of these for yourself! 
Read how below.

This past Labor Day weekend marked the fifth anniversary of CommLawBlog in its present form. (We test-drove a version on another blog platform starting in April, 2007, but the following year got serious and moved to a Big Boy platform provided by our friends at LexBlog, under the direction of a new Blogmeister.) We’re probably as surprised as anybody at how far we’ve come in those five years.

Thanks to our able, experienced and knowledgeable FHH contributors (you know who they are), we have developed a deep, rich and searchable archive of more than 1,600 posts, covering a wide range of issues geared to those interested in the regulation of communications. We pride ourselves on bringing our readers timely and accurate information and analysis that they will find useful, occasionally amusing, and always readable.

We’re especially grateful to our readers, a large and still-growing crew who aren’t shy about letting us know what’s on their minds. Please keep your comments and emails coming.

We asked the Swami to take a look ahead and give us a hint at what might be on the horizon but, channeling his best Timbuk 3, all he could tell us is that the future’s so bright, we’ve got to wear shades. No problem! To celebrate our Fifth, we managed to convince the Powers-That-Be to let us get some totally bitchin’ CommLawBlog sunglasses for Friends of the Blog (FoB). (Check out the two styles in the photo above.)

If you’re an FoB and you want your pair of CommLawBlog shades, drop us a note telling us why you think you’re an FoB and, if we agree, we’ll send you a pair. (Retro or wraparound? YOU make the call.)  You can send it to us through a comment (we won't post it if you ask us not to) or by email to cole AT fhhlaw DOT com.

Don’t feel like writing? Not to worry. We’ll be sending a bunch of shades down to the NAB Radio Show in Orlando in a couple of weeks with Davina. She’ll be appearing on a regulatory panel on September 18 – stop by, tell her why you’re an FoB, and ask for your pair. We’ll make sure other FHH folks bring some along when they appear elsewhere, too. Don’t be shy. 

But once you get them, you’ve got to wear them . . . ALL the time. As we all know, when you’re cool, the sun never sets.

Foreign Ownership Questions? Frank Montero, Don Evans May Have Some Answers

FHH foreign ownership gurus on the bill in upcoming webinar

If you’re interested in the FCC’s recent relaxation of its foreign ownership rules – and the impact that that relaxation might have on commerce nationally and globally – check this out. FHH mavens (and regular CommLawBlog contributors) Don Evans and Frank Montero will be sharing their expertise in a webinar on October 23, 2013. Titled “What the FCC’s Relaxed Foreign Ownership Regulations Mean for Global Commerce”, the gig is billed as a webinar for folks who advise communications and broadcasting companies, professionals involved in media ownership and regulation, and pretty much anybody dealing in international commerce. It may even qualify for continuing legal education in some jurisdictions. Such a deal! The 90-minute affair is sponsored by Bloomberg BNA.  Consult the registration page for information about admission fees (there are several options),CLE details, other webinar panelists and the like.

"What to Do When the FCC Says No"

FHH expert on new technologies slated to give webinar.

You’ve read his blog posts – now you can hear him in person, sort of. Our colleague (and CommLawBlog regular) Mitchell Lazarus will be sharing his expertise on seeking FCC approval for new radio-based technologies in a September 25 webinar. Titled “What to Do When the FCC Says No”, it’s billed as a webinar for wireless device developers confronting the question, “What should technology companies do when developing a new device to assure it can be placed on the market legally?” The affair is sponsored by Washington Laboratories, Ltd.  It’s not free ($149 per person; site license also available), but technology companies should find it well worthwhile.

Davina's a Real Mother!

A bit of Fletcher Heald family news. Our colleague, Davina Sashkin, and her hubby, Bill Schreiner, welcomed William A. Schreiner, III, into their family – and the greater FHH fold – this past week. Mom and young Liam are doing well.  Liam is pictured, angelically asleep, at left. (Tip to Davina and Bill: don’t get used to this.) We here in the CommLawBlog bunker wish them all the best.

And Liam’s arrival reminds us that today is Mother’s Day. Permit us to diverge slightly from our usual FCC-centric mission to provide this public service announcement. If you haven’t already done so, we recommend that you turn off your computer, pick up the phone, and give Mom a call to thank her for what she’s done for you lo these many years. You know you appreciate her – and today’s the day to let her know, too.

Mexico Looks to Increase Competition, Foreign Investment in Communications Industries

The more the merrier: Major telecom reform measure marks turning point in regulatory approach. 

[Blogmeister’s Note: We welcome a new guest contributor, Ernesto Velarde-Danache, an attorney with offices in Mexico and Texas who is familiar with Mexico’s regulatory activities vis-à-vis its telecommunications industries. Ernesto has provided us with the following recap of a new law recently passed by the Mexican national legislature. As outlined below, the law, which is awaiting ratification by a majority of Mexico’s states, will have a major impact both on Mexico’s telecom industries and on foreign investors who might now be able to participate in those industries.]

For so many years important sectors of the telecommunications industry in Mexico have been under the control of the Mexican government or in the hands of a few private investors. This practice has been systematically denounced as oligopolistic by both Mexican and foreign entrepreneurs frustrated by the lack of opportunities within the sector.

Fortunately, this situation is nearing a most anticipated end. The Mexican congress recently approved a bill that, once approved by the majority of the Mexican states’ legislatures, will result in unprecedented opportunity for Mexican and foreign investors who have been waiting for this dramatic and, for many, most welcome breakthrough.

Under the new law, foreign investors will be allowed to invest up to 100% in the telecom industry. Historically, foreigners have been limited to owning no more than a 49% interest in Mexican telecom businesses. The new law will also dramatically change Mexico’s long-time bar against foreign ownership of any share of Mexican broadcast stations. The new law permits foreign investment in broadcast stations up to the higher of: (a) 49% of the corporate capital, or (b) the percentage of corporate capital investment made available to Mexican nationals in the investor’s home country.

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Jon Markman Joins FHH

Wilkommen, Bienvenu, Welcome!

Fletcher, Heald & Hildreth is pleased to announce that Jon Markman has joined our team as an associate attorney effective May 1, 2013.  Jon is a 2008 graduate of Yale, where he copped both a B.A. (with honors, thank you very much) and an M.A. before heading off to Ann Arbor for a law degree (cum laude again – hubba hubba!) from Michigan. Jon has interned for a U.S. District Judge and, most recently, was a Fellow at the Institute for Justice in Arlington, Virginia. He also served as an Associate and Contributing Editor for the U. of Michigan Telecommunications and Technology Law Review.  Jon admits to being a long-suffering Cleveland sports fan, although he’s prepared to work at being a long-suffering D.C. sports fan. He claims to have replaced the wall outlets in his home with outlets featuring built-in USB ports (although that claim has not yet been independently confirmed by CommLawBlog’s Official Fact Checker). Jon and his wife, Ligia, live in D.C. with a dog (named Eli – talk about your loyal alums) and two cats (Leo and Zipper). Oh yeah, he makes his own ice cream!

FHH Lawyer Gets Ink, Again

Our colleague Mitchell Lazarus has an article in the current issue of IEEE Spectrum magazine. Called “When Spectrum Auctions Fail,” it’s his fourth appearance there in the last four years.  IEEE, of course, is a widely respected association of electrical engineers. If you’re not one of the 385,000 people who already read IEEE Spectrum regularly, you can find Mitch’s article here.

For Third Year in a Row, FHH Tops In Media Deals

According to SNL Kagan, recognized as one of the preeminent sources of financial analysis in the media business, last year Fletcher, Heald and Hildreth advised in more media transactions than any other law firm – by a long shot. Hey, isn’t this the same post we put up last year? Not quite. While FHH was also Number One in the number of media deals in 2011, and again in 2010, this past year the total of deals in which FHH provided guidance was 144.5 – 32 more than in 2011 and 40 more than 2010. FHH’s 2012 total was more than twice those of the next highest firm.

Through rugged economic times, our clients have continued to thrive. And they have continued to call on us to provide guidance and counsel in structuring their deals and navigating them through the regulatory process.

As we have in past years, we congratulate our clients for their successes, we thank them for the confidence they have placed in us, and we look forward to providing the same quality representation to clients, old and new, that we have been providing for more than 75 years.

Kevin's In the House . . . or, Rather, the Senate!

Swami Goldberg takes a turn as Witness Goldberg.

FHH attorney Kevin M. Goldberg – you may know him as the Swami – doffed his seer gear recently and testified before the Senate Judiciary Committee. That’s the United States Senate, thank you very much. The occasion was a hearing entitled “We the People: Fulfilling the Promise of Open Government Five Years After The OPEN Government Act”. The general topic:  implementation of the Freedom of Information Act (FOIA) five years after the OPEN Government Act was signed into law. (The OPEN Government Act was the product of efforts by Senate Judiciary Chair Patrick Leahy and fellow Committee Member John Cornyn.)

Kevin testified on behalf of the American Society of News Editors and the Sunshine in Government Initiative. In his testimony he reviewed provisions of the Open Government Act that have worked and those that have not; he also addressed the Obama Administration’s faithful implementation of that law and the requirements of the FOIA generally. 

He made five specific recommendations for further amendments to the FOIA: 

Strengthen the Office of Government Information Services, also known as “OGIS” but informally referred to by many as the “FOIA Ombudsman”, by increasing its funding and its independent authority to hold other agencies accountable;

Hold OGIS itself accountable, requiring it to exercise its advisory opinion power to create a record that FOIA requesters themselves can use to hold agencies accountable; 

Hold all governmental officials individually accountable by making information disclosure a part of every federal government employee’s overall performance review;

Codify the disclosure-friendly standard previously described by Attorney General Eric Holder in a March, 2009 memorandum. Under that standard, information should only be withheld from disclosure if foreseeable harm would result from the information’s disclosure;

Save taxpayers some money by encouraging agencies to adopt a new processing system (currently being tested) known as “FOIA Online” as their existing software contracts expire. 

You can snag a copy of Kevin’s written testimony at this link, but if you want the full Kevin Goldberg Experience, check out the video of the hearing at this link.  Total wonks will likely be transfixed through the whole two-hour extravaganza, but members of the Kevin4Ever Fan Club will probably want to cut to the chase by scooting ahead to the 1:44:00 mark (or thereabouts) and watching through 1:48:44. That’s where he delivers his testimony. Then you can flash forward to about 1:55:00, which is the start of some back-and-forth that culminates in three minutes’ worth of follow-up observations by Witness Goldberg, beginning at 2:00:39 and running through 2:03:16.

Kevin aficionados will doubtless swoon when the Man Himself gets a laugh out of Senator Al Franken, no stranger to humor (that’s at 2:00:39), or when he stirringly professes his love for his wife Brenda (at 2:01:50, but be sure you have some Kleenex handy before you hit the “play” button), or when Franken observes -- accurately --  that Kevin, in his testimony, managed to work in cites to Jerry Garcia, Bruce Springsteen and his wife (check it out at 2:01:58).

And for more Kevin G, take a gander at his op-ed piece published recently by no less a Main Stream Media Member than USA Today.

New Faces at FHH

Fletcher, Heald & Hildreth is pleased to announce the addition of two new lawyers to its slate of telecom practitioners: James Troup and Tony Lee. They come to us most recently from the Venable law firm in Washington, where they practiced together as partners in the communications section for six years. This represents something of a homecoming for Jamie, since he actually began his career at FHH in the mid-’80s.           

Jamie and Tony’s primary focus has been on the matrix of issues affecting independent local exchange carriers, including federal regulatory issues, wireless offerings, tariffs, access charges, ancillary service offerings, transactions, and related litigation. They currently work with a large network of ILECs in Iowa and other states. They are also experienced in handling large enterprise telecommunications contracts and complex mergers.

Now Available Online: Our Review-2012/Preview-2013 Webinar

Earlier this week we reported on our plans to present a webinar covering a variety of hot button issues. The show went off without a hitch, and we’re pleased to report that, even if you missed it live, you can still catch the recording of the program by clicking on this link. Thanks to operator error (we’re lawyers, for cryin’ out loud, not audio techs), the recording misses the title and introductory slides (one of which featured photos of the presenters, Kevin Goldberg and Dan Kirkpatrick) as well as Frank Jazzo’s eloquent intro. It looks like Frank’s deathless prose has now been lost to the ages, but if you want to see all the PowerPoint slides, here’s a link to a PDF version

We want to again thank our friends at the 13 state broadcast associations who helped promote the webinar among their memberships. (Those would be Alabama, Alaska, Arkansas, Hawaii, Louisiana, Maryland/DC/Delaware, Mississippi, Nebraska, New Mexico, Puerto Rico, South Carolina, Tennessee and West Virginia.) We expect to be presenting more webinars in coming months, and we encourage you, our readers, to let us know what subjects you might want to hear about.

State of Maine Public Safety Gains Access to VHF Railroad Spectrum

FCC action follows negotiated arrangements between the state and the railroads.

Many state and local governments, especially in largely rural areas, have long eyed certain under-utilized frequencies in the VHF band (150-170 MHz) otherwise reserved for railroads as a possible source of spectrum for public safety communications. The State of Maine recently gained access to some of  those railroad frequencies for a new state-wide public safety radio network. 

The VHF band has propagation characteristics that make it ideal for land mobile radio use in sparsely populated, mountainous, and heavily forested areas. Other available land mobile frequency bands, such as UHF and 700 MHz, require far more transmitter sites to provide comparable coverage. But the number of VHF frequencies assigned for public safety use is limited, especially in areas near the Canadian and Mexican borders.

Maine has the longest land border with Canada of any of the Lower 48 states, a fact that  limits its access to VHF. Nevertheless, nearly all state and local government public safety agencies in Maine rely heavily on a patchwork of aging VHF systems for their radio communications. A few years ago, the state contracted with Harris Corporation for a new state-wide VHF network that would greatly improve radio capabilities, coverage, and interoperability. But officials were unable to find enough vacant VHF frequencies in the FCC’s Public Safety Pool. That led to the ultimately successful effort to obtain a rule waiver from the FCC to allow the use of frequencies in the Industrial/Business Pool normally set aside for railroads.

The FCC-designated coordinator for those frequencies, the Association of American Railroads (AAR), objected to Maine’s request from the outset. But after extensive discussions, the state and AAR ultimately entered into a Memorandum of Understanding (MOU) that allows the state to use certain railroad frequencies, while ensuring that this use will not limit future railroad communications requirements in Maine. The FCC, citing the MOU, granted Maine’s request for waiver on February 5.

(Disclosure: FH&H provided legal counsel to Harris Corporation and the State of Maine).

FCC Urges Broadcasters to Secure EAS Equipment

FCC moves to close down backdoor weakness in EAS system that may have led to “zombie attack” alert.

As many of our readers have probably heard, a number of broadcast stations in various parts of the country found their EAS systems hacked yesterday. The result: the stations issued EAS alerts about zombie attacks. Since the alerts appear to have utilized (probably through the miracle of Internet accessibility) the stations’ own systems, those alerts sounded for all the world – and could, and should, have been accepted by the public – as the Real Deal (except for the part about the zombies).

While this may have amused some, the fact of the matter is that any compromise of the EAS system creates serious risks to the public. It’s not hard to imagine faux alerts with a much more sinister effect.

With that in mind, the FCC has (according to our friends at the NAB) issued the following “Urgent Advisory” outlining “immediate actions to be taken regarding CAP EAS device security”:

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. 

All CAP EAS equipment manufacturer models are included in this advisory.

All Broadcast and Cable EAS Participants are urged to take the following actions immediately.

  1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts. 
  2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
  3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
  4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
  5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

When the Commission refers to “immediate” action, it presumably means “immediate”, like right now, this instant, as soon as possible (if not sooner). Bear in mind that many, if not most, broadcasters will likely be providing coverage of the President’s State of the Union speech this evening. We’re guessing that the FCC is looking to have all the steps outlined above wrapped up before those festivities crank up.

This has been a public service announcement from CommLawBlog.

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
          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.

Fletcher, Heald & Hildreth - Now Hiring, Again

The FHH Hiring Committee has requested that the following announcement be posted:

Experienced attorney sought – Fletcher, Heald & Hildreth, PLC is seeking an associate to assist in our mass media practice. Superior academic credentials, writing skills and references required.  Small-firm collegiality with large-firm infrastructure.  Competitive salary and benefits.  Virginia Bar membership expected within one year.  Send resume to george@fhhlaw.com.  Principals only.

That’s correct. We have another slot open, this time on the mass media side. So if you missed out last September when we were looking for help in the wireless/wireline area (we filled that slot earlier this month), you’ve got another chance. Qualified candidates, apply at your earliest convenience. Feel free to mention that you learned about the opportunity on CommLawBlog.com.

Important additional perk the Committee somehow keeps forgetting to mention: yes, the successful candidate will get to write for the blog.

113th Congress: Cooperation and Convergence?

(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on trends that will impact communications clients in the 113th Congress. Catherine is a Vice President at DCI Group where she counsels clients in federal policy matters.

The Worst Congress Ever has just wrapped up its business. Where do we go from here?

As I write this, the gavel on the 112th Congress’ last votes fell just days ago. The ignominious 112th Congress is doing its walk of shame back home from Washington and all around town its performance is being summed up: “Worst. Congress. Ever.” 

Writing about the specific telecom issues facing Congress at the beginning of the last session, I speculated that the 112th would be heavily influenced by love and money. In other words, Congress needed to confer incentive auction authority on the FCC and pass a few pro-consumer measures (involving, e.g., protection of online privacy). And sure enough, Congress did take care of the auction issue – bringing money into the Treasury seemed to be a priority.   Some progress was made on the privacy front, but not all of it through the legislative process.

But at the beginning of the new 113th Congress, rather than talk about specific issues I want to focus more on how two other trends will shape communications policy: cooperation and convergence.

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Cheng-Yi Liu Joins FHH

Wilkommen, Bienvenu,

Fletcher, Heald & Hildreth is pleased to announce that Cheng-Yi Liu has joined our team as an associate attorney effective January 2, 2013. Cheng is a 2006 graduate from the Maurer School of Law at Indiana University, where he received a Merit Scholarship and Dean’s Honors and, most strikingly, co-founded the University’s Chinese Yo-Yo Club. He got his undergraduate degree (a B.A., with a minor in electrical engineering) from the University of Texas. He’s spent the last five years advising clients on a wide range of telecom and regulatory matters, including VoIP, wireless licensing, carrier service/resale arrangements and the like. We’re pleased to report that, in addition to his obvious familiarity with telecom law (and his interest in Chinese Yo-Yo), Cheng also lists recreational lock-picking among his hobbies. Cheng resides with his wife, Sarah (and, of course, their cat, Mrs. Huggins) in Arlington, Virginia.

Commissioner Pai: The Dude Abides.

Sometimes Commissioners aren’t content to just vote on the orders the FCC issues. Instead, they feel the need to issue their own “separate statements”, explaining, justifying, hedging, etc., etc. their votes.

We read a lot of those statements – it’s an occupational hazard. As far as we can tell, such statements usually don’t add much to the Greater Good. After all, the FCC’s decision is the FCC’s decision, and the individual musings of one or another Commissioner may be marginally interesting, but they don’t affect the decision.  They often seem intended primarily to bestow kudos on Commission staffmembers, members of Congress, various other notables, while articulating observations that, apparently, couldn’t garner a majority of the Commission (otherwise, presumably, they would have been included in the actual order, obviating the need for a separate statement).

Which brings us to a separate statement of a different stripe. The Commission voted to close up a quasi-loophole in the Telephone Consumer Protection Act, a loophole that some members of the bar (other lawyers might refer to them as “brethren” but, frankly, we’d rather not) have apparently used to justify class action suits of dubious validity. And Commissioner Ajit Pai issued a separate statement in connection with the decision.

We salute Commissioner Pai’s statement and commend it to our readers’ attention.

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Davina Says: "Start Bidding - NOW"

The online end of the FCBA’s 2012 Charity Auction is open for business.  What are you waiting for?

FHH’s Davina Sashkin is a force to be reckoned with.  Trust us.  In addition to cracking the whip around our office, she’s also on the Charity Auction Committee of the Federal Communications Bar Association.  And she wants everybody to know that the online auction is now accepting bids.  That means that you should get your sweet selves out to the FCBA Auction site immediamente and get the bidding started – NOW!  It’ll be best for everybody if you just do as she says and don't ask any questions.

Fortunately, complying with Ms. Sashkin’s directive will not be unpleasant by any means.  Au contraire, as it turns out there’s much to be gained from participating in the online bidding.  You could score tickets to the David Letterman Show.  Or how about the chance to sit in with the Sports Junkies as they do their thing on 106.7 The Fan?  You know you want to be there – and here’s your chance.  There are plenty of other bitchin’ items up for grabs.

The online bidding opened as of 8:00 a.m. November 1, and it’ll stay open until 8:00 p.m. (ET) on November 15.

Computer down?  Not to worry.  You can also attend the FCBA’s gala live auction event on November 8.  It’s free and open to the public, and set to crank up at 6:30 p.m. at the Capital Hilton on 16th Street in D.C.  Go early and stay late. (They’re estimating last call for around 10:00 p.m., if you care.)

While the full range of cool stuff to be auctioned live hasn’t yet been made public, we have it on very good authority that the list is excellent.  For example:

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In Memoriam: Jeff Brock

We  note with great sorrow the untimely passing of Jefferson G. Brock -- you probably knew him simply as "Jeff" -- our good friend and long-time distinguished engineering colleague, on October 14, 2012.  Jeff was a warm, humble and sincere gentleman, with a wry sense of humor and a passionate love for the Atlanta Braves. 

A brilliant engineer, Jeff had a deft writing touch and an amazingly active, creative and encyclopedic mind. We never knew him to refuse help to his many friends on all matters large or small, reimbursable or not, and regardless of his own workload.  A very practical man with excellent business sense, Jeff was also a broadcaster at heart and for real – he and Stu Graham, his long-time partner, operated a successful LPFM station out of their offices. Jeff’s client base was large and nationwide, reflecting his skill, conscientiousness, and charm.  Jeff and Stu hosted the annual barbeque outing at the NAB in Las Vegas that members of this firm proudly, and happily, attended.

Jeff was a class act and the people in his firm reflect that class.  We will miss Jeff a great deal, but as Stu tells us, there will be a lot of terrific stations in heaven once Jeff arrives and performs his magic.

There will be a memorial service for Jeff in Alpharetta, Georgia on Saturday, October 20, 2012. The family will receive visitors from 1:00 - 2:00 PM with a service to follow at 2:00 PM at

Southcare Cremation and Funeral Society
2260 Old Milton Parkway
Alpharetta, Georgia  30009

There will also be a service on St. Simons Island, Georgia on November 3, 2012.  The location and date for this service will be announced later. In lieu of flowers, the family has requested that remembrances be sent to either:

The American Cancer Society (www.cancer.org/involved/donate/donateonlinenow)


The Humane Society of South Coastal Georgia, Inc.
4627 US Highway 17
North Brunswick, Georgia  31525

Fletcher, Heald & Hildreth - Now Hiring

The FHH Hiring Committee has requested that the following announcement be posted:

Experienced attorney sought -- Fletcher, Heald & Hildreth, PLC is seeking an associate with 3-5 years’ experience for our growing wireless and wireline telecommunications and Internet practices. Superior academic credentials, writing skills and references required. Small-firm collegiality with large-firm infrastructure. Competitive salary and benefits.   Virginia Bar membership expected within one year.  Send resume to george@fhhlaw.com. Principals only.

That’s correct. We have a slot open, so now’s your chance. Qualified candidates, apply at your earliest convenience. (Feel free to mention that you learned about the opportunity on CommLawBlog.com.)

Important additional perk the Committee somehow forgot to mention: yes, the successful candidate will be permitted to write for the blog.

In Memoriam: Ann Arnold

The U.S.broadcast industry has lost a champion, inspiration and friend. We report, with sadness, that Ann Arnold, President of the Texas Association of Broadcasters, passed away on September 1. After an initial career in journalism (which included a stint as Press Secretary to the Governor of Texas), she took over the reins of the TAB in 1987 and the rest is history. (The TAB has provided a detailed review of Ann’s career at its website.) For a quarter of a century as TAB President, Ann was an indefatigable advocate for broadcasters (and journalists) at the state and national levels. Her tireless efforts are all the more impressive in light of the fact that, throughout her tenure with the TAB, she was battling leukemia which had been diagnosed shortly before she signed on with the TAB.

She brought a daunting combination of intellect, experience, energy and commitment to everything she did.  Informed, incisive, insistent – and, yes, inspirational – Ann was a force to be reckoned with. And her considerable powers of persuasion were invariably applied with genuine grace, charm and good humor. It was always a treat to deal with Ann.

We at FHH happily counted Ann as a friend. We will miss her.  We extend our deepest condolences to her family.

FCC Still Clenching Improperly Collected Application Fees

Mum’s still the word at the FCC, more than a year after word surfaced about its questionable collection, and retention, of certain fees.

Gee, has it already been more than a year? 

In June, 2011, we posted an item about how the FCC had, for seven years or so, been pocketing certain application filing fees which weren’t really owed by the applicants.  The Commission did quietly issue a refund in response to one request in March, 2011 (notation on the refund check’s memorandum line: “not required to pay fees”).  But it didn’t publicly announce that refund; instead, it quietly tried to change the rule that forbade collection of the fees.

During the summer of 2011, we filed a number of such requests on behalf of various clients, citing the refund that was issued.  We understand that other law firms did as well.  In the intervening year or so, however, no further refunds have been issued.

Last March, Jack Mullaney, the consulting engineer who (through our friends at Radio World) first called our attention to the FCC’s, um, sticky fingers, emailed the folks in the Office of the Managing Director (OMD) – which normally handles fee-related matters – inquiring about where things stand.  Opting not to respond in writing, OMD offered to speak with Jack by phone.  Jack agreed, and asked us if we’d like to sit in.  You betcha, we said.

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The Swami . . . Online!!!

 He’s ready for his close-up.  Are you?

You’ve read his stuff, and you’ve probably wondered – who is this Man of Mystery they call the Swami? Now you can hear him and see him as he expounds, with customary eloquence, about the Supreme Court decision in FCC v. Fox Television Stations. The Swami, Kevin Goldberg, is now available to you on the small screen (probably the one you’re reading this on). He quotes Cher. He quotes Bono. He quotes Nicole Richie. He does it all. Is this a great country or what?

Kevin’s online appearance comes to you thanks to our good friends at LexBlog, the legal-focused blogging platform that hosts CommLawBlog.  He sat down for a short Skype-based interview with LexBlog’s Colin O’Keefe, answering a few questions regarding the history of the case and the issue, the Court’s decision (and why it was unanimous), and the likely impact on broadcasters.   This is part of LexBlogs “LXBN TV”, a cool service that brings blog posts to life.

You can see all 12 minutes and 48 seconds of the interview here.

The App of Invulnerability

CommLawBlog’s Curmudgeon-in-Residence observes modern society . . . and doesn’t necessarily like what he sees.

Public safety officials are becoming increasingly concerned about a new cellphone-related hazard.  This time it’s not the problem of driver distraction, which has prompted numerous states to restrict, or even ban, texting or handheld phone use while driving.   No, in this case it’s pedestrian cellphone users who are getting run over in greater and greater numbers due to pedestrian distraction.  Researchers at Stony Brook University, the University of Illinois at Urbana-Champaign and the University of Maryland have identified the growing problem of, and dangers to, distracted walkers.

We here at CommLawBlog can attest to the phenomenon.   Frequently we find ourselves driving toward an intersection or stretch of road where we unquestionably have the right of way, only to find a pedestrian strolling across the road, oblivious to the traffic around him, chattering animatedly on his phone.  He or she doesn’t bother to stop, look or listen (at least not to us).  Instead, he/she just saunters off across the street in perfect confidence that the traffic will halt, veer around, or perhaps levitate over the saunterer as long as he/she is talking into the magic device.

What’s going on?

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Are You Using 20th Century Contracts for 21st Century Transactions?

[Blogmeister’s Note: Recently, the CommLawBlog Contracts Guy, Steve Lovelady, conferred with Kathy Kleiman, Fletcher Heald’s Internet Maven, in the preparation of transaction documents involving the sale of a broadcast station, a sale which involved a number of important Internet-related assets. The two concluded that 20th Century asset sale/purchase agreements – even agreements that contracting parties still use, often out of force of habit – don’t include adequate provisions for 21st Century intellectual property issues. They prepared the following post based on that experience. The Contracts Guy is especially grateful for the Internet Maven’s extensive familiarity with the Internet, which came in handy in identifying and capturing the substance, and value, of a station’s online intellectual property assets.]

 Contracts for the purchase/sale of broadcast stations are a bit like recipes. Particular broadcasters and their lawyers tend to have their favorite versions which include provisions that they happen to like. Maybe they drafted those provisions themselves. Maybe the other party to some deal they did a long time ago drafted them and our particular broadcasters (and their lawyers) liked the way the provisions worked. Who knows?

Whatever may be the case, when a new deal pops up, those broadcasters (and their lawyers) normally don’t waste time creating a brand new asset purchase agreement from scratch. No. More often than not they rummage through their file of previous deals. When they find a contract that comes close to the outlines of the new deal, they tweak the old contract as necessary to make it work for the new deal – just as a chef, in assembling a new meal, starts off with tried-and-true recipes that can be tweaked here and there to accommodate the guest’s tastes and the ingredients available.

That approach tends to work well. It’s efficient and economical. And it affords contracting parties the psychological comfort of using documents they’re familiar with.

But reliance on the old can cause problems. Contracts handed down from year-to-year and deal-to-deal may need to be freshened up, just like old recipes. And that’s particularly true with respect to broadcast deals in the 21st Century.

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ICANN Slams Door on Applications for New Internet Top-Level Domains

List of applicants to be disclosed on June 13.

The universe of Internet addresses will soon be expanding. On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN), the organization formed in the late 1990s to oversee the global domain name system, will unveil the 2000+ applications for a host of new “Generic Top Level Domains” (gTLDs). Once in place, these will change how all of us use the Internet.

First things first. A top level domain (TLD) is the term that appears “to the right of the dot” in Internet addresses. It comes in two flavors: a “country-code” top level domain, or ccTLD (e.g., “.US”, “.FR”, “.UK”) and a “generic” top level domain (or gTLD), including most of the ones we use every day, such as “.COM”, “.ORG”, and “.GOV”.

Since ICANN took over domain name management in 1999, it has added a few gTLDs, but there are only 21 now available for the world to use. Each gTLD is entrusted to a Registry which is responsible for the TLD’s technical management, including proper operation of the registry zone servers and dissemination of the TLD zone files. Registries play a role key in the technical management of Internet infrastructure and in stability and security of the Net.

Registries do not sell domain names to the public. That task is reserved for “Registrars,” who handle the retail side of the domain name operation. They register “second level domain names” to the left of the dot, e.g., “fhhlaw” in fhhlaw.com. GTLD Registrars, like gTLD Registries, are under contract to ICANN, which encourages competition among them. GoDaddy, famous for its Super Bowl commercials, is the largest of these.

ICANN is now introducing competition to the top level as well.

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FHH Welcomes Back Kathy Kleiman

Internet expert returns to co-head Internet Law and Policy Group.

Fletcher Heald & Hildreth, P.L.C. is pleased to welcome Kathy Kleiman back into the FHH fold.  Kathy was an associate with the firm in the 1990s, but she left to explore the then-just-developing world of Internet Law (but not before she had co-founded the firm’s Internet Law Group, one of the first of its kind).  She now returns as FHH’s Internet Counsel to co-lead its Internet Law and Policy Group. 

To say Kathy is well-suited for the job is an understatement.  She helped found the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that coordinates the domain name system without which the Internet wouldn’t be the Internet.  Kathy was a key drafter of the domain name dispute policy everyone uses today, and an editor of many sections of the rules governing new top-level domains.  She has traveled to ICANN meetings in more than a dozen countries on six continents and spoken on Internet Free Speech, intellectual property protections, fair use, privacy and due process around the world.

Kathy is Beantown-educated – Harvard undergrad, BU law (both with honors, thank you very much).  She currently lives in Falls Church, Virginia, where she dabbles in community leadership and politics when she’s not tending to her two kids.  In what passes for free time chez Kleiman, she is also producing a documentary about the six women who programmed ENIAC, the world’s first modern computer, and thus founded the field of modern programming. (Want to know more about Kathy’s background? Check out her extensive résumé here.)

Kathy will be working with clients on a wide range of projects relating to: domain name conflicts; challenges and opportunities likely to be encountered in connection with new top level domains; website protections; and Free Speech and intellectual property issues in the Internet age.  And, if the Blogmeister has anything to say about it, she’ll be a regular contributor here.

She can be reached at 703-812-0476, by email at Kleiman@fhhlaw.com, or at Skype ID Kathy.kleiman.

"What a Beautiful Sight!"

This isn’t about communications law, or copyright law, or trademark law, or any of the other stuff we usually address here at CommLawBlog. But sometimes something happens that’s just SO COOL that you feel like you ought to let others know about it. And one of those somethings happened to us here at Fletcher Heald this morning.

The Space Shuttle Discovery flew over our office. Right over our office. Real close right over our office.

The Discovery was arriving in D.C. to take up residence at the Smithsonian’s Udvar-Hazy Center near Dulles Airport and, as most readers have probably already heard, on its way to that final resting place it took a victory lap over Washington. To set up that lap, the shuttle initially flew south from Dulles toward Reagan National Airport. Our offices were directly under the flight path, although we didn’t know that beforehand. We gathered at windows, looking out across the Potomac River at the memorials (Washington, Lincoln, Jefferson) and the Capitol, waiting for the Discovery to appear from down the river. And then WHOOSH – with a sudden unexpected roar of jet engines, a 747 swept past right over our heads, so near it seemed we could touch both it and the Discovery riding piggy-back on it. It flew down the river, banked back up and swung past the Mall, a total of three times, each time providing a chance for us to marvel at the graceful icon of technology on its final flight. And marvel we did.

At the dawn of the U.S. manned space program, our first astronaut, Alan Shepard, exclaimed “What a beautiful sight” as he ascended into the heavens. The arrival of Discovery today, now descending from the heavens, may mark an end of sorts to manned space exploration as we have known it for the last half century. But bittersweet though it may have been, that arrival, too, was a beautiful sight.

The photos above were taken from our offices by our paralegal, Denise Branson.

Access of Evil? FCC Unveils NOITALS

Don’t be surprised when Broadband the FCC Cat pops up on your screen.

The Commission has long bemoaned the fact that the Great Unwashed are “woefully ignorant” of the nitty-gritty details of their Internet access. Not for long. That bell you just heard was signaling the start of classes at the University of FCC, Online Division. Attendance is required. Prepare to get schooled.

In a surprising move – made all the more surprising by the low-key way in which it was disclosed – the Commission is taking aggressive steps to correct the rampant problem of high tech know-nothingism.

Meet NOITALS – the Nationwide Online Information Tracking and Logistics System. (Apparent pronunciation: “KNOW-IT-ALLS”.) In a public notice announcing, among other things, an expansion of the 2012 Measuring Broadband America Performance Study of Residential Broadband Service in the U.S., the Commission mentions NOITALS, pretty much in passing, without any fanfare at all. The Commission plans to use NOITALS to measure everybody’s Internet access speed, along with other parameters of Internet performance). 

How’s it going to do that? 

It seems that NOITALS enables the Commission to see what’s going on in each individual computer, nationwide, without the intervention of the computer’s user.

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In Memoriam: Nai Tam

We are saddened to report the loss of another member of the FCC family. We have learned that Nai Tam, long-time engineer at the Commission, lost his two-year-plus battle with brain cancer on January 23. Nai is familiar to communications professionals in most regulatory areas, as he served in the Media Bureau, the Enforcement Bureau, the Office of Engineering and Technology and the International Bureau. He started at the Commission’s Norfolk Field Office in 1974, but soon moved to the then-Broadcast Bureau, processing AM and FM applications in the Aural Facilities – New and Changed Branch. Most recently he worked in the Media Bureau’s Video Division, helping the TV industry through the 2009 digital transition.

Nai had a firm grasp of all details, obvious and subtle, of the Commission’s technical rules and processes. More importantly, he was able to explain those details to us non-engineers who needed more than a little tutoring in engineering esoterica. He offered those explanations patiently and graciously. If something more than an explanation was necessary to help resolve issues, he took care of things without fail and without delay, often coming up with creative solutions in the process.

On a personal note, in 1974 this blogger – just arrived at the FCC with nothing more than a newly-issued law degree in hand – shared an office with Nai. We became and remained friends. He taught me much over the years. I am grateful for his help and his friendship. 

Nai served both the agency and the communications industry well, with efficiency, good humor and personality. We extend our condolences to his family. We will miss him.

Funeral services for Nai had already been held by the time we heard of his passing. Donations in his memory may be sent to the Neuro-Oncology Research fund for the Memorial Sloan-Kettering Center.  An account has been created in memory of Nai Yum Tam.

For Second Year in a Row, FHH Tops In Media Deals

According to SNL Kagan, recognized as one of the preeminent sources of financial analysis in the media business, in 2011 Fletcher, Heald and Hildreth advised in more media transactions than any other law firm – by a long shot. By year-end 2011, FHH had provided counsel in 112 deals, nearly three times the number of the second-place firm. This is the second year in a row that FHH has achieved the Number One ranking.

Despite both a difficult economy and a challenging regulatory environment, our clients have continued to thrive. And they have continued to call on us to provide guidance and counsel in structuring their deals and navigating them through the regulatory process.

We congratulate our clients for their successes, we thank them for the confidence they have placed in us, and we look forward to providing the same quality representation to clients, old and new, that we have been providing for more than 75 years.

Memorial Service for Taft Snowdon to be Held on January 28

Taft Snowdon, whose death we noted with sadness last November, will be remembered in a memorial service in Washington on Saturday, January 28. We have received the following information about the service from Taft’s family, and we are happy to pass it along to anyone wishing to pay their respects to our departed friend and colleague.

A memorial service will be held at 4pm on Saturday, January 28th at St Johns Church, 3240  ‘O’ Street, NW in Georgetown (not Grace Church as originally planned). There is limited parking available.

Following the service we would like you to join us at Dumbarton House,  2715 Q Street, (not Dumbarton Oaks), which is a fairly challenging uphill walk for the stalwart - probably better to carpool or take a taxi as the parking there is even tighter.  (Some on-street parking should be available along 28th Street.)

For those of you looking for accommodation, we have been able to obtain preferential rates at the Georgetown Inn, in the heart of Georgetown.  Please book through Courtenay Altaffer on 540-368-5633 as soon as possible - she advises grabbing a reservation which can be cancelled later if necessary.

For everyone who has inquired, we thought it would be appropriate to suggest a donation to The Grace Outreach Committee (Grace’s Table) at Grace Church, 1041 M St, Washington, DC 2007, or the African Wildlife Foundation - www.awf.org/memorial, in Taft’s name, instead of flowers.

However much we would love to see you, no one should feel any obligation to come to Washington on the day.  We have already been overwhelmed by the heartfelt reaction to this unexpected tragedy, which has brought us all together (and are thankful to the Rev John Graham of Grace Church for having been able to arrange a larger church to accommodate us).

Thank you for your calls and messages of sympathy.  They have provided much comfort and confirmation of how much Tee was loved and admired.

Kevin Goldberg: On the Journalism Beat

Here’s a reminder for all our readers. We here at FHH do more than FCC work. Our team has expertise in a variety of other communications areas, from corporate governance to lobbying to intellectual property to . . . journalism law. 

That last area, journalism, has been in the news recently, thanks to the case of Obsidian Finance Group, LLC v. Crystal Cox. That’s the case that triggered a lot of buzz when U.S. District Judge Marco Hernandez ruled that Montana-based blogger Crystal Cox is not a “journalist” for purposes of the Oregon shield law. (Ms. Cox was being sued for defamation after writing unpleasant things about an Oregon financial firm.) The Internets were outraged. How dare some judge say that bloggers aren’t journalists? Just another case of some old guy wishing for the days of yesteryear, right?

Just ask our own Kevin M. Goldberg, legal counsel to the American Society of News Editors (the nation’s largest trade association for editors of daily news publications). As Kevin writes on the ASNE’s website (we can’t keep all of Kevin’s good writing to ourselves), the judge’s ruling is (a) largely misunderstood and (b ) in many respects, correct. For that reason – and for reasons related to where Judge Hernandez gets it wrong – the ire about Judge Hernandez’s ruling is misplaced and certainly overblown . . . especially since the case probably will be consigned to the dustbin of history sooner rather than later.

You can read Kevin's analysis here.

H.R. 3010 - Mike Marcus Has Something to Say

And in our experience, when Mike speaks, it's a good idea to listen

Our friend Michael Marcus has called our attention to a bill introduced in the House (that would be H.R. 3010) that could complicate the rulemaking process for all agencies, including the FCC.  Adding layers of procedural requirements onto agencies already carrying a heavy procedural load may make sense in some contexts.  But, as Dr. Marcus observes, forcing the FCC to jump through, over and around unnecessary hoops can have particularly untoward results.  The FCC, after all, is already straining to keep up with the technology that it’s supposed to be regulating.  Weighing it down with extra procedural handicaps could, and likely would, further hinder its ability to regulate effectively.  But don’t take our word for it – go to Mike’s blog and see what he has to say.

In Memoriam: H. Taft Snowdon

We at Fletcher Heald were saddened today to learn of the death of Taft Snowdon. His name may be unfamiliar to many – perhaps even most – broadcasters, but for more years than we care to count he played a crucial role as far as the radio industry was concerned. Taft was a long-time – more than three decades – FCC attorney who supervised the processing of all assignment and transfer applications in the Audio Division. If you had a radio deal that needed Commission approval in the last 20 years, more than likely Taft looked at it and signed off on it. It is a measure of Taft’s talent that, under his watchful eye, thousands of radio assignment/transfer applications have been processed with a clockwork consistency and predictability not often encountered in the federal bureaucracy.

Taft was reasonable, and he was smart, and he would listen. He treated you with courtesy and respect, and he gave you a straight answer. He could be very funny, too. Maybe he’d give you what you asked for, maybe he wouldn’t – but it was always a pleasure to interact with him. A true professional, and a really nice guy. We extend our condolences to his family. We will miss him. 

Form 323 - The Fun Begins Again

Media Bureau announces opening of 2011 Ownership Report season, but leaves out some information that many might find useful

The Media Bureau has reminded commercial broadcasters that their biennial Ownership Reports (Form 323) are due to be filed by December 1, 2011 – and that the opportunity to start filing them opens up October 1, 2011.

But the Bureau’s public notice doesn’t mention some information we kind of hoped they might, since we reminded them of it just a couple of weeks ago. Seeing as how the Commission seems less than clear about what it told the U.S. Court of Appeals for the D.C. Circuit just last year, let us help out here.

The question: Is it really true that anybody and everybody with any attributable interest in a reporting licensee must be identified, in the report, by a Social Security Number-based FCC Registration Number?

Short answer: No.

Longer answer: No, individuals with attributable interests may submit a non-SSN-based FRN – dubbed a “Special Use FRN” (we refer to it as a SUFRN) – under some circumstances. Just what those circumstances are remains a bit fuzzy, since the latest public notice fails to mention an important exchange between the Commission and the D.C. Circuit which shed considerable light on this very point.

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FCC Shorts Out Its Seal

Can the eagle survive?

 The FCC gets a lot of things right.  But not, apparently, the wiring in its own seal. Check it out:














Our friend Michael Marcus explains.

Those who share the outrage can tell the FCC here.

Introducing Rob Schill

Fletcher, Heald & Hildreth is pleased to announce that Robert J. Schill has joined us as Of Counsel.  Rob is a graduate of the George Washington University School of Law; he received his BA from Binghamton University (SUNY).

Rob comes to us from a telecommunications-focused government affairs firm, where he was Vice President of Law and Public Policy.  He’s also done time on the Hill, serving in the office of Senator Daniel Patrick Moynihan.  He has helped clients before Congress and a number of federal agencies (including the FCC) on a wide range of subjects, including wireline, wireless, geospatial, homeland security and related technology issues.  Rob also served as Executive Director of the Vehicle Traffic Information Coalition, an advocacy group formed by auto manufacturers and technology suppliers to advance the role of mobility technologies in transportation policy.

In his spare time, Rob volunteers at Martha’s Table, a non-profit operation serving the needs of local at-risk families, and coaches little league baseball on Capitol Hill.  An avid connoisseur of hoops, he professes to be awaiting the Knicks’ turnaround.

FHH welcomes Rob to the fold.  He can be reached at schill@fhhlaw.com or 703-812-0445.

Sticking To The Scrip: FCC Announces Near-Term Incentive Auctions

“Incentive Auction Incentive Program” could eliminate need for Congressional authorization

Proving yet again that where there’s a will, there’s a way, the FCC has announced that it is proceeding with incentive auctions “promptly”. This is noteworthy, of course, because Congress still hasn’t gotten around to authorizing the sharing of auction proceeds – and the conventional wisdom has been that, without such authority, incentive auctions were a non-starter.

So much for the conventional wisdom.

As outlined in a public notice, the Commission has devised a novel work-around: an Incentive Auction Incentive Program. Instead of promising broadcasters actual cash payments from auction proceeds in return for relinquishing their spectrum, the FCC will offer its own currency, “in the form of scrip”, which can then be redeemed for various “non-cash resources” already available to the Commission.

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FCLJ ISO Authors

Calling all would-be law review contributors – a respected publication is looking for YOU!

We here at CommLawBlog have been requested to post the following solicitation for articles to be published in the Federal Communications Law Journal.  Yes, we know that many of our readers (including lots of lawyers) aren't likely to be jumping at the chance to stare blankly at a computer keyboard for hours on end, waiting for inspiration to strike -- why, after all, even think about re-living (shudder) those all-nighters from your college years?  But a number of us here in the CommLawBlog bunker worked on the FCLJ back in the day, we're all FCBA members, and we have a soft spot in our hearts for the Journal.  Some of us have even written law review articles, and can say with a straight face that it can be a fun and rewarding experience.  Plus, there's always the chance that your article will get cited as a major influence in the next big communications case out of the Supreme Court!  How cool would that be!

So here's what the folks at FCLJ want you to know:  

Do You Want to Be Published in the Federal Communications Law Journal?

The Federal Communications Law Journal (FCLJ) of the Indiana University Maurer School of Law is now accepting submissions for its 64th volume. As the official journal of the Federal Communications Bar Association (FCBA), the FCLJ has over four thousand subscribers and is the oldest communications law journal in the United States. The FCLJ’s editors hope to publish pieces that relate to the following topics: broadcasting, cable, media ownership, cybersecurity & cyberwarfare, health & media, social networking, e-business, online privacy, spectrum, network neutrality, wireless communications, and current FCC regulations.  (Submissions are not limited to these topics, however.) If you have any questions about the submission process or if you would like to have your article, comment, book review, or speech considered for publication, please e-mail Jessica Berger, Senior Articles Editor, at fcljsae@indiana.edu.

In all seriousness, the FCLJ is a highly respected law journal whose contributors include many prominent names in the area of communications law. We are pleased to pass along to our readers the FCLJ’s notice.

Upcoming Appearances: Mitchell Lazarus - On Expediting FCC Approval Of New Technologies

Our colleague Mitchell Lazarus, having apparently worn out his welcome as a speaker with the local lawyers’ groups, has turned to the engineering profession in pursuit of fresh audiences.

On March 29, Mitchell will address the American Council of Independent Laboratories, an organization of laboratories that conduct FCC compliance testing (among other responsibilities). On April 6, he will speak to the Telecommunications Certification Body Council, consisting of companies authorized to issue certifications on behalf of the FCC. His topic on both occasions will be the roles of the respective organization members in expediting FCC approval of new technologies.


Tack Nail

Tack Nail died on Friday, March 25, 2011. Tack (real name: Dawson B – no period after the B, please) was a – no, THE – consummate journalist on the communications beat. It should not take you long to find obituaries, remembrances, tributes elsewhere, all detailing his extraordinary decades-long career, his unparalleled access to information, his dedication to accuracy, his wry wit, his generosity, his humility. There are plenty out there, and there will doubtless be more. There is neither time nor space enough to recount in one place all the memorable stories that have been and will be told of Tack.

Our primary purpose here is to note his death with sadness, to extend our heartfelt condolences to Tack’s family, and to mourn the loss of someone we counted, with profound gratitude, as a friend.

Upcoming Appearance: Net Neutrality Maven Paul Feldman To Address Internet Society Chapter

Looking for insight into the front-burner issue of net neutrality? Look no further: Fletcher Heald & Hildreth’s Paul Feldman is headlining a Net Neutrality Reception presented by the Greater Washington DC Chapter of the Internet Society (ISOC-DC). His presentation is titled “Exploring the Middle Ground of Net Neutrality”.  Also on the bill will be Michael Nelson, Visiting Professor in the Internet Studies Communication, Culture and Technology Program at Georgetown University.

Regular CommLawBlog readers will doubtless recall Paul’s previous posts chronicling and analyzing the conundrum that is net neutrality. (The rest of you can catch up by checking them out here and here and here and here and here.) Paul has also waxed eloquent on the same topic in a number of speaking engagements. 

The reception will be held on Thursday, January 20, 2011, beginning at 6:30 p.m. at the Hudson Restaurant & Lounge at 2030 M St. NW, Washington, D.C.  Complimentary reservations are required. Interested? Email the ISOC-DC at chapter@isoc-dc.org to get your name on the list.

For more information on ISOC-DC, please visit their website at http://www.isoc-dc.org/. Paul hopes to see you at the reception!

Catherine McCullough, Communicator

C-SPAN calls on CommLawBlog contributor

If you had the bad judgment to stick with the Saints-Seahawks game on Saturday of Wildcard Weekend, you may have missed our friend and occasional contributor, Catherine McCullough, who appeared on C-SPAN’s “The Communicators” program. Catherine was one of two former Hill staffers (and current lobbyists) discussing likely developments in telecom and technology policy in the 112th Congress. (If you did miss it, no worries – the whole 30-minute show is available at C-SPAN’s site.) Props to C-SPAN for its excellent judgment in bringing Catherine on.

Props, too, to Catherine for her useful insights. No surprise there, though – regular readers of CommLawBlog are accustomed to such insight from Ms. M. Check out her previous posts here, here and here.

And speaking of our readers, we couldn’t help but notice how the C-SPAN moderator set up his opening question of the program: “You wrote in a recent blog on CommLawBlog.com . . .” Hey, that’s us! Schweeet! Needless to say, we’re grateful for the shout-out, and we’re happy to be a go-to place for folks like C-SPAN who want to stay on top of developments in the law of communications.

Spotlight On: Jeff Gee, Media Darling

If you happened to be in the DC area on October 15 and switched on the local news on Fox 5, you probably saw FHH’s own Jeff Gee, who served the role of political broadcasting guru and savant (although the station chose the more modest title “Media Attorney” to flash on the screen) in a piece about political broadcasting. In case you missed it, here it is: 

Jeff was the obvious choice here. He regularly creates and conducts training programs for broadcasters to bring them up to speed on the nitty-gritty details of FCC regulations. And just a couple of months ago he presented a webinar on the ins and outs of political broadcasting to the Maryland-D.C.-Delaware Broadcasters Association. (Interested in having Jeff address your organization on the political rules? Contact us – he’s available.)

FHH Tops In Media Deals

According to SNL Kagan, recognized as one of the preeminent sources of financial analysis in the media business, Fletcher, Heald and Hildreth represented parties in 104 media deals in the first three quarters of 2010 – more than any other law firm. You’ve probably already read this elsewhere – like at RadioInk.com, or maybe InsideRadio.com, or Radio-Online.com, or AllAccess.com, or plenty of other places – but just in case you haven’t, check it out for yourself:


We’re pleased that, even in these difficult economic times, our clients have continued to thrive. And we’re proud that they have called on us to provide guidance and counsel in structuring their deals and navigating them through the regulatory process.

We congratulate our clients for their successes, we thank them for the confidence they have placed in us, and we look forward to providing the same quality representation to clients, old and new, that we have been providing for nearly 75 years.

FHH Lawyer Gets Ink

Our colleague Mitchell Lazarus has an article in the current issue of IEEE Spectrum magazine called “The Great Spectrum Famine.” This is his second appearance there in just over a year. If you are not one of the 400,000 people who receive the publication in print, you can read Mitch’s article here.

A New Fletcher Heald Website? Yes Way.

Fletcher Heald & Hildreth, P.L.C., has unveiled its new brand image and website. Check it out at www.fhhlaw.com.

The outside marketing consultants wanted us to issue a press release with all kinds of extravagant, eye-catching, ALL CAPS brags about cutting-edge this and state-of-the-art that. You know, like an ad for a RONCO product, but tasteful (because we are a law firm, after all).

No thanks.

We think the new website is slick, attractive, easy to navigate, informative, and all the good things that a law firm website should be. But deep down inside, it’s just a website. It introduces us, and lets you know who we are and what we can do.

You can read about each of our current team of lawyers and the firm’s history. (We’ve been around for 74 years, almost as long as the FCC itself.)   On the home page we’ve included interesting (we think they’re interesting) factoids about each of us. One factoid per view – just hit refresh to see a different one. Once you get started, it’s hard to stop – like eating peanuts.

It’s got nice photos of us all. We debated what the photos should look like. Should we pose in faux meetings or courtroom dioramas, looking brutally hard-nosed yet supremely reasonable? Should we emphasize our softer side, dressing up in recreational garb (wetsuits? cycling outfits? camo?)? Should we pose in non-office settings, looking tanned, rested, and ready? We went with down-to-earth, the way we really look. (Except in person we are in full color.)

The website has links to our blog and our informative publications, the Memo to Clients and FHH Telecom Law. The front page also includes the headlines from our most recent blog postings, in the unlikely event that you haven’t seen them elsewhere.

Oh, and you’ll notice right away that the motif is blue. Really blue. Our old site was predominantly purplish red. That was OK for the 1990s. Not any more. Some of us thought green was the way to go this time around. But we went with the blue.

So if you want to know about Fletcher Heald – or if you’re just curious about our new site – stop by and take a look. We’d like to know what you think. Unless you’re lobbying for green. That discussion is over. We’re sticking with blue.

Upcoming Appearances: Net Neutrality Maven Paul Feldman To Speak At OTTcon East

FHH’s Paul Feldman will soon be on the road again, speaking on Network Neutrality at OTTcon East in Atlanta on June 17.  OTTcon East is a conference focusing on “over-the-top” (OTT) services which rely on the Internet to deliver video content to the home.  (Think Internet-accessing game consoles, DVRs, disk players and the like, all of which permit content providers and consumers to by-pass traditional video service providers like cable.) 

Paul’s address (title: “Network Neutrality – Friend or Foe?”) will focus on – what else? – Net Neutrality.  In addition to providing an overview of the Commission’s 2005 Internet Policy Statement and its 2008 Comcast/BitTorrent Order, he’ll also address the FCC’s latest Net Neutrality proposals and related questions, including:

  • Would Net Neutrality rules help or hurt OTT video providers?
  • What impact, if any, will the proposed Comcast/NBCU merger have on Net Neutrality?
  • What impact, if any, will the FCC’s proposal to require Internet gateway set top boxes have on Net Neutrality?

The OTTcon event is dedicated to providing in-depth perspectives and critical analysis needed to address the challenges which OTT video pose for a range of traditional business models, such as those of pay TV operators, content owners, consumer equipment manufacturers, and over-the-air broadcasters.  For instance, among the featured speakers on June 16 will be:

  • Rick Ducey, Chief Strategy Officer of BIA/Kelsey, providing his take on the role of local broadcast TV in the development of OTT (sample grab: “adding free to air, local digital station into [the OTT] mix is becoming more attractive.”); and
  • Richard Yelen, Managing Director of Neulion, looking at the changing landscape of TV consumption and the pressure that is putting on cable, satellite and over-the-air providers to work OTT and IPTV into their distribution strategy.
  • Kevin Walsh, VP of Marketing for Zeugma Systems, getting technical about the “curse” of buffering of OTT video streams, which causes playback freeze-up.

More information about OTTcon East, including online registration, is available here.

Court Review Of Revised Form 323 Is Sought As Bureau Suspends January 11 Deadline

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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FHH On The Road: Paul Feldman In Florida (And On The Internet)

FHH member and noted Net Neutrality maven Paul Feldman recently appeared at the TM Forum’s Management World America Conference in sunny Orlando. He spoke at the Conference’s keynote event, “Hype vs. Reality: What is the Role of Deregulation in Delivering a 21st Century Digital World?” (That's Paul on the right in the photo to the left.) For those of you who didn’t make it down to Florida for the festivities, no problem – you can catch Paul’s 15-minute Q-and-A presentation on net neutrality by clicking on this link.

Kevin Brings the House Down

On December 16 FHH’s Kevin Goldberg testified before the Subcommittee on Information Policy, Census, and the National Archive of the House Committee on Oversight and Government Reform on the topic of “History Museum or Records Access Agency? Defining and Fulfilling the Mission of the National Archives and Records Administration”.

By all accounts – including Kevin's – the hearing went very well, with witnesses pressing the National Archives and Records Administration to do more to make government information available online and to process Freedom of Information Act requests in a more timely manner.

Kevin’s full written testimony – delivered on behalf of the Sunshine in Government Initiative and FHH client the American Society of News Editors – has now been posted to the Subcommittee's website. Check it out.

Kevin's In The House!

Kevin Goldberg To Testify Before House Subcommittee

FHH’s own Kevin M. Goldberg will be testifying before the Subcommittee on Information Policy, Census and the National Archives of the House Oversight and Government Reform Committee on Wednesday, December 16, at 2 p.m. 

The topic of the hearing is “History Museum or Records Access Agency? Defining and Fulfilling the Mission of the National Archives and Records Administration”. Kevin will be representing (a) the American Society of News Editors, an FHH client, and (b)the Sunshine in Government Initiative, a coalition of nine media organizations (including ASNE) dedicated to promoting open government. 

The hearing will be held in Room 2154 of the Rayburn House Office Building, if you’re in the Washington area. If you’re not nearby but would still like to catch Mr. G’s testimony, you can watch the hearing via live webcast on the Subcommittee’s website.

Check back after the hearing for a link to Kevin’s full written testimony.

FHH To FCC: "Stay"

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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Net Neutrality Hard To Enforce

FCC’s proposed rules good on paper, may do little in practice

The IEEE, a widely respected association of electrical engineers, posted the reflections of FH&H lawyer (and former engineer) Mitchell Lazarus on why the FCC’s proposed network neutrality rules may miss their target.  Read the piece here:


FH&H Lawyer Speaks Out

New-technology advocate talks about delays at the FCC

You have read the recommendations of our colleague Mitchell Lazarus, both for industry and for the FCC, on how to alleviate problems caused by long delays at the FCC in approving new technologies.

Now hear Mitch address the issues in his own voice, in a recent MyTechnologyLawyer.com interview with Andrew Kreig. Listen on-line or download.  Mitch’s two segments begin 18 minutes in. And if you want to put a face with Mitch’s voice, his photo adorns the interviewer’s blog (which hails Mitch as a “spectrum expert”).

Mitch is the second FHH attorney to be interviewed on MyTechnologyLawyer.com in recent weeks. Last month it was Kevin Goldberg, who expounded on sports credentialing and sports media. You can listen on-line to, or download, Mr. G as well.

Author! Author!

Our colleague Mitchell Lazarus is featured in the current issue of IEEE Spectrum magazine. His article, “Radio’s Regulatory Roadblocks – How FCC Red Tape Slows New Wireless Technologies and What To Do About It,” is now available at this link.

Upcoming Appearances: FHH On the Road Again!

If you’re planning on being in Indianapolis this coming weekend, be on the lookout for Kevin Goldberg, who will be speaking at the Association of Capitol Reporters and Editors 2009 Conference at the Hyatt Regency there.  Topic: legal issues affecting bloggers.  Kevin’s scheduled to take the mike at 10:45 a.m. on Friday, August 21. (Look for the session on “Blogging within the lines”.)

 Next month, Kevin will be speaking on legal issues surrounding sports credentialing at the National Press Club on September 16 at 10:00 a.m. And from 2:00-3:00 that afternoon, he’ll be participating in a National Press Club webinar entitled “Understanding the Shield Law: What journalists need to know for the upcoming Congressional debate”.


Upcoming Appearances: FHH On the Road Again!

On August 14-15, Frank Jazzo and Vince Curtis will be leading the “Washington Update” sessions at the New Mexico Broadcasters Association Convention 2009 in Albuquerque.

Also hitting the road in August will be Harry Martin, who will be appearing on a legal panel (“FCC Regulatory Update: Problems and Possibilities”) at the Texas Association of Broadcasters Annual Convention and Trade Show in Austin on August 20.

On September 25, Frank Montero will be speaking on a panel (“Convincing Capitol Hill: How to Effectively Petition Members of Congress”) at the NAB Radio Show in Philadelphia.

8th Floor Access Control

It looks like Chairman Genachowski is taking steps to get an early handle both on the procession of interested parties seeking to meet with him and on the issues that will be discussed in such meetings. When folks try to get an appointment to speak with him (or his staff) – in person or by phone – they are asked to provide a boatload of information about what’s on their minds before they can get themselves penciled into the Big Guy’s calendar. (This was recently reported by Comm Daily and comports with our own experience thus far in the young Genachowski regime.)

If you’d like to speak with the new Chair or his people, be prepared to hand over, in advance:

  • a description (two-three paragraphs should do the trick) of the “precise issues” you want to discuss;
  • a list of any pending Commission proceedings that are involved;
  • copies of any letters, handouts or pleadings that you may already have presented to anybody else in the Commission that “best set forth the issues you wish to discuss”; and
  • a list – with names and dates, thank you very much – of meetings you have had with other Commission personnel. Interestingly, the general expectation is that anyone wanting to see the Chairman will have already touched base with the “relevant” Bureau beforehand.

(You’ll also have to let them know whether you plan to talk about funding or policy issues under the Recovery Act, and if so, whether a registered lobbyist will be along for the ride. Such information is required to comply with the Recovery Act.)

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It's Easier Than Ever to Follow CommLawBlog

No matter where you are, no matter what you're doing, there's now no excuse for missing a new post to CommLawBlog.  Because some people think that just having a blog is, like, so 2003, we've set up Facebook and Twitter accounts so that you'll never be out of the loop.

That's right, this thing is going to be viral (the good kind, not the hack-into-your-computer kind.  Our mantra: for good, not for evil).

Follow us on Facebook here.

Follow us on Twitter here (@CommLawBlog)

We'll update both sites when there's a new post or when other interesting stuff happens or is about to happen, including where you'll find your favorite Fletcher, Heald & Hildreth, P.L.C. attorneys on the road, in the media or otherwise doing interesting things relating to communications and media law and policy.

Upcoming Appearances: Jeff Gee and Scott Johnson

Want to touch base with FHH lawyers up close and personal? Coming up on the travel schedule:

  • On August 8, Jeff Gee will be speaking at the West Virginia Broadcasters Association Annual Greenbrier Meeting at the Greenbrier Resort Hotel in White Sulphur Springs, WV.
  • On August 14-15, you can catch Scott Johnson in Columbia, SC, as the South Carolina Broadcasters Association gets together at the Columbia Metropolitan Convention Center in connection with the STAR Awards Dinner and Ceremony.

FHH Forms Broadband Stimulus Group

Fletcher Heald & Hildreth, LLC, has formed a Broadband Stimulus Group to assist prospective applicants seeking to participate in the Broadband Initiatives Program (BIP) and/or the Broadband Technology Opportunities Program (BTOP). Those programs are being implemented by the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) as part of the American Recovery and Reinvestment Act of 2009 (dubbed the Stimulus Package by many). As outlined in a Notice of Funds Availability (NOFA) released in early July, $4 billion in funding is being distributed in the current round of funding. The application window for grants or loans in that round opens July 14 and closes August 14.

The FHH Broadband Stimulus Group is comprised of 11 FHH attorneys familiar with the NOFA process and the broadband technology issues which must be addressed in that process. They kept a close eye on the Congressional deliberations that led up to the enactment of the Stimulus Package, and they have tracked the progress of the NTIA and RUS activities in this area since the Stimulus Package was signed into law. They are familiar with the particular areas likely to spell the difference between success and failure in the application process, and they stand ready to provide advice and assistance to applicants who want to take advantage of the opportunities which the BIP and BTOP offer. FHH Broadband Stimulus Group members also have extensive familiarity with Federal Acquisition Regulations (FAR), the system of rules and policies which underlies government funding activities.

Established in 1936 – one year after the Federal Communications Commission commenced operation – Fletcher Heald & Hildreth has served the telecommunications industries with valuable insight, guidance and counsel for more than 70 years. The members of the FHH Broadband Stimulus Group have a combined total of more than 200 years of practice experience in the highly specialized field of communications law and regulation. With extensive connections throughout relevant governmental offices, Group members will have access to the most up-to-date information necessary to formulate plans and strategies for the most effective navigation of the BIP/BTOP process.

Members of the FHH Broadband Stimulus Group include: Donald Evans; Joseph Di Scipio; Tom J. Dougherty; Paul Feldman; Jeffrey Gee; Scott Johnson; Mitchell Lazarus; Francisco Montero; Lee Petro; Raymond Quianzon; and Kathleen Victory.

F-Bombs Sweep Doubleheader

FHH rallies in first game, surges through second game to preserve undefeated status

It was a great night for softball, and a night for great softball, as the FHH Bombs (a/k/a the Rockets, a/k/a the Fleeting Expletives) rocked the Jake at American University by sweeping a doubleheader and preserving their undefeated record.

As the F-Bombs took the field for the first time this season in the evening opener against the Wiley Coyotes, it was obvious that dust and rust had built up in the off-season.  By the middle of the third Wiley held a 9-0 lead.  But out came the Dustbuster and the Rustoleum in the bottom of the third, when the Bombs exploded for 10 runs, grabbing the lead which they would not relinquish.  The Expletives’ defense came alive along with their bats, holding the Coyotes scoreless in the top of the fourth and giving the offense a chance to tack on three insurance runs in the bottom.  Wiley rallied for two in the fifth, but air-tight D left them on the outside looking in.  Final score: 13-11 Bombs.

But the evening wasn’t over yet.

Next up was NCTA.  Even though one fewer Bomb was on the field (a starting Bomb got sidelined by yanking a hammy trying to stretch a single into a single in the opener), the Big Mo from Game One rolled into Game Two.  A Shock-and-Awe bombardment put seven Rocket runs on the board in the top of the first, with another in the second for good measure before NCTA managed to eke out a single tally of its own.  The Bombs got that one back in the third, and while the Cable Guys put three up in the third, that was all she wrote for them.  The Bombs added two runs in both the fourth and the fifth.  With two unassisted put-outs (out of a total of seven for the game) in the bottom of the fifth, the Expletive defense cut the cable on NCTA.  Final score: 13-4 Bombs.

The Fleeting Expletives are now 3-0 on the season (having nailed their initial W by forfeit last week).

Next game: Tuesday, June 30, 7:00 p.m. at the AU Jake against Mintz Levin.  

Go Rockets!!!

Technology Procurement Transactions: Some Practical Tips

If you’re the person in your organization responsible for buying sophisticated software-controlled products – for example, corporate phone systems, advanced medical devices, call center technology – you routinely face a host of complex considerations. In most such cases (which I refer to as “technology procurement transactions”), the products are not purchased off the shelf; rather, they tend to be customized to address the buyer’s peculiar needs. 

But no matter what unique customization features any particular acquisition entails, it is important to recognize that certain issues and concerns tend to bridge and apply to virtually all of these transactions. 

When you negotiate the acquisition of virtually any sophisticated software-controlled product, you should keep in mind the following issues which tend to be common across a vast range of such deals:

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Welcome Back, Tom Dougherty!

Thomas J. (Tom) Dougherty, Jr., has returned to Fletcher, Heald & Hildreth after a 15-year hiatus during which he practiced in the communications, transactions and outsourcing teams of Kilpatrick Stockton and Gardner, Carton & Douglas. A communications law veteran with more than 25 years' experience, Tom may not have done it all, but he’s done most of it. Secondary market licenses? He’s negotiated many, including EAS lease agreements for both EBS licensees and Sprint Nextel. Buying and selling all manner of communications properties? Done that, too, often using tax-minimizing structures. Franchise and telecom right-of-way agreements on the cable side? Sure enough. On the telecom side, he’s represented both carriers and enterprise users in the procurement of telecommunications services and associated products. And Tom has also represented companies in sophisticated outsourcing and technology procurement transactions.

Tom is a Denison University graduate. He received his law degree from Catholic University, where he served on the editorial board of the law review.

FHH welcomes Tom back!


Memo to Clients Crossword Puzzle Solution

The November issue of FHH’s Memo to Clients featured the annual FCC-themed crossword puzzle (title this year: “Calls of the Wild”). While this year’s MTC Puzzle Maven Skip Pizzi made short work of it (rocking in with a completed grid almost before we had sent the puzzle out), others may have encountered more difficulties than Skip. For them we offer the solution. Just click on the “continue reading” link below.

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We Have A Wiener!!!

As you may know, the November issue of our Memo to Clients has, for the past several years, included an FCC-themed crossword puzzle, and this year was no exception. The issue was shipped out the day before Thanksgiving, and lo and behold, the following Tuesday we received word that one of our faithful readers had successfully completed this year's puzzle. So let’s give it up for Skip Pizzi, media technology consultant extraordinaire, frequent author and editor, NPR vet and all-around tech guru. Congrats, Skip, you’re this year’s MTC Puzzle Maven.

He's Number One!

You think you have what it takes to be a great attorney?  Well, our own Scott Johnson probably has you beat.  Scott  was recently honored by the University of Alabama for obtaining FCC approval to relocate the University's television station antenna, a move which increased the station's over-the-air coverage more than ten-fold.

 Scott Johnson (holding the football), flanked by University of Alabama Deans and Assistant Deans

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Elvis has left the building

The Rockets' magic number is 2008.

Last night, the F-Bombs fell to earth in the quarter finals of the League Tournament, losing a back-and-forth slugfest with the top-seeded Fedsox, 12-10 (or 16-10, if you include the four runs that were scored in the last partial inning).

To get to the quarters, the Rockets first had to meet Mintz Levin in the play-in round. They took care of that chore handily, 15-12. While Mintz (who beat our Beloved Bombs in their first meeting this season) came up with three in the first and two in the second, the Bombs matched them in the first and went one better in the second. And then the fun began. After holding Mintz scoreless in the top of the third, the Rockets pushed five across in the bottom, bringing the score to 11-5. Mintz managed one in the fourth, but back came the Rockets with four more, giving them a comfortable 15-6 edge. Mintz tried to make it a game in the fifth with a six-run rally, but it wasn't enough.

After a five-minute break to savor their victory, it was on to the Fedsox and let's win there. And what a game it was. The Rockets could manage only one run in the first, while the Sox scored four. By the end of two it was 6-1, Fedsox. But then the Rockets took off, scoring five and tying it up in the top of the third, only to have the Sox answer with three of their own. Bloodied but unbowed, the Rockets returned fire in the top of the fourth with four more runs to take the lead, 10-9. As darkness fell on the field, the Sox managed three runs in the bottom of the fourth. In the partial fifth (called because of darkness), the Sox scored four more.

Congratulations to the Rockets/Bombs on a great season. Let's do it again next year!!!


Fedsox Drop Bombs, 13-6; Bombs Catch Crabs in Nightcap

It wasn't the heat, it was the humidity - no, wait, it was the heat, which hovered in the triple digits as the FHH Rockets took the field at the Jeff for a doubleheader, facing the Fedsox in the first game and the Davis Wright Crabs in the second.  Field conditions at game time were hothothot, and so were the Bombs.

The Sox put three across in the top of the first, but FHH answered with five of their own in the bottom.  Then, in a sparkling show of defensive mastery, the Bombs held the Fedsox scoreless in four innings.  Unfortunately, they played a full seven-inning game.  Aggressive Fedsox offense coupled with Rocket misfires put the Bombs in a 13-5 crater at the end of four.  The Rockets managed to plate one more run in the fifth, but could not find the keys to the Hit-mobile in the last two.  Final score, Fedsox 13, Rockets 6.

Then came the nightcap against the Crabs, a perennial powerhouse.  Showing no signs of wear and tear from the seven innings they'd already played, the Bombs grabbed a 1-0 lead after one, but the Crabs answered with one in the top of the second.  After three it was 3-1 Crabs, and after the top of the fourth the lead had grown to 8-1.  But the Rockets took off in the bottom of the fourth with a seven-run rally that knotted the score at eight apiece.  The Bombs defense clamped down yet again in the fifth, denying the Crabs one last time.  But by the bottom of the fifth, the Hit-mobile was out of gas, and the Bombs had to settle for a tie as darkness set in.

Next week the Rockets (whose record now stands at 3-4-1) face off against Dow Lohnes (1-3-1) on Wednesday, August 15, at 7:00 p.m. at the Jeff.

Go, Rockets!!!


FHH Bombs disarmed at last minute

The temperature on the field was in the mid-90s, the average age of the other team appeared to be in the mid-20s, and a number of the Rockets had seen their best on-field years back in the mid-80s.  The signs were not good as the FHH Bombs took the field last night at the Jeff to face the Media Bureau.

But in a game that had to be seen to be believed, the Rockets shook off Media's shock-and-awe first inning performance (reaching the nine-run maximum), clamped down on defense, and eventually found their hitting shoes.  Despite creaky wheels and leaky gloves which plagued them in the early innings, the Bombs made it an incredibly exciting game.

At the end of the first, Media was (were?) up, 9-2.  The gap widened to 13-2 in the second, but then the Bombs started ticking.  By the end of four it was 17-11 Media, but six Rockets tallies in the top of the fifth tied the game.  Media put four across in the bottom of the fifth and two in the sixth, giving them a six-run lead heading into the last.  The Bombs scored three times and, with two runners on, had the tying run at the plate when their luck ran out.

The Rockets' record is now 3-3.

Next week on Wednesday, August 8, they play a doubleheader at the Jeff, facing the Fedsox in the first game at 6:00 and then David Wright (formerly the Crabs) in the back end.

Go, Rockets!!!


F-Bombs Blast Wilkinson

The Rockets brought in the heavy artillery last night at the Jeff.  With a hit barrage that started at the top of the first and peaked in the top of the last, the Bombs pushed 22 runs across the plate, beating Wilkinson Barker 22-10.

Sending 12 batters to the plate in the first, the Bombs jumped out to a 6-0 lead and didn't look back, even when the WB's started to close the gap by the fourth.  But in the top of the fifth, the F-Bombs fired up the afterburners as 15 Rockets stepped up to the plate and 12 of them scored.

Complementing their no-prisoners offense was the Bombs' Tenacious D, which kept the wheels on the bus and allowed Wilkinson to score no more than three runs in any inning.

The F-Bombs are now 3-2 on the season.  Next week they take on the Media Bureau on Thursday, August 2 IN THE EARLY GAME - 6:00 p.m. - at the Jeff.  We'll see you there.

Go, Rockets!!!


Rockets spike Warren Communications

It was like Top 40 radio all over again last night at the Jeff, as the hits just kept on coming for the Fabulous F-Bombs in a 14-6 romp over Warren Communications.  In four innings the Rockets sent 30 batters to the plate.

Meanwhile, the Bombs displayed defensive stinginess worthy of Scrooge McDuck.  Sparkling glove work in the infield and the outfield kept WC runners off the bases and off the scoreboard.  Even when Warren loaded the bases with nobody out in the fourth, the Rockets kept the wheels on the bus and gave up only three runs.

Next week the Rockets will target Wilkinson Barker on Thursday, July 26, at 7:00 p.m. at the Jeff.  We'll see you there.

Go Rockets!!!


Bombs Misfire

On a gorgeous summer night, the FHH Rockets and Wiley Rein Coyotes went toe-to-toe for three innings of gorgeous softball.

Unfortunately for the Bombs, they played a five-inning game.

In the top of the first, the Bombs exploded with a barrage of hits. Nine Rockets batted, sending runners scampering around the bases in vivid demonstration of how the FHH Fleeting Expletives got their latest moniker. The Coyotes squeezed out three runs, but at the end of one FHH led 4-3. The seesaw dipped in the second, as WRF put five across to FHH's two. Score - 8-6. It was still a game after three, although the Coyotes were pulling ahead, 12-7.

And then the wheels came off.

In the fourth the F-Bombs went scoreless while the Coyotes went to town, plating nine runs (including a very impressive - and impressively dispiriting - over-the-fence grand slam homer) to seal the deal. In the top of the fifth, with their backs to the wall, the Rockets put together a two-run rally, but it was way too little way too late. Final score: WRF - 21, FHH-9.

Bloodied but unbowed, the F-Bombs have the rest of the week off to recuperate. They face off against Davis Wright Tremaine (the former Crabs, last year's league champions) on Wednesday, July 11, at 7:00 p.m. at the Jeff. The Rockets are looking for an upset. Be there to cheer them on.

Go Rockets!


Bombs Fall at the Jeff

The FHH Rockets (aka F-bombs) showed up at the Jeff last night hungry for their first on-field victory of the 2007 season, but as it turned out, Mintz meat was not on the menu. The Rockets fell to Mintz Levin, 14-6.

Cobwebs and rust were the story of the night for the Bombs. Occasionally spotty defensive work allowed the Mintzers to plate four runs in the first and third and three in the second and fifth. And while the Rockets showed considerable power at the plate, a number of screaming line drives - doubtless run-producing under different circumstances - were snagged by Mintz fielders before they could do any damage.

Although last night's result was disappointing, the Rockets showed plenty of potential. At 1-1 on the season (they won last week by forfeit), the Bombs will head to the Jeff next Monday, July 2, at 7:00 p.m. to face Wiley Rein.

Go Rockets!