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In-Flight and On-Line: FCC Proposes Domestic Air-to-Ground System for Airborne Wi-Fi

Posted on May 10, 2013 by Jon Markman

Antennas would use directional pointing rules to avoid interfering with satellites.

The FCC is looking to expand the use of wireless services, particularly in-flight Wi-Fi, on aircraft traveling over the contiguous United States. In a Notice of Proposed Rulemaking (NPRM), the FCC has proposed the establishment of a new air-ground mobile broadband service in the 14.0-14.5 GHz band.

The proposal was first advanced by Qualcomm, which hopes to augment the recently authorized (just last December) satellite-based connections to aircraft with a nationwide network of air-to-ground stations that would allow plane passengers to connect more easily and cheaply to the Internet. Unlike satellite connections (which work anywhere), the new system would work only while the plane is in U.S. airspace. The FCC sees – and wants to accommodate – the growing demand for in-flight Internet access, while increasing competition, improving service, and lowering prices.

The proposed service poses potentially difficult technical issues.

Tags: 14.0-14.5 GHz, Internet, Internet in airplanes, Qualcomm, Wi-Fi in airplanes, air-ground mobile broadband service

Jailhouse Block (Reprise): FCC Looks to Ban Burners from the Big House

Posted on May 6, 2013 by Cheng-yi Liu

FCC proposes rule changes to help combat contraband cell phone usage in correctional institutions.

If The Shawshank Redemption had been set in 2013 rather than 60 years or so earlier, this prison-yard exchange between inmates Andy Dufresne and Red would probably go something like this:

Andy: I understand you're a man who knows how to get cell phones.

Red: I'm known to locate cell phones from time to time…but what would you want one for, Andy, to update your Facebook status?

The problem of contraband cell phone use in correctional institutions for social media status updates is very real. And while inmate status updates or video posts might be somewhat amusing – especially if they involve an organized flash mob(ster?) or this rendition of Michael Jackson’s Thriller – authorities are evermore concerned that contraband cell phones are being used by inmates for far more nefarious, criminal purposes.

In a recent Notice of Proposed Rulemaking (NPRM), the FCC is exploring regulatory approaches for reducing contraband cell phone usage in correctional institutions.

Why can’t prisons just “jam” the contraband cell phone signals, you ask?

Tags: Cell phone jamming, Cell phone use in prison, Cellular, Detection systems, Enforcement Activities (Fines, Forfeitures, etc.), Internet, Managed access systems, Wireless Telephony

FCC Proposes Rule Changes for Obtaining Telephone Numbers

Posted on April 23, 2013 by Cheng-yi Liu

Interconnected VoIP providers may soon have direct access to numbering resources, and the significance of area codes could become a thing of the past.

Have you ever wondered where telephone numbers come from? Well, kids, there’s this bird called a stork that delivers the numbers to your phone company which is very happy to receive them…

If only it were that simple.

Telephone numbers aren’t just made up by the phone companies. There are complex rules and processes (and history) involved in determining where numbers are assigned geographically, which sequences of numbers can be assigned, and which companies are ultimately allowed to have access to the numbers. Of course, these processes ultimately involve the FCC, which has authority over all telephone numbers in the U.S.

In a recent release containing a Notice of Proposed Rulemaking (NPRM), Order and Notice of Inquiry (NOI) the FCC is looking to make some changes to how telephone numbers are obtained by certain types of providers and, eventually, the fundamentals of what we understand a telephone number to represent.

Unfortunately, no, the FCC still doesn’t have a way to make telephone numbers magically immune from robocallers.

In the near-term, rules proposed in the NPRM (if adopted) would allow interconnected VoIP providers to have direct access to telephone numbers instead of having to obtain them through carriers. The NPRM seeks comment on this proposal and the associated issues. To test out its proposals and gather data, the FCC’s Order is allowing certain interconnected VoIP providers – including, specifically, Vonage – to have direct access to telephone numbers as part of a limited trial.

For the long-term, the FCC is seeking, through the NOI, comment on various issues related to whether telephone numbers should be disassociated from specific geographic locations.

In other words, in the future area codes such as 212, 305, and 404 might not be tied specifically to Manhattan, Miami and Atlanta… but more on that a little later.

Tags: Cellular, Internet, Telephone numbers, VoIP, Voice over Internet Protocol, Vonage, Wireless Telephony, Wireline Telephony

Aereo Update: Next Stop, En Banc?

Posted on April 19, 2013 by Kevin Goldberg

Broadcasters ask full Second Circuit to review panel’s decision allowing Aereo to continue to operate pending trial of infringement claim

We told you the Aereo saga wasn’t over.

Having lost the most recent (but certainly not the last) round in their litigation war with Aereo, the broadcast plaintiffs have filed a “petition for rehearing en banc” with the U.S. Court of Appeals for the Second Circuit. In that petition, the broadcasters are asking the full 13-member court to review the 2-1 decision of a three-judge panel that affirmed a lower court ruling allowing Aereo to continue to operate while the trial of the case moves ahead.

[Before we get into the nitty-gritty of the petition, let’s take a brief introductory side trip into the world of appellate procedure. Each of the 13 federal courts of appeals consists of between six (in the First Circuit, covering New England) and 29 (in the Ninth Circuit, which sprawls across nine western states and a couple of territories) judges. When an appeal is filed, it is normally heard by a panel consisting of three judges from the particular circuit court where the appeal is filed.

After the panel issues its decision, if the losing party believes that that decision was wrong, the loser has three options. It can ask: (1) the three judges to re-think their disposition of the case; (2) all the judges in the circuit, sitting “en banc”, to review the panel’s decision; or (3) the Supreme Court to look the case over. Supreme Court review is usually the longest of long shots. Similarly, since the panel has just deliberated over the issue and come up with the result at hand, it’s usually a pretty good bet that the panel won’t be eager to reverse itself. But en banc review brings a bunch of different judges into the mix, so it presents at least some source of hope to the party unhappy about the panel decision.

But the rules are set up to make en banc review hard to get.

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

Posted on March 29, 2013 by FHH Law

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

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

Tags: 10.95-11.2 GHz, 11.45-11.7 GHz, 11.7-12.2 GHz, 4.0-14.5 GHz, Deadlines, ESAA, Earth Stations Aboard Aircraft, FSS, Fixed Satellite Service, Internet, Internet service on aircraft, Internet-on-Airplanes, Wireless Telephony

Will ivi Wither on the Vine?

Posted on March 20, 2013 by Kevin Goldberg

Supreme Court rejection may be the end of the road for the upstart, Internet-based MVPD wannabe.

It looks like the Supreme Court may have dumped a final, fatal treatment of Roundup on ivi, Inc. In a standard nine-word order (“The petition for a writ of certiorari is denied.”), the Supremes unceremoniously rejected ivi’s last-gasp effort to get out from under the preliminary injunction imposed by the federal District Court in NYC two years ago. As a result, ivi is still barred from operating in the Second Circuit, and its future prospects are decidedly dim.

We’ve reported on several occasions on ivi. It’s one of a handful of companies seeking to revolutionize television viewing by making broadcast signals available to viewers via the Internet. ivi’s approach involves a liberal interpretation of the Copyright Act that would allow it to stream television programming directly to your computer, tablet or smartphone.

ivi claims that its Internet-based streaming operation is the equivalent of a cable system as defined in Section 111 of the Copyright Act. Under that theory, it has argued that it’s entitled to retransmit broadcast programming without the prior consent of the broadcasters as long as it pays applicable copyright royalties. The broadcast industry has disagreed, naturally; in 2010, even before ivi started operation, broadcasters peppered ivi with cease and desist letters. Undaunted, ivi went on the offensive, filing a lawsuit in the U.S. District Court for the Western District of Washington seeking a declaratory judgment that ivi is a cable system under the Copyright Act. The broadcasters promptly countered with their own suit (alleging copyright infringement) in New York.

ivi’s Washington case was tossed by the judge there in January, 2011. The following month, the broadcasters convinced the judge in the New York case to preliminarily enjoin ivi from operating pending the outcome of the case. ivi appealed that ruling to the Second Circuit, to no avail. In its trip to the Supreme Court it was trying to get the Supremes to lift the injunction.

Update: Rural Microwave Flexibility Policy Now In Effect

Posted on February 1, 2013 by FHH Law

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

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

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

Tags: Backhaul, Cellular, Deadlines, Internet, Rural Microwave Flexibility Policy, Wireless Telephony, Wireless backhaul

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

Posted on January 24, 2013 by Kevin Goldberg

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

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

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

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

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

FCC Demonstrates Principle of Conservation of (Regulatory) Energy

Posted on January 17, 2013 by Cheng-yi Liu

Law of physics, FCC-style: Energy expended on international telecommunications reporting requirements must apparently remain constant

Providers of international telecommunications services may be happy to learn that the FCC has reduced or eliminated requirements to report data on international traffic, revenue and circuits. Sort of. By consolidating Sections 43.61 and 43.82 of its rules into a single rule (Section 43.62), the FCC claims in the public notice touting its Second Report and Order (2nd R&O) that it will “eliminate” international traffic and revenue reporting requirements for over 1,000 reseller carriers. (Facilities-based service providers should get a few breaks, too, but we won’t cover them in detail here.)

But there’s a catch (or two, or three, or four. . .) to the Commission’s broad claim of deregulation. As it turns out, the elimination/reduction of reporting requirements is balanced out by a raft of new requirements which effectively restore the equilibrium of regulatory burden because, presumably, to do otherwise might violate the laws of physics and destroy the universe.

What new requirements are involved?

First, all entities that either (a) have an International Section 214 Authorization or (b) provided any international services in the prior year will have to file a “Registration Form” and a “Services Checklist” annually by July 31. Previously, only common carriers that actually provided international services had to file anything. (This means that all holders of International Section 214 Authorizations must now file something each year. Before, by simply not providing telecommunications services, companies could obtain and retain such authorizations without necessarily triggering additional filing requirements.)

The new Registration Form shouldn’t create a huge burden. In addition to soliciting basic name/address information and a certification, it also requires a list of a filer’s International Section 214 Authorizations and cable landing licenses. Doesn’t the Commission – which granted such authorizations in the first place – already have all this information in its databases, you ask? Yes, but according to the FCC, requiring companies to report these data “will serve as a valuable check on our own records, ensuring that the filers’ records and our records agree.”

The new Services Checklist, which consists of a list of seven check boxes (two of which include two separate sub-boxes each) also seems fairly tame, for an FCC required form. Reporting entities simply designate the categories which apply to their services; entities which provided “International Communications Services Resale” (ICS Resale) and “International Miscellaneous Services” during the reporting period must indicate whether or not such services generated over $5,000,000 in revenue in the prior year.

Simple so far.

Tags: Cellular, Facilities ICS providers, ICS resale providers, Interconnected VoIP providers, International Communications Services Resale, International Miscellaneous Services, International Traffic and Revenue Reports, International telecommunications services, Internet, Registration Form, Second Report and Order, Services Checklist, Wireless Telephony, Wireline Telephony

113th Congress: Cooperation and Convergence?

Posted on January 8, 2013 by FHH Law

(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.

Tags: 112th Congress, 113th Congress, Broadcast, Cable, Catherine McCullough, Cellular, Convergence, Convergence and cooperation, DCI Group, FHH, Internet, Satellite Radio, Wireless Telephony

Judge Puts the Cuffs on AereoKiller

Posted on January 3, 2013 by Kevin Goldberg

Disagreeing with the Second Circuit, a district judge in the Ninth Circuit has enjoined Aereokiller from transmitting its opponents’ over-the-air programming.

Remember Aereo, the Barry Diller-backed startup seeking to revolutionize the way we watch television? (Hint: It’s the video delivery service that uses rooms full of dime-sized antennas, each assigned to a different subscriber, enabling said subscriber to watch broadcast television via any mobile, Internet-based device.) As we reported last summer, Aereo won a key legal battle in New York in July, when a federal judge OK’d the continued provision of Aereo’s service at least temporarily. (Technically, the judge refused to issue a preliminary injunction requiring Aereo to shutter its service while it’s being sued by a number of broadcasters claiming that the Aereo service infringes their copyrights.)

You may also recall Alki David, the owner of several services providing online distribution of over-the-air television (and other) programming. The most relevant for our purposes are FilmOn.com and Aereokiller.

David’s Aereokiller service seems to have drawn inspiration (not to mention its name) from Aereo’s service. While not absolutely identical to Aereo, Aereokiller rests on the same general technology and the same basic legal principles as Aereo. (In its court filings, Aereokiller argues that it is not only technologically analogous to Aereo but, in fact, “better and more legally defensible”). And further highlighting the influence of Diller’s Aereo service on David’s Aereokiller service, the latter was originally launched via a website found at www.barrydriller.com (though it has now migrated to David’s FilmOn.com site and is available via an Aereokiller app); it appears to be operated by the David-owned “Barry Driller Content Systems, PLC”. At least I think I’ve got that corporate structure right (there’s clearly a lot going on here).

In any event, it’s easy to suppose that David may have Aereo and Barry Diller in his sights, at least competitively. But a recent decision by a federal judge in Los Angeles could deep-six both Aereokiller and Aereo: Judge George Wu from the United States District Court for the Central District of California has issued a preliminary injunction against at least some aspects of Aereokiller’s operation.

FCC Boots Up Internet Service in Airplanes

Posted on December 31, 2012 by Mitchell Lazarus

New rules allow airlines to obtain an Internet connection for their passengers via satellite.

A recent FCC action will make it easier to read CommLawBlog on board an aircraft.

Wiring up an airplane for Wi-Fi is relatively easy. The hard part is getting a wholesale Internet connection to and from the aircraft that is adequate to serve dozens of on-board users simultaneously. One obvious answer is a broadband radio connection from the ground, but that has a downside: due to its high vantage point, the aircraft ties up frequencies over a very wide geographical area. So the airlines and their Internet-provider partners have been looking up rather than down – satellite service could do the job.

The FCC has now adopted technical and licensing rules that will allow earth stations installed on aircraft to communicate with Fixed-Satellite Service (FSS) spacecraft in geostationary orbits, using 14.0-14.5 GHz for uplinks, and 10.95-11.2, 11.45-11.7, and 11.7-12.2 GHz for downlinks. The new service will be called “Earth Stations Aboard Aircraft” (ESAA). Antennas on board the planes will have to maintain a sufficiently accurate bead on the satellite so to avoid causing interference to adjacent satellites in orbit. The FCC has been authorizing a similar service on an ad hoc basis since 2001, and evidently feels the technology is now sufficiently mature to permit routine licensing.

ESAA follows earlier rule changes that allowed the installation of FSS antennas first on ships, and then on vehicles. In the FCC’s view, the adoption of ESAA is the logical next step in that progression. Oddly, though, the “F” in FSS continues to stand for “Fixed,” even as the FCC authorizes the service for increasingly mobile applications. Although there is also a separate Mobile Satellite Service, its technical characteristics are not well suited to multi-user broadband delivery.

Tags: 10.95-11.2 GHz, 11.45-11.7 GHz, 11.7-12.2 GHz, 4.0-14.5 GHz, ESAA, Earth Stations Aboard Aircraft, FSS, Fixed Satellite Service, Internet, Internet service on aircraft, Internet-on-Airplanes, Wireless Telephony

Incognito Incentive Auction Input Encouraged

Posted on December 19, 2012 by Harry Cole

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

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

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

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

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

Tags: Anonymous comments, Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Wireless Telephony, auctions

Court Upholds FCC Role as Data Roamin' Umpire

Posted on December 12, 2012 by Mitchell Lazarus

But the opinion may indirectly threaten survival of the FCC’s “network neutrality” rule

The FCC can require mobile data providers to offer roaming arrangements, says the U.S. Court of Appeals for the D.C. Circuit. But in so ruling (in a case titled Cellco Partnership v. FCC), the court may have threatened survival of the FCC’s network neutrality rules. We’ll come back to that.

“Roaming” arrangements make it possible to use your cell phone outside your own provider’s service area. We take it for granted that a cell phone will work anywhere in the country, and usually it does. If your own provider has a tower in the vicinity, it will take the call. Otherwise, one of the local cell companies will handle the call and send the bill to your provider, which (of course) will pass the bill on you.

As to voice calls, the FCC has required roaming capabilities since the dawn of the cell phone era. No one questions its authority over voice-call roaming. But the FCC’s jurisdiction over roaming for mobile data usage – such as email, Facebook, and web browsing on smartphones and tablets – has been a matter of debate, at least until this court ruling.

Why the difference? After all, voice calls are transmitted in digital form. The technologies for handling voice and data are very similar. Why would anyone think the regulatory schemes might be different?

The answer: common carriage.

Tags: Cellco Partnership, Cellular, Common carriage, Common carrier, Data roaming, Internet, Net neutrality, Roaming, U.S. Court of Appeals for the D.C. Circuit, Verizon, Wireless Telephony, Wireline Telephony

Update: Incentive Auction Comment Deadlines Extended

Posted on November 29, 2012 by FHH Law

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

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

Posted on November 27, 2012 by FHH Law

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

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

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

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

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

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Inside the Incentive Auction NPRM, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

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

Posted on November 26, 2012 by FHH Law

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

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

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

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

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

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Inside the Incentive Auction NPRM, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

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

Posted on November 26, 2012 by FHH Law

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

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

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

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

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Inside the Incentive Auction NPRM, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

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

Posted on November 25, 2012 by FHH Law

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

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

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

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

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Inside the Incentive Auction NPRM, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

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

Posted on November 23, 2012 by FHH Law

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

Hint: Maybe fewer folks than you might have thought.

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

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

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

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

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Inside the Incentive Auction NPRM, Internet, Payroll tax cut extension, Reverse auction, Section Class Tax Relief and Job Creation Act of 2012, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

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

Posted on November 21, 2012 by FHH Law

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

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

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

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

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

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

Tags: Broadcast, Cellular, Deadlines, Forward auction, Incentive auction, Inside the Incentive Auction NPRM, Internet, Middle Class Tax Relief and Job Creation Act of 2012, Payroll tax cut extension, Reverse auction, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

DIRS Activated as Hurricane Sandy Makes Landfall

Posted on October 29, 2012 by FHH Law

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

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

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

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

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

Tags: Broadcast, Cable, Cellular, DIRS, Deadlines, Disaster Information Reporting System, Disaster preparedness, Disaster-related communications, Hurricane Sandy, Internet, Wireless Telephony, Wireline Telephony

Congressional Resolution to Copyright Disparities Sometime Soon?

Posted on October 2, 2012 by Kevin Goldberg

Dueling bills to modify calculation method for some royalties could level the playing field among music media . . . or not.

Most people don’t think about how copyright royalties are calculated – they just think that whatever they’re paying (or receiving) is too high (or too low). That’s true regardless of who you are or what you pay.

The recording industry thinks that recording artists don’t get enough compensation for their copyrighted works – especially from broadcasters who have always enjoyed a full exemption from paying royalties for over-the-air performance of sound recordings (i.e., the version of a song you’re actually hearing at that particular moment).

Each of the various services that provide recorded music to the public – broadcasters , stand-alone Internet radio operators and even Sirius XM – seems to believe that they’re getting a raw deal compared to the way the other such services are treated. For instance, Sirius XM doesn’t like that they have to pay for all their transmissions – both via satellite and the Internet – while broadcasters get that over-the-air exemption. Broadcasters think the per-performance rate for online streaming is too high, especially given online advertising hasn’t increased at a similar rate, which means that increased listenership increases costs but not revenues. And Pandora feels as though it’s at a disadvantage to both, because it, too, pays a rate higher than Sirius XM and doesn’t enjoy any exemption like broadcasters do.

The disparity in the royalties each of the services get tapped for is the fault of Congress, which has established distinct approaches to royalty calculation for each.

Tags: Broadcast, Copyright, Copyright Royalties, Copyright royalty, HR 6480, Intellectual Property, Interim FIRST Act, Internet, Internet Radio Fairness Act, Jared Polis, Jason Chaffetz, Jerrold Nadler, Ron Wyden, S 3609, Section 801(b)

.RADIO - A Look at the Four Contenders for Control of the TLD

Posted on September 8, 2012 by Kathy Kleiman

As ICANN processes applications for new top level domains, four applicants are in the running for the .RADIO TLD.

We recently reported that the Internet Corporation for Assigned Names and Numbers (ICANN) received 1,930 applications for new top level domains (TLDs) – including dozens of applications for broadcast- and media-related applications including .MEDIA, .MUSIC and .VIDEO.

But the four applicants for .RADIO caught our eye. They seek to offer services to radio broadcasters around the world, and may well change the way radio broadcasters operate, both on the Internet and offline. Their applications merited a closer look.

Before diving in, we need to define a number of terms that are central to the TLD system.

First, “Registry”. In ICANN parlance, a registry is an entity which, under contract to ICANN, provides the authoritative master database of a single TLD and manages all “second-level” domain names registered within that TLD. Example: “.COM” is a TLD, and “FHHLAW.COM” is a second-level domain name registered with the “.COM” TLD. Verisign is the Registry for .COM. Registries may not generally sell directly to the public. Each of the four .RADIO applicants is seeking to be the registry of .RADIO.

Next, “Registrar”. A registrar is an entity accredited by ICANN and under contract to a Registry. The registrar adds, deletes, updates and transfers second-level domain names. Registrars are the “salesmen” of domain names. GoDaddy is the largest registrar in the world.

When it comes to new TLD applications, there are two types:

Tags: .RADIO, Afilias Limited, BRS Media, Broadcast, Donuts, Inc., EBU, Eurovision Broadcasting Union, Generic Top Level Domains, ICANN, Intellectual Property, Internet, Internet Corporation for Assigned Names and Numbers, Registrar, Registry, TLD, Tin Dale, LLC, Top level domain names

Update: Fixed Microwave Comment Deadlines Set; Some Effective Dates Still in Limbo

Posted on September 5, 2012 by FHH Law

Last month we reported on (a) some fine-tuning the Commission had performed on its wireless backhaul rules and policies, and (b) some additional changes the Commission is considering in that area. The FCC’s decision has now been published in the Federal Register – in two separate parts, one reflecting the Report and Order portion of the decision, the other reflecting its Proposed Rulemaking and Notice of Inquiry components.

Federal Register publication sets the comment deadlines for the proposed rulemaking/inquiry aspects. If you want to give the FCC the benefit of your thinking on the Commission’s proposals, you have until October 5, 2012 to get your comments in. Reply comments are due by October 22, 2012.

FedReg publication of the report and order establishes the effective date of the rule changes adopted in that report and order . . . for the most part. All of the newly-adopted rules will take effect on October 5, 2012. All, that is, except for the “Rural Microwave Flexibility Policy,” which provides for waiver of the spectrum efficiency requirements for links in rural areas. Because that policy includes “information collections” that have to be run past the Office of Management and Budget first for its approval (thanks to the Paperwork Reduction Act), the policy won’t become effective along with the rest of the rules. Rather, the FCC and OMB will afford the public further opportunities to comment on the flexibility policy. If OMB gives it the thumbs up, the FCC will publish a notice to that effect, specifying a separate effective date for the policy. We’ll let you know when that happens.

Tags: 12.7-13.2 GHz, 6875-7125 MHz, Adaptive modulation, Antenna size, Auxiliary Fixed Service Stations, Category B2, Cellular, Deadlines, Final Link rule, Fixed Microwave Service, Internet, Part 101, Wireless Telephony, Wireless backhaul

FAA Rethinks Personal Electronic Devices on Airplanes

Posted on August 30, 2012 by Mitchell Lazarus

A feature of modern air travel is the ritual shutting down of electronic gadgets before take-off and landing. The FAA is taking another look at whether this is really necessary.

A little-loved feature of modern air travel, along with security lines, cramped legroom, and overstuffed overheads, is the pre-takeoff ritual where the flight attendant says, “You must now turn off all personal electronic devices. Anything with an on/off switch must be in the off position.” And the same thing again as the plane is preparing to land.

The FAA is taking another look at whether this procedure is really necessary.

Current FAA rules prohibit the operation of all personal electronic devices (PEDs) at all times during the flight, except for hearing aids and heart pacemakers (understandable) and also electric shavers and portable voice recorders (less so). The FAA rule is here. Individual airlines can authorize departures from the rule; most have followed an FAA recommendation to allow use of a PED without an active transmitter at altitudes above 10,000 feet – about five minutes after takeoff and fifteen minutes before landing. Most airlines prohibit transmitters throughout the flight (this includes cell phones, Bluetooth, and Wi-Fi, except to use airline-provided Wi-Fi services), and still require all devices to be turned off below 10,000 feet.

These rules date back to the mid-1960s, when the FAA’s main concerns were electrical interference into the aircraft’s communications and navigation gear. Since then, as aircraft have become increasingly computerized and electronic displays proliferated in the cockpit, the possible on-board targets of interference have increased. Over the same time period, passengers’ gadgets have likewise become computerized and have proliferated. And passenger complaints about being cut off from their devices have steadily mounted.

The FAA has now launched a comprehensive review of PEDs and their actual risk to aircraft safety.

We hope the FAA will address some of the present inconsistencies.

Tags: Cellular, Deadlines, FAA, Federal Aviation Administration, Internet, PEDs, Personal electronic devices, Unlicensed Operations and Emerging Technologies, Use of electronic devices in airplanes, Wireless Telephony

ivi TV Loses Round Two

Posted on August 28, 2012 by Harry Cole

Second Circuit affirms injunction preventing would-be online “cable system” from carrying over-the-air content.

ivi TV, the company that burst onto the video delivery scene two years ago with a business plan based on an innovative reading of Section 111 of the Copyright Act, has suffered a major setback at the hands of the U.S. Court of Appeals for the Second Circuit. The court has upheld a lower court’s order enjoining ivi TV from infringing the copyrights of the broadcast networks that sued ivi TV back in 2010.

The lower court’s injunction effectively put ivi TV’s operation on life support. The Second Circuit’s decision may have pulled the plug entirely.

ivi TV’s idea was relatively simple, if outside the box. ivi TV wanted to stream broadcast stations online in real time. It wasn’t a cable company in the traditional sense: no headend, no wires, no set top box. But according to ivi TV, it was entitled to retransmit over-the-air broadcast signals, without the broadcasters’ permission, because ivi TV’s operation was essentially a “cable system” as that term is used in Section 111. Section 111 gives “cable systems” the statutory right to such retransmission, provided they pay governmentally-established royalties (which ivi TV said it was willing to pay).

The district court disagreed with ivi TV’s reading of Section 111 back in 2011. And now the Second Circuit has piled on, concurring with the district court that Congress “did not intend for § 111 licenses to extend to Internet retransmissions”. That conclusion largely guts ivi TV’s claims.

Tags: :"Cable, Aereo, BarryDriller.com, Betamax, Broadcast, Cable, Cablevision, Compulsory licenses, Compulsory licensing, FilmOn.com, Intellectual Property, Internet, Program distribution, Second Circuit, Section 111, Section 119, Section 122, ivi TV, system"

New Broadcast-Related Top Level Domains Proposed to ICANN

Posted on August 17, 2012 by Kathy Kleiman

Coming Internet addresses will end in familiar media terms and trademarks, if ICANN approves.

As our readers know, the Internet space is changing. Earlier this year ICANN (the Internet Corporation for Assigned Names and Numbers) accepted applications for “new generic top level domains” or “new gTLDs.” We reported last June that ICANN had received 1,930 applications, and we promised back then to share with you the new gTLDs applied for by broadcasters and for broadcast-related services. The full list of new gTLDs (and their applicants) is available on the ICANN website. Applicants include a number of well-known entities, both in the U.S. and overseas:

American Broadcasting Corporation, Inc., applying for .ABC

British Broadcasting Corporation, applying for .BBC

BRS MEDIA, Inc. applying for .RADIO

The Christian Broadcasting Network, Inc., applying for .CBN

Comcast IP Holdings, LLC, applying for .COMCAST

Dish DBS Corporation, applying for .BLOCKBUSTER, .DATA, .DIRECT, .DISH, .DOT, .DTV, .LATINO, .LOCKER, .MOBILE, .MOVIE, .OLLO, .OTT and even .PHONE

European Broadcasting Union, applying for .EUROVISION and .RADIO

Frontier Communications Corporation, applying for .FRONTIER and .FTR

Lifestyle Domain Holdings, Inc., and its application for .FOODNETWORK

HBO Registry Services, Inc., applying for .HBO

Lifestyle Domain Holdings, Inc., applying for .HGTV

Dish DBS Corporation applying for .LATINO

Japan Broadcasting Corporation applying for .NHK

Limited Telefonica applying for .TELEFONICA

QVC Inc. applying for .QVC

Qatar Telecom (QTel) applied for .Qatar in two variations of Arabic, taking advantage of recent Internet changes that allow top level domains to be in a range of languages and scripts.

In addition, companies both broadcasting and non-broadcasting, applied for a range of general terms often associated with broadcasting. For example:

Tags: Generic Top Level Domains, ICANN, Internet, Internet Corporation for Assigned Names and Numbers, Top level domain names

FilmOn.com Is Dead (or so it appears). Long Live BarryDriller.com!

Posted on August 16, 2012 by Kevin Goldberg

Out of the ashes of one MVPD wannabe rises another.

To paraphrase T.S. Eliot, this is the way the MVPD wannabe ends, not with a bang but a whimper. . . and a $1.6 million settlement payment.

You remember FilmOn.com. They’re the folks who were going to revolutionize the video biz by legally delivering broadcast signals via the Internet . . . until they got immediately sued for copyright infringement by the major broadcast networks.

“Oh, you mean Aereo, right?”, you reply.

That would be the Barry Diller-financed entity that captures broadcast signals via a series of individual antennas, stores them on individually assigned remote DVRs and allows subscribers to watch programming in (almost) real time or via delay over the Internet. But, no, they’re not who we’re talking about here. Aereo still exists and has even won the first round in its legal battle against the broadcasters, surviving a motion for preliminary injunction.

“Oh, right . . . you’re talking about ivi TV?”, you protest, referring to the wannabe “first online cable system”. No, not them either (but you’re close).

Overall Backhaul Overhaul II: Further Fine Tuning For Fixed Microwave Rules

Posted on August 15, 2012 by Christine E. Goepp

The FCC follows up on last summer’s overhaul by taking further steps to make life easier for Fixed Service wireless operators.

August must be unofficial “wireless backhaul” month over at the FCC. Following up on last summer’s “overall backhaul overhaul,” the FCC has now taken further steps to make life easier for Fixed Service wireless operators.

Fixed wireless is a low-profile yet indispensable component of the nation’s communications infrastructure, serving a wide variety of entities and industries. It helps to balance the electrical grid, coordinate the movements of railroad trains, and transmit emergency calls to local police and fire personnel. It moves business data for companies with dispersed locations, such as financial companies, chain stores, restaurants, hotels, airlines, and car rental companies.

Increasingly, fixed wireless links are used as “backhaul” for mobile communications, carrying signals between central network facilities and cell towers, particularly where wireline is impractical, as across rough terrain or dense urban buildup. In other words, wireless backhaul helps get that cat video to your smartphone or tablet. Anyone who doubts the ubiquity of fixed microwave need only note the vast numbers of sideways-facing dishes and domes on radio towers, water towers, and buildings.

As important as Fixed Service links are, however, we suspect that the technical minutiae of the FCC’s latest action is of interest to relatively few readers. Therefore, we are providing just the highlights. (If you want to know more, you can read all the details here.)

Tags: 12.7-13.2 GHz, 6875-7125 MHz, Adaptive modulation, Antenna size, Auxiliary Fixed Service Stations, Category B2, Cellular, Final Link rule, Fixed Microwave Service, Internet, Part 101, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireless backhaul

Update: Aereo Allowed to Continue Operation During Copyright Challenge

Posted on July 12, 2012 by Harry Cole

Judge denies broadcasters’ request for injunction.

In the Aereo v. the Broadcasters smackdown, Round One has gone to Aereo. In a thorough 52-page opinion, Judge Alison Nathan, U.S. District Judge in the Southern District of New York, has rejected efforts by the broadcaster plaintiffs (i.e., the major broadcast networks) to get the court to enjoin Aereo’s operation. That means that Aereo can continue to serve its subscribers while the broadcasters’ various substantive claims against Aereo (consisting of claims of various flavors of copyright infringement) are litigated.

That’s bad news for the broadcasters. But what’s worse is how Judge Nathan got to that result.

(If you’re fuzzy on just what the Aereo litigation is all about, take a look at our initial post about the case.)

Judge Nathan concluded that Aereo’s system is, for purposes of copyright law analysis, essentially the same as the Remote Storage DVR (RS-DVR) system that, according to the U.S. Court of Appeals for the Second Circuit, does not infringe copyrights. While her opinion grants a number of points to the broadcasters, her conclusion about the similarities between Aereo and the RS-DVR system deals the death blow to the broadcasters’ injunction request – and, looking down the line, very likely also to its overall claims of infringement.

We’ll delve into Judge Nathan’s decision a bit more below. But first, a brief primer on litigation procedure may give readers not versed in the Litigation Arts an understanding of what has happened thus far and what it means going forward.

Tags: Aereo, Betamax, Broadcast, Cable, Cablevision, Copyright, Copyright infringement, FilmOn.com, Intellectual Property, Internet, Judge Alison Nathan, Second Circuit, ivi TV

The CRB Dodges an Appointments Clause Bullet

Posted on July 6, 2012 by Harry Cole

From unconstitutional to constitutional in a couple of pages, the Copyright Royalty Board has dodged a bullet, thanks to the D.C. Circuit.

The U.S. Court of Appeals for the D.C. Circuit has concluded that the structure of the Copyright Royalty Board (CRB) violates the Appointments Clause of the Constitution. As a result, a CRB rate determination under appeal has been vacated and the matter remanded to the CRB for further consideration.

But wait, you say – why remand it to the CRB if the CRB is unconstitutional? In a deft demonstration of judicial legerdemain, the court also concluded that CRB’s unconstitutionality could be remedied if the court were simply to write some inconvenient language out of the governing CRB statute – and that’s just what the court did. So while the CRB may not have been constitutional before the court’s decision, it will be constitutional as of that decision, as will CRB determinations made after the court’s decision.

The case involves a challenge to the CRB’s 2011 decision setting copyright royalty rates for certain noncommercial webcasters. Intercollegiate Broadcasting System, Inc. (Intercollegiate), an association of noncom webcasters unhappy about the decision, appealed.

Tags: Appointments Clause, Broadcast, CRB, Copyright Royalties, Copyright Royalty Board, Copyright Royalty Judges, Copyright royalty, Intellectual Property, Intercollegiate Broadcasting System, Inc., Internet, Judge Kavanaugh, Live365, webcasting

Coping with Social Media in the Workplace III

Posted on July 5, 2012 by Kevin Goldberg

NLRB memo sheds useful – and, in some cases, surprising – light on employers’ social media policies.

A couple of years ago I urged readers to consider developing, sooner rather than later, policies relating to their employees’ use of social media. That’s because, whether employers like it or not, their employees are using social media, and that use can put the employer’s business at risk. Better to get ahead of the problem than have to play catch-up ball when an employee’s careless or calculated online behavior causes problems.

Then last summer the Acting General Counsel of the National Labor Relations Board (NLRB) issued a report that shed considerable light on the types of social media activities that are protected from sanction by employers. In an October, 2011 post I observed that this dovetailed nicely with my earlier post, as it provided multiple illustrations of the limits on an employer’s after-the-fact ability to sanction an employee’s online activities

And now the NLRB’s Acting GC has issued yet another report. (And, by the way, just how many helpful memos does Lafe Solomon have to produce before he can get “acting” removed from his title?) This one focuses on social network policies adopted by employers, identifying various limits to which such policies are subject. It provides useful guidance to all employers – those who have already formulated a social media policy and those who haven’t but expect to be doing so soon.

Tags: Defamation, Employee, Employees, Employer, Facebook, Internet, Liability, Libel, NLRB, National Labor Relations Board, Potential liability, Social media, Twitter, YouTube

Amateurs Challenge Broadband-over-Power-Line Rules

Posted on July 1, 2012 by Mitchell Lazarus

For an FCC blog, that’s a little like saying “dog bites man” – not really news.

You have to admire their persistence. ARRL, the national association for Amateur Radio, has yet again challenged the FCC’s rules for Broadband-over-Power-Line (BPL), just as it has at every opportunity since the FCC first proposed BPL back in 2003.

As you would expect from the name, BPL transmits broadband over the same lines that carry electric power along the street, siphoning off signals to houses and apartments along the way. Its proponents once hailed BPL as the “third wire” into the home for broadband service, the other two being the cable TV and telephone (or FIOS) connections. But in recent years BPL providers have scaled back their ambitions. Now they mostly help out electric utilities with internal communications for meter reading, load management, and the like. Few consumers receive their Internet service via BPL.

But ARRL has not scaled back its opposition.

Tags: ARRL, Amateur, BPL, Broadband-over-Power-Line, Deadlines, Internet, Unlicensed Operations and Emerging Technologies

ICANN Publishes List of Requested New Top Level Domain Names

Posted on June 13, 2012 by Kathy Kleiman

The 1,930 “strings” include brand names, famous place names, and generic words.

ICANN (Internet Corporation for Assigned Names and Numbers) has published the list of 1,930 “strings” people around the world have requested for new top level domain names. On “Reveal Day,” June 13, the Internet Community paused for a moment from its busy activities to stop and look at the nearly 2,000 new words and letters submitted by companies and organizations as possible additions to the Internet’s global nomenclature. None have yet been accepted, but the formal process of evaluation and objection has begun.

At 8:15 a.m. ET, ICANN sponsored a press and public event in London with its CEO Rod Beckstrom and Senior VP Kurt Pritz, featuring a big-screen scroll through the requested names, followed by questions from the press. The list has brand names, including .DELOITTE and .NOKIA, famous place names, including .ISTANBUL, .PARIS, .OSAKA and .LONDON, and generic words, including .RUGBY, .VIP and .KETCHUP.

I’ve been intimately involved in helping to negotiate the rules of new generic top level domain names for four years. What I will remember most about this event is the non-English new gTLDs that jumped off the screen, written in Chinese, Arabic, Japanese, and Cyrillic. These foreign script new gTLDs represent a range of companies, geographic regions, and generic uses – such as BAZAAR. Although they are only 116 of the 1,930 new applications, they represent a huge step forward, because they open the previously English-oriented Internet domain name system to a range of languages and to a majority of the world -- a key reason many of us worked so hard on this process.

The formal objections – based on legal rights, public interest, and possible confusion – will soon fly. Some will involve fights among those who spent money in applying for the same new gTLDs, including seven applicants for .WEB, five for .FREE, and four for .RADIO.

But before that happens, it’s good to take a moment to pause and celebrate. ICANN issued an invitation to the world to apply for new gTLDs. They were expensive, and the application process was difficult. Frankly, we weren’t sure who would show up. But the world responded. Just as many of us suspected, there is a global need for growth and innovation in domain names.

To celebrate Reveal Day, I’ll share some of the strangest new gTLDs that I found. The rest are posted on the ICANN website:

.FOO .BOO .GOO

.VIVA .BABY .LOVE

.PLAY .POKER .FISH

.AND .ARE .OOO

.PARTY .FUN .ONE

Tags: Generic Top Level Domains, ICANN, Intellectual Property, Internet, Internet Corporation for Assigned Names and Numbers, Top level domain names

USF Contribution Reform Underway (Again)

Posted on June 13, 2012 by Paul J. Feldman

Facing steady declines in contributions under the existing system, the FCC is trying – for the third time – to come up with a successful Plan B. Here’s hoping that three’s the charm.

As we have reported, the Commission recently overhauled the way it doles out the Universal Service Fund (USF), a fund that last year exceeded $8 billion. Now the Commission has turned its attention to the all-important question of how it should be rounding up the cash to be doled out. In a Further Notice of Proposed Rulemaking (FNPRM), the FCC is exploring a number of potentially significant changes to the USF contributions process.

Historically, the USF has been funded through contributions from common carriers and certain other telecommunications providers. While 2,900 (or so) telecommunications providers currently chip in to the USF, nearly 75% of USF contributions come from five companies: AT&T, CenturyLink, Sprint Nextel, T-Mobile, and Verizon. But these contributors don’t pay out of their own pocket, as they routinely recover their USF contribution costs from their customers, usually through a line item for USF pass-through charges which is included on each consumer’s monthly bill. Since the bill for USF is thus ultimately footed in large measure by Joe and Loretta Average-Phone-User, USF funding is an important consumer issue.

The Commission is under considerable pressure to expand the universe of USF contributors or otherwise pump up contributions. That pressure arises from decreasing contributions and increasing USF demands.

Tags: Cellular, Deadlines, Internet, USF, USF contribution, Universal Service Fund, Wireless Telephony, Wireline Telephony

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

Posted on June 1, 2012 by Steve Lovelady

[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.

Tags: Asset purchase agreements, Broadcast, FHH, Intellectual Property, Internet, Kathy Kleiman, The Contracts Guy

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

Posted on May 30, 2012 by Kathy Kleiman

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.

Tags: Deadlines, FHH, Generic Top Level Domains, ICANN, Intellectual Property, Internet, Internet Corporation for Assigned Names and Numbers, TLD Application System, Top level domain names

Top Ten Tips for Telecom Transactions - Part V

Posted on May 25, 2012 by Robert Butler

[This is the fifth (and last) in a series of posts by Bob Butler on the Fine Art of Telecom Transactions. In the first installment, he cautioned about the needs to plan early and to understand the structure ad interrelationships of the deal documents. In this and the other installments, he identifies more factors to watch out for in the drafting process.]

Tip No. 9 – Limit Your Liability Exposure

The standard carrier agreement almost invariably contains very one-sided risk allocations. Clauses limiting liability under the contract and requiring indemnification for third party actions are frequently drafted solely in favor of the carrier. You need as a minimum to make these provisions mutual and ensure that liability caps (a) are not so low as to be meaningless, and (b) do not apply to indemnification obligations. In particular, in this era of increasing litigation by patent trolls, a comprehensive indemnification from your vendor for all costs, not just finally awarded damages, for infringement of a third party’s intellectual property is a must.

Tip No. 10 – Secure Your Migration and Exit Strategies

The flip side of early planning (see the first installment of this series) is ensuring that you have a sound migration and exit strategy. This means that your contract should permit you to: (a) terminate without liability for material vendor breach and extended force majeure events (watch out for obligations to pay vendor’s third party costs); and (b) continue to receive service on the same terms and conditions for at least six months after expiration or termination of the agreement for any reason in order to permit you to transition in an orderly fashion to a new provider. (Important: The vendor should be obligated to cooperate in this transition.) You also need to be aware of your vendor’s plans for service obsolescence and the concomitant risk that you will be forced to migrate to a new service or technology. Carriers uniformly insist upon the right to discontinue aging services they no longer wish to support, often with only 12 months or less notice.

* * *

The issues I’ve addressed in this series are not meant to be exhaustive or definitive. Individual situations may entail additional factors or may warrant a reordering of priorities. Issues of confidentiality, network security, service provisioning, software and equipment use, account support and staffing, and other important topics may assume a greater importance to you. But it will still be advisable to pay heed to the top ten issues I have identified in order to secure the benefit of your bargain and avoid exposure to unacceptable liabilities in contracting for telecommunications and related services.

Tags: Bob Butler's Top Ten Tips, Internet, Telecom transactions, Wireless Telephony, Wireline Telephony

Top Ten Tips for Telecom Transactions - Part IV

Posted on May 23, 2012 by Robert Butler

[This is the fourth in a series of posts by Bob Butler on the Fine Art of Telecom Transactions. In the first installment, he cautioned about the needs to plan early and to understand the structure ad interrelationships of the deal documents. In this and the other installments in this series, he identifies more factors to watch out for in the drafting process.]

Tip No. 7 – Beware the AUP

Historically, Internet service providers have established draconian acceptable use policies (AUPs) designed to hold their customers liable for virtually any bad act perpetrated by anyone over the purchased services. In most instances such AUPs will expose you to substantial potential liability and the threat of service cut-off without notice or recourse. What’s worse, vendors are increasingly seeking to apply AUPs to non-Internet services as well. While in theory there’s nothing wrong with the concept of an “acceptable use” policy, it’s important that such policies reasonably reflect appropriate assignment of responsibility for problems that may be encountered. It’s equally important that you be given some adequate opportunity to correct problems that are within your control before the vendor pulls the plug on you.

Possible approaches include, as a minimum: negotiating limits to your third party liability exposure; shifting the responsibility for network security breaches back to the vendor; and securing meaningful advance notice and cure rights before your service can be suspended or terminated.

Tags: Bob Butler's Top Ten Tips, Internet, Telecom transactions, Wireless Telephony, Wireline Telephony

Top Ten Tips for Telecom Transactions - Part III

Posted on May 21, 2012 by Robert Butler

[This is the third in a series of posts by Bob Butler on the Fine Art of Telecom Transactions. In the first installment, he cautioned about the needs to plan early and to understand the structure ad interrelationships of the deal documents. In this and the other installments in this series, he identifies more factors to watch out for in the drafting process.]

Tip No. 5 – Watch for Term and Commitment Traps

Most telecom contracts specify a minimum financial commitment – the dollar spend for services you agree to buy, whether annually or over the life of the contract – and a minimum time commitment, or contract term, which typically runs three-five years. To maximize your flexibility and leverage, you should: (a) opt for shorter terms (no more than three years except in specialized cases, such as fiber build-outs); (b) commit to no more than 60-70% of your expected actual spend; (c) make the commitment only over the full term of the agreement rather than annually or with respect to particular services; and (d) secure a termination right that will kick in whenever you reach the committed spend, even if early in the term. The idea is to make it as easy as possible for you to satisfy your commitment, with the additional benefit (and inducement) of being able to terminate the deal once you have met that commitment.

Of course, even the best laid plans often go awry, so it’s also a good idea to consider, and protect against, unfavorable scenarios. For example, despite your best efforts, you may not satisfy your commitment. Recognizing that up front, you should not agree to 100% shortfall liability in the event of such a failure. In my experience, 25-50% is more typical, and it’s often possible to further cushion the blow by negotiating rollover or work-off options as well. You should also ensure that you are not obligated to pay both shortfall and termination liability changes if you exit the contract early without cause or the carrier terminates you for breach. You certainly don’t want to pay what would amount to a double penalty for early termination.

Tags: Bob Butler's Top Ten Tips, Internet, Telecom transactions, Wireless Telephony, Wireline Telephony

Top Ten Tips for Telecom Transactions - Part II

Posted on May 17, 2012 by Robert Butler

[Blogmeister’s Note: This is the second in a series of posts by Bob Butler on the Fine Art of Telecom Transactions. In the first installment, he cautioned about the needs to plan early and to understand the structure ad interrelationships of the deal documents. In this and upcoming installments, he moves on to factors to watch out for in the drafting process.]

Tip No. 3 – Understand and Accommodate the Impact of Regulation

Telecommunications services are still regulated in various ways at the federal, state and local level in the U.S., and to even greater extents in many foreign jurisdictions. The good news is that such regulation will rarely give a vendor an excuse not to meet your reasonable requests for service or specific contract terms. The bad news? Governmental regulation may still in some respects limit your vendor’s flexibility in providing the service; it can also increase costs (for both the vendor and, more importantly, you) through taxes and specialized levies such as universal service fund payments.

What makes matters more difficult is the fact that the regulatory landscape is shifting in various, not necessarily predictable, ways. Contrary to what we’ve generally seen in the past two decades, the recent trend is to increase regulation for some previously regulated service, and to start to regulate previously unregulated offerings such as Internet and other IP services. These changes, which are occurring both in the U.S. and in other countries, can undermine the enforceability of previously negotiated terms, and they can complicate negotiations that are still underway.

To avoid the potential pitfalls created by the uncertainties of regulation, it’s important to conduct due diligence so that you understand the effect that both existing and potential regulation could have on your deal. And an essential added safeguard is an effective material adverse change (MAC) clause to permit you to make appropriate adjustments should regulatory changes, whether or not anticipated, adversely affect your interests after you’ve signed the deal.

Tags: Bob Butler's Top Ten Tips, Internet, Telecom transactions, Wireless Telephony, Wireline Telephony

Media Access Project Exits Stage Left

Posted on May 16, 2012 by Harry Cole

Public interest communications “law firm and advocacy organization” closes up shop

Media Access Project (MAP), a long-time player in the soap opera that is communications law, has left the show. As of May 1, MAP suspended operations “after evaluating the difficult funding environment facing MAP and other progressive public interest groups.”

Founded in 1973, MAP assumed a variety of roles over the course of its 39-year history. To some it was a tough litigator, a thoughtful advocate, and a mouthpiece for a wide range of interests that might not otherwise have had a mouthpiece. To others, it was a self-promoting buttinsky given to advancing positions of questionable (if any) validity. A seemingly constant presence in the mainstream press, it could be a total pain in the tail to those with whom it disagreed. Many – maybe even most – “industry” representatives may have disagreed with many – maybe even most – of MAP’s positions and tactics. But MAP, apparently indefatigable and unquestionably resourceful, made its voice heard, for better or for worse.

MAP prevailed in a number of important cases before the Commission and the courts and succeeded in swaying legislative policy. But MAP’s more lasting impact will likely be the fact that it spawned, directly and indirectly, a new generation of like-minded organizations that will carry on MAP’s work into the 21st Century. The ongoing work of those organizations will be MAP’s true legacy.

The demise of MAP has a particular, personal, effect on this blogger.

Tags: Broadcast, Cable, Cellular, First Amendment, Internet, MAP, Media Access Project, Wireless Telephony, Wireline Telephony

FHH Welcomes Back Kathy Kleiman

Posted on May 15, 2012 by FHH Law

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.

Tags: FHH, First Amendment, Fletcher Heald & Hildreth, Fletcher Heald and Hildreth, ICANN, Intellectual Property, Internet, Internet Corporation for Assigned Names and Numbers, Internet Law and Policy Group, Kathy Kleiman

Top Ten Tips for Telecom Transactions

Posted on May 15, 2012 by Robert Butler

[Blogmeister’s Note: In January Fletcher, Heald & Hildreth welcomed Robert Butler into the fold. Bob – whose extensive bio can be checked out here – has decades of experience in telecom contracting, the fine art of identifying a client’s telecom needs and negotiating to secure the capacity and services to meet those needs without (a) over-buying (i.e., ending up with more services or capacity than you want), (b) under-buying (i.e., getting less than what you really need), (c) over-paying, or (d) exposing yourself to unnecessary potential liabilities. Bob has graciously put together a set of tips that any party looking to deal with a telecom provider should keep in mind. The following -- which presents the first two of Bob's Top Ten Tips -- is the first of five installments.]

Buying telecommunications and related services presents a different kind of contracting challenge. Such services are, of course, absolutely essential in the modern marketplace. But successfully arranging for just the right services is a far cry from buying paper clips at Office Depot.

Start with the expanding universe of constantly developing high tech products available, all swimming in a dense alphabet soup of acronyms – VANs/WANs, VPNs, VOIP, ISDN, DSL, ATM, MPLS, DS1s, 2s, and 3s, OC-1/10s, etc. Recognize that those products include a mix of regulated and unregulated offerings. Throw in the reality that many routine transactional documents often still include (at least in the initial go-round) contractual artifacts from a long gone monopoly era. Appreciate the fact that one’s particular situation often demands unique contractual provisions addressing specialized needs or concerns. And don’t forget the importance of minimizing exposure to liability that could arise from myriad potential worst case scenarios.

The bottom line is that a steady and experienced hand is indispensable to securing a customer-friendly deal. The following are prime examples of areas in which an experienced hand can and should assist anyone looking to arrange for telecom services.

Tags: Bob Butler's Top Ten Tips, Internet, Telecom transactions, Wireless Telephony, Wireline Telephony

Google v. FCC: And the Winner is [REDACTED].

Posted on April 20, 2012 by Rob Schill

In Rorschach-like NAL, FCC proposes whopping $25,000 (ouch!) fine for impeding an investigation into the Google Wi-Spy controversy.

In a Notice of Apparent Liability (NAL), the FCC has proposed to fine Google. Not, mind you, for the alleged misconduct the Commission first set out to investigate. Rather, Google would be fined for allegedly impeding that investigation – even though the FCC now pretty much concedes that no violation took place. But it’s hard to tell exactly what happened, because large portions of the FCC’s published order are redacted. One thing that wasn’t redacted: the proposed fine. That would be the princely sum of $25,000.

This much is known: between 2007-2010, Google collected Wi-Fi network data all over the world in support of its Street View project. In addition to providing totally bitchin’ online photos of just about anywhere in the world, the Street View project collected network data to support various location-based services. But in collecting those data about available networks here, there and everywhere – including home wireless networks – Google also happened to collect the actual content of various unencrypted communications carried over these networks (i.e., “payload” data) – things like e-mails, text messages, passwords, Internet usage history, and other potentially sensitive personal information.

When word of this surfaced, governments everywhere – federal, state, foreign – launched (with considerable fanfare) investigations, on the theory that the unauthorized collection of that kind of private data couldn’t possibly have been legal.

Our federal government sicced an agency tag-team on Google. First, the Federal Trade Commission (FTC) took a close look at Google’s activities, but closed down its investigation without finding any problems. The FTC came away convinced that Google didn’t plan to use any of the payload data, would be deleting that data pronto, and was taking steps to improve “its internal processes”. Nothing to look at here, folks. Show’s over. Just move along.

Then the FCC jumped in.

Tags: Enforcement Activities (Fines, Forfeitures, etc.), Google, Internet, Notice of apparent liability, Section 705(a), Street View, Unlicensed Operations and Emerging Technologies, Wi-Fi, Wiretap Act

Access of Evil? FCC Unveils NOITALS

Posted on April 1, 2012 by FHH Law

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.

Tags: Broadband the FCC Cat, Broadcast, Cable, Cellular, EAS, Enforcement Activities (Fines, Forfeitures, etc.), FHH, First Amendment, Intellectual Property, Internet, NOITALS, Nationwide EAS test, Nationwide On-line Information Tracking and Logistics System, SamKnows Whitebox, Satellite Radio, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireless router, Wireline Telephony

More Steps Toward TV Band Clearing

Posted on March 12, 2012 by Peter Tannenwald

Sixteen more Class A stations face the loss of their Class A status.

The thinning of the ranks of Class A TV stations continues. We reported recently that the FCC has started to propose the downgrading of a number of Class A television stations to LPTV status, presumably to make room for the almighty broadband to take over TV spectrum. The stations targeted in the first round of that effort had (a) failed to file Children’s TV Reports and (b) failed to respond to FCC’s inquiries about the whereabouts of those reports. (The Commission later fined a number of other stations which had also failed to file kidvid reports; they escaped the dreaded downgrading because they had at least responded to the FCC’s inquiries.)

Another 16 Class A’s now face the prospect of being demoted to LPTV status.

Like the stations we’ve already reported on, the latest batch of targeted Class A’s got onto the FCC’s radar by not filing Children’s TV Reports. In response to the FCC inquiry about those missing reports, each of the three licensees (one holding 13 licenses, another two, and a third one) acknowledged their respective failures to file. Each also acknowledged that their stations had operated, at most, only sporadically over the last several years. Two blamed the economy for the extended darkness; one claimed that its non-operation – its two stations had operated a total of less than four months in the last five years – arose from a “need to locate permanent transmitter sites”. Two of the three licensees’ responses also indicated that their stations no longer had main studios (much less public files located their main studios).

In order to qualify for Class A status, a licensee must maintain a main studio and broadcast a minimum of 18 hours per day, with an average of at least three hours weekly of locally-produced programming and three hours of children’s programming. From the responses described above, the Commission concluded that none of the 16 stations still qualified to be Class A – accordingly, they’re looking to be downgraded.

The FCC suggests that Class A stations who find themselves temporarily unable to meet the minimum regulatory requirements for Class A status may, in some circumstances, be eligible for special temporary authority to operate at variance from those requirements. But such STA would be only temporary, and would not cover extended time periods of noncompliance, particularly when the reason for the STA is financial distress. The Commission is particularly skeptical about stations that close their main studios and/or de-construct their transmission facilities. The result of this strict approach, of course, is to impose the greatest hardship on the most vulnerable.

The other side of the argument is that no one is proposing to take away licenses; rather, all that’s involved here is a status downgrade (from Class A to LPTV), which still allows the stations to resume operation. Whether there is a difference between taking away the license and taking away only Class A status remains to be seen after we know more about the prospects of space remaining for LPTV stations after implementation of the FCC’s plan to truncate the TV spectrum by 10-20 channels.

Tags: Broadcast, Cellular, Children's Programming Reports, Class A Television, Enforcement Activities (Fines, Forfeitures, etc.), Form 398, Internet, LPTV, Low power television, Middle Class Tax Relief and Job Creation Act of 2012, Repurposing of TV spectrum, Spectrum auction, Spectrum auctions, Wireless Telephony

Net Neutrality Update: The D.C. Circuit Goes Through the Motions

Posted on March 8, 2012 by Harry Cole

Court resists FCC efforts to delay judicial review.

It’s been several months since that Hot Topic Of All Hot Topics, net neutrality, graced our space here. When last we reported on the subject, the net neutrality order had finally made it into the Federal Register, a number of parties had sought judicial review in a number of federal courts of appeals, the D.C. Circuit had been picked as the lucky court that will hear arguments on the matter, and a lone petition for reconsideration of the order had been filed with the Commission.

Then things got quiet.

It turns out that, despite the silence, things have been happening down at the D.C. Circuit. Earlier this month the court acted on a couple of FCC motions. While the court’s order consists of a whopping three sentences, it at least provides some tea leaves for us to study while we wait for further developments.

At issue were (a) the FCC motion to dismiss Verizon’s “notice of appeal” and (b) an FCC motion to have the court hold the case in abeyance while the Commission addresses the one petition for reconsideration of the net neutrality decision that was filed with the agency. [Spoiler alert: the court denies the abeyance request, but leaves the motion to dismiss in limbo.]

You can find the background on the Verizon notice of appeal in this series of posts from last year. As we indicated back then, Verizon filed both a “notice of appeal” (pursuant to Section 402(b) of the Communications Act) and a “petition for review” (pursuant to Section 402(a)) in an apparent effort to boost the chances that the D.C. Circuit would be the U.S. Court of Appeals to decide the fate of net neutrality. The Commission moved to dismiss the former almost immediately, presumably in the hope that, if the Verizon appeal were dismissed, the case might ultimately land in some other circuit.

Before Verizon even got a chance to oppose the FCC’s motion last fall, the Joint Panel on Multidistrict Litigation (JPML) had selected the D.C. Circuit to hear the case, so the Commission’s motion was moot.

Or maybe not.

Aereo vs. the Broadcasters

Posted on March 6, 2012 by Kevin Goldberg

Another day, another way to move video to the Internet . . . and another set of lawsuits.

Welcome to the latest bout in the Alternate Video Delivery System Smackdown Series. In this corner, the upstart challenger, Aereo (formerly known as Bamboom Labs, Inc.); in that corner, pretty much every major broadcast network.

Aereo is the latest innovator seeking to bring video content from one source (in Aereo’s case, over-the-air broadcasting) to subscribers in some alternate fashion – a fashion that ideally makes it attractive enough to cause consumers to fork over $12/month to Aereo. Aereo plans to deliver a full (or at least nearly full) array of over-the-air broadcast programming to you through the Internet. That, of course, means that you would be able to access that programming through whatever Internet-accessible device you might choose – tablet, smartphone, desktop, big screen TV in your living room, etc. The programming could be streamed as it is being broadcast, or it could be accessed on a delayed basis, just like shows you might otherwise save on a DVR.

And that’s Aereo’s angle: as Aereo sees things, its service “enables consumers to access broadcast television via a remote antenna and DVR”. Actually, make that “cloud DVR”, a term Aereo slips into its on-line response to the two lawsuits brought against it by the major TV networks.

What exactly is a “cloud DVR”? It’s a quasi-imaginary device – actually, a combination of devices – that affords the user the ability to access streamed or recorded content from broadcast stations through the Internet. A crucial element of the technology is a teeny-weeny antenna – about the size of a dime (see illustration, above, taken from the Aereo website) – that Aereo uses to receive OTA broadcasts. When you subscribe to Aereo, you are assigned one such antenna – it’s yours and (supposedly) nobody else’s. It’s hooked to “massive amounts of storage and super-fast Internet connections”. You are then given an “elegant interface” with which to “control your antenna”. You can pick a channel to watch or you can tell it to record for later viewing.

So it’s just like sitting in your living room, fiddling with your cable remote, right?

Tags: Aereo, Betamax, Broadcast, Cable, Cablevision, Copyright, Copyright infringement, FilmOn.com, Intellectual Property, Internet, Second Circuit, ivi TV

Update: Comment Deadlines, Some Effective Dates in Lifeline Rulemaking Set

Posted on March 6, 2012 by FHH Law

The Commission’s magnum opus setting out new rules for the Lifeline program – and proposing more new rules for that program – has been published in the Federal Register. (Click here for the portion containing the proposed rules; click here for the portion containing the new rules that have already been adopted.)

This publication establishes the deadlines for comments and reply comments relative to the proposed rules. If you would like to submit comments, you have until April 2, 2012; reply comments are due by May 1.

The Federal Register publication also establishes the effective dates of some (but not all) of the adopted rules. Get a pencil and paper out – you may need to take notes. Sections 54.411, 54.412, 54.413 and 54.414 will take effect April 1, 2012. Section 54.409 will take effect June 1, 2012. What about Sections 54.202(a), 54.401(c), 54.403, 54.407, 54.410, 54.416, 54.417 54.420 and 54.222? They all involve “information collections” and thus must first be blessed by the Office of Management and Budget thanks to our old friend, the Paperwork Reduction Act before they can take effect.

Tags: Cellular, Deadlines, ETC, Eligible telecommunications carrier, Internet, Lifeline, USAC, USF, Universal Service Administrative Company, Universal Service Fund, Wireless Telephony, Wireline Telephony

White House Proposes Approach to Privacy Protection On-line

Posted on March 5, 2012 by Paul J. Feldman

Statutory “Consumer Privacy Bill of Rights”, FTC-reviewed/FTC-approved private codes of conduct highlight Administration’s opening gambit

Hoping to shape the development of national – and possible international – consensus on the privacy protections to which on-line consumers should be entitled, the Obama Administration has issued a report on “Consumer Data Privacy in a Networked World” in which it lays out a “blueprint for privacy in the information age.” A central component of the report is a proposed “Consumer Privacy Bill of Rights”. That “bill of rights” reflects a set of principles which are, at this point, merely aspirational, with no independent legal force. The White House is hoping to change that on at least two fronts.

First, it is calling on Congress to pass laws that would impose the “bill of rights” on commercial sectors not currently subject to federal data privacy laws. And second – presumably because it recognizes that Congressional action is far from a sure thing – the Administration is calling on a wide range of “stakeholders” to develop their own “codes of conduct” effectively implementing the “bill of rights”. The idea is that such codes, once publicly and affirmatively adopted by companies subject to Federal Trade Commission (FTC) regulation, could be legally enforced by the FTC. The stakeholders the White House is targeting include companies, privacy and consumer advocates, “international partners”, state attorneys general, criminal and civil law enforcement representatives and academics.

This approach appears to have the support of major on-line companies such as Google and Yahoo. Some consumer advocates remain wary about the process and concerned that rigorous enforceable protections may not be achieved.

At this point, it's impossible to reliably predict the chances that the “bill of rights” will ultimately be adopted – whether by Congress or by a significant number of the commercial “stakeholders” identified by the White House. Still, the process of developing broad privacy standards has now been started, and all companies that do business on the Internet should be aware not only of the proposed “rights” (and the burdens that they could impose), but also of the process by which any such “rights” are likely to be developed and implemented.

What Rights? –Just what “rights” are on the table?

Tags: Consumer Data Privacy in a Networked World, Consumer Privacy Bill of Rights, FTC, Federal Trade Commission, Internet, NTIA, National Telecommunications and Information Administration, Online privacy, Privacy, White House

EAS 5th R&O: Who's Who/What's What

Posted on February 29, 2012 by FHH Law

OMG!! 40+ abbrvs?!? YGTBK . . .

If you’re an EAS participant, you really ought to read the 5th R&O described in Davina Sashkin’s post. It contains a lot of information that you should be familiar with.

Yes, yes, it’s 96 pages long, and it’s got another 34 pages of appendices, and it’s got 800+ footnotes. We can’t do anything about any of that. But we can provide you with an alphabetical glossary of the abbreviations/acronyms sprinkled liberally throughout the item. We counted more than 40 of them, and that doesn’t include the names of commenting parties referred to in the item (e.g., “NAB”). You’re on your own when the Commission starts to mash abbreviations together (as in “CAP v1.2 IPAWS USA Profile v1.0”), but our glossary may still simplify your reading experience. Just print it out and keep it handy as you peruse the 5th R&O.

Brought to you as a public service by CommLawBlog.

Tags: Broadcast, CAP, CAP-to-SAME conversion, Cable, Common Alerting Protocol, Deadlines, EAS, EAS Handbook, Emergency Alert System, FEMA, Federal Emergency Management Agency, IPAWS, Integrated Public Alert and Warning System, Internet, SAME, Specific Area Message Encoding

First Steps Toward TV Band Clearing Start

Posted on February 28, 2012 by Peter Tannenwald

Commission moves to downgrade primary Class A stations to more vulnerable secondary LPTV status.

With the spectrum auction legislation now in effect, the FCC is turning to the task of clearing TV spectrum for wireless broadband. As we all know, that will involve some shuffling, since full power and Class A television stations have rights as primary spectrum licensees and must therefore be accommodated somewhere on the band.

But the auction legislation specifically recites that it does not change the status of Low Power Television stations,which presumably continues their secondary status. That gives the Commission a lot more flexibility in dealing with LPTVs because it does not have to take LPTVs into account when it plays chess with full power and Class A channel assignments. While LPTVs will likely be given an opportunity to find, and file for, some alternate channel, they may need good luck to find one in the anticipated cramped condition of the post-repurposing TV band.

So, from the Commission’s perspective, the chore of repacking existing stations would probably be much easier if Class A stations could be downgraded to LPTV status.

Where there’s a will, there’s a way: the downgrading effort has begun.

Tags: Broadcast, Cellular, Children's Programming Reports, Class A Television, Form 398, Internet, LPTV, Low power television, Middle Class Tax Relief and Job Creation Act of 2012, Repurposing of TV spectrum, Spectrum auction, Spectrum auctions, Wireless Telephony

Update: Incentive Auction Act Signed Into Law

Posted on February 24, 2012 by FHH Law

It’s official! The White House website indicates that President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 into law on February 22. That clears the way for the FCC to start crafting – and then implementing – the elaborate incentive auction process intended to free up spectrum (including TV spectrum) for mobile broadband. As we previously indicated, this is likely to be a long and complicated process – but at least now (and for the immediate future) the game will be played out primarily in a single venue, i.e., the FCC. No more having to keep one eye on the Commission and the other on Congress to see who was doing what spectrum repurposing-wise at any given moment.

And heads up, all you states and localities – the requirement that you green-light non-substantial changes to wireless towers and base stations is now in effect, too.

Tags: Broadcast, Cellular, Forward auction, Incentive auction, Internet, Middle Class Tax Relief and Job Creation Act of 2012, Payroll tax cut extension, Reverse auction, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Wireless Telephony, auctions

FCC Still Hooked on Speed

Posted on February 22, 2012 by Mitchell Lazarus

Volunteers are needed for another study of in-home broadband Internet speeds.

The FCC has announced plans for yet another effort to determine people’s broadband speeds.

The FCC’s interest in the topic began back in June 2010, when it recovered from the shock of finding out that most people in fact do not know the speed of their own broadband connections.

The FCC followed up in April 2011 with a public notice asking for comment on which broadband properties it should investigate. Then a report last August summarized the broadband speeds delivered to the homes of 6,581 volunteers. These people were chosen from a larger pool who consented to the installation on their premises of “Whiteboxes,” provided by the company SamKnows, which measured broadband speeds reaching the customer’s computer. Other equipment measured speeds at nine Internet service provider locations.

The FCC is now seeking volunteers for a further study. Those chosen will receive a free wireless router from SamKnows, which will also measure the household’s broadband speeds and report back to the FCC. The lucky selectees will also receive free, detailed reports on the performance of their own broadband service.

We took a look at the fine print. It turns out the “free wireless router,” while free, does not provide a wireless network. Oh, and it does not function as a router, either. People who think they may be “heavy downloaders” are asked not to volunteer, because the tests will not function properly if the line is in constant use. People with low data caps are likewise discouraged from participating, because the wireless router (or whatever it really is) uses the customer’s Internet connection to transfer a fair amount of its own data.

Who is left? We suspect that the most tech-savvy users, the people most likely to pay extra for higher Internet speeds, are least likely to want extraneous equipment in their broadband loop. The least tech-savvy users will not want the challenge of hooking up an extra piece of gear, despite an FCC-provided video on how to do it. Those who mistrust the Government on general principles no doubt will suspect the free wireless router of spying on their Internet use, if not eavesdropping on their conversations, and possibly emitting harmful radiation as well.

Still interested? Sign up here.

Tags: Broadband speed, Broadband speed test, Internet, SamKnows Whitebox

Congress Opens Door for Spectrum Repurposing, Incentive Auctions

Posted on February 18, 2012 by Rob Schill

With passage of the Middle Class Tax Relief and Job Creation Act, incentive auctions for spectrum repurposing take a great leap forward.

After more than a year of back-and-forth, it looks like our friends on Capitol Hill have finally come to terms on a plan to encourage – through “incentive auctions” – the so-called “repurposing” of spectrum now occupied by TV broadcasters to make it available for wireless broadband services. Snuggled in the middle of the payroll tax cut extension act, the long-awaited spectrum auction authority has been enacted and sent to the President who has said that he will sign it promptly.

(In signature Washington style, the curiously-named “Payroll Tax” bill – formal name: the Middle Class Tax Relief and Job Creation Act of 2012 – dedicates a mere three sentences to tax issues and more than 250 to other matters, like Medicare reimbursements, unemployment benefits, federal employee retirement rules . . . and the federal spectrum policy and telecommunications funds.)

Title VI of H.R. 3630 of the Act includes the particular provisions authorizing incentive auctions of broadcast spectrum and creating an interoperable public safety network. (We plan to provide a link to the Act as finally signed by the President when it’s available.)

The good news is that most, but not all, parties with some stake in the game received at least part of what they were hoping for. Of particular interest to broadcasters: the act requires the FCC to make “all reasonable efforts” to preserve existing coverage of TV stations; prohibits the involuntary moving of broadcasters from UHF to VHF, or from high-band VHF to low-band VHF; provides for a one-time auction and a relocation fund of $1.75 billion; and requires coordination with Canada and Mexico on border concerns.

The bad news, at least for low power TV licensees: the definition of “broadcast television licensee” for the purposes of incentive auctions is limited to full-power television stations and “Class A” television stations. LPTV licensees get only a single provision stating that nothing alters their spectrum usage rights. That language will provide little comfort to some in view of the secondary nature of LPTV operations. Still, the language can be cited by LPTV interests as a Congressional directive to the FCC not to ignore the fate of LPTV stations if and when the TV broadcast spectrum is truncated.

Also of note:

Tags: Broadcast, Cable, Cellular, Forward auction, Incentive auction, Internet, Middle Class Tax Relief and Job Creation Act of 2012, Payroll tax cut extension, Reverse auction, Spectrum auction, Spectrum auctions, Spectrum re-purposing, Spectrum repurposing, Unlicensed Operations and Emerging Technologies, Wireless Telephony, auctions

Federal GPS Users Nix LightSquared

Posted on February 15, 2012 by Mitchell Lazarus

U.S. spectrum agency finds there is no practical way to mitigate interference to GPS.

LightSquared Inc. holds mobile satellite licenses that it wants to use for delivering terrestrial (tower-based) broadband service. But probably not for much longer.

LightSquared’s proposal is controversial in part because its frequencies are close to those transmitted by GPS satellites, and so can threaten interference to GPS receivers. Two weeks ago, we reported on LightSquared’s request for an FCC ruling that GPS users are not entitled to protection from LightSquared’s interference. We noted then that the federal government, which both operates the GPS satellites and also uses GPS for many safety-critical operations, had not yet weighed in, and that when it did, its views could well settle the issue.

The federal government has now spoken. What it said was: No. In the FCC’s words, “NTIA, the federal agency that coordinates spectrum uses for the military and other federal government entities, has now concluded that there is no practical way to mitigate potential [LightSquared] interference at this time.”

LightSquared holds a provisional waiver that authorizes it to provide terrestrial service, conditioned on its first resolving the GPS interference issues. With NTIA having determined that those issues cannot be resolved to its satisfaction, the FCC will soon release a formal proposal to terminate LightSquared’s authority.

The Fat Lady has not sung, quite yet. But she is warming up backstage.

Tags: ATC, Ancillary Terrestrial Component, Cellular, GPS, Interference-Resolution Process, Internet, LightSquared, MSS, Mobile Satellite Service, NTIA, National Telecommunications and Information Administration, Unlicensed Operations and Emerging Technologies, Waiver, Wireless Telephony

Update: Comment Deadlines Set in Video Relay Service Overhaul

Posted on February 1, 2012 by FHH Law

Last month we reported on the FCC’s extensive proposal to overhaul the Video Relay Service, the service which enables people who can’t hear to have near-normal telephone conversations with those who can. The Commission’s Further Notice of Proposed Rulemaking has now been published in the Federal Register, which means that we now know the deadlines for comments and reply comments. Comments on the VRS proposals are due by March 2, 2012, and reply comments by March 19.

Tags: Internet, TRS, Telecommunications Relay Service, VRS, Video Relay Service, Wireline Telephony

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

Posted on January 21, 2012 by Kevin Goldberg

Meet the new year, same as the old year, as webcasting royalty regimen remains largely unchanged.

“Evergreen” stories – The kind of stories that recur regularly. Stories like “NFL reminds non-paying universe never to utter the words ‘super bowl’”. You’ve seen them before.

And if you haven’t yet figured it out, you’re reading one right now.

Welcome to the annual reminder materials that have to be filed with SoundExchange under the statutory license applicable to the digital transmission of sound recordings. This applies to webcasters and streamers.

The fact that this is an evergreen, of course, doesn’t mean you should stop reading right now. Quite the contrary. An evergreen – well, at least this evergreen – comes back every year because it relates to stuff that merits attention every year.

And the webcasting requirements are especially right for the over-and-over-and-over evergreen treatment because I know that, no matter how often I expound on the subject – here on CommLawBlog, at broadcast conferences, in e-mail outreach – there are broadcasters out there who still don’t get it. Maybe they’re unaware of the requirements, maybe they’re aware of but confused by them – or maybe they regard the requirements as something less than “real law”, despite the fact that those requirements have become more and more ingrained into the fabric of the radio industry with each passing year.

Whatever. My mission is to do what I can to lay out the annual SoundExchange filing requirements so that everybody that has to comply with them can know what to do.

Let’s get to it.

Commission Dismisses TV Channel-Sharing Proposal

Posted on January 15, 2012 by Peter Tannenwald

Despite – or, supposedly, because of – its own 2010 channel-sharing proposal, FCC summarily rejects similar 2008 approach advanced by ION

As part of its push to “repurpose” television broadcast spectrum for wireless broadband use, the FCC has, since 2010, been promoting the idea of channel sharing. The idea is that two or more TV stations would share one 6 MHz broadcast channel, each having its own program stream. One of the primary keys to enticing broadcasters to take the bait is that each station stream would have cable and satellite must-carry rights.

Attentive CommLawBlog readers may have thought that that proposal rang a bell – because (as we reported back in 2008) not only had somebody come up with the idea before, but that somebody had formally proposed its own license-sharing deal with features very similar to the approach the Commission is now pushing.

In November, 2008, an assignment application (FCC Form 314) was filed proposing a “share-time” arrangement for a bunch of TV stations licensed to ION Media Networks. A new company, Urban Television, LLC, would acquire “share-time licenses” permitting it to broadcast on the ION channel. ION would continue to be the licensee of, and would continue to operate, its existing stations on the same channels. (According to the application, Urban is owned 49% by ION and 51% by BET Founder Robert L. Johnson’s RLJ Companies.)

While the application was remarkably sparse on technical details – the contract between ION and RLJ was only two pages long, for crying out loud, and the summary of the transaction was only four (double-spaced, at that) – the basic idea boiled down to splitting up a single station’s 6 MHz channel into multiple, separately-licensed digital streams capable of accommodating separately-owned TV stations. As proposed by Urban Networks, each stream would be designated a “television station” and so would be entitled to the same mandatory cable and satellite carriage afforded to every full power station. Urban Networks sweetened the pot by offering a slew of new opportunities for minority entrepreneurs to participate in broadcast ownership and programming.

The broad strokes of Urban’s technical proposal were pretty close to the Commission’s repacking concept – separate licenses within a given 6 MHz channel, and cable and satellite carriage for everyone.

The FCC invited comments, and then proceeded to ignore the proposal even while advancing its own version of channel-sharing.

But now, after a three-year wait, the Commission has summarily dismissed the Urban Networks applications.

Tags: Broadcast, Cable, DTV, ION Media Networks, Internet, Must carry, Must-carry, Share time, Spectrum re-purposing, TV channel-sharing, Urban Television LLC

Update: FCC Invites Comments on Recon re New iTRS Rules

Posted on January 9, 2012 by FHH Law

Last August we reported on new rules imposing a number of restrictions on providers of Internet Telecommunications Relay Service (iTRS). Those rules took effect in October, but if you have an interest in iTRS, heads up. A petition for reconsideration of the new rules was filed, and the deadline for commenting on, or opposing, the petition has just been announced.

Among other things, the new rules put an end to the previous practice of some iTRS providers of assigning free “800” numbers to iTRS users. While iTRS users may still have toll-free numbers, they now have to obtain those numbers like everyone else – from the same companies that provide them to the public at large, subject to whatever fees may be involved (unless a hardship waiver is granted). Each toll-free number must be mapped to a regular “plain old telephone service” (POTS) number and be portable from one carrier to another; numbers that aren’t so mapped must be removed from directories.

The sole petitioner seeking reconsideration – Sorenson Communications, Inc. (Sorenson) – says that the FCC put an unjustified burden on its back.Sorenson, which controls the lion’s share of the iTRS market, complains that iTRS service providers should not be responsible for mapping toll-free numbers to POTS numbers. According to Sorenson, if an iTRS provider doesn’t issue the toll-free number, the provider won’t know (other than by burdensome case-by-case investigation) whether a number provided by its customer is legitimate. The number might not work at all, it might be discontinued after a while, or it might be used for spoofing or other deceptive practices. If the FCC won’t let iTRS providers issue the numbers, it would be better just to take toll-free numbers out of the iTRS database, in Sorenson’s view.

Oppositions to Sorenson’s petition may be filed by January 24, 2012; replies may be filed by February 3.

Tags: Cellular, Certification, Certification requirements, Deadlines, Internet, Internet-based Telecommunications Relay Service, TRS, Telecommunications Relay Service, Toll-free numbers, Wireless Telephony, Wireline Telephony, iTRS

FCC Proposes to Reform Video Relay Service

Posted on December 30, 2011 by Peter Tannenwald

A service that facilitates communications between hearing-impaired and hearing people is in for a major overhaul.

The FCC is trying to update the Video Relay Service (VRS), which enables people who can’t hear to have near-normal telephone conversations with those who can. Did we say “update”? Actually, “complete overhaul” may be more what the Commission has in mind.

Modern technology has done wonders for people with hearing problems. First came Teletype-like devices, called TTY, that sent typed messages over telephone lines. Problem: users on both ends needed TTY units, even if one of them could hear. Then came Telecommunications Relay Service (TRS) in which a Communications Assistant (CA) with a TTY acts as an intermediary between the hearing and the hearing-impaired, speaking aloud what a deaf person types, and typing what a hearing person speaks. TRS thus enables hearing people having no special equipment and deaf people to communicate readily. A variation on TRS, provided over the Internet, is called (inevitably) iTRS.

But that's all very 20th century. Today, the broadband Internet allows live video contact. A CA can provide visual sign language interpretation between a deaf and a hearing person. That is VRS. The overall improvement in the quality of life for deaf people has been dramatic.

Part of the eyebrow-raising fees that we all pay on our telephone bills funds both TRS and VRS. The service is otherwise free to users. Today VRS providers are compensated from the fund on a per-minute basis, and that causes a problem. Since users don’t pay, and vendors are paid per minute, no one has incentives to be efficient or to avoid wasteful use. Indeed, there is a contrary incentive for service providers to stimulate minutes of use, and thus enhance their own income. Service providers’ employees, for example, can pump up usage with subsidized calls, including sales calls to existing and prospective customers. (Some say this crosses over into fraud.) Service providers also want to hinder their users’ switching to a competitor. One technique is to offer free equipment with unique features that don’t work with other providers. Even though the FCC mandates number and equipment portability, there is no requirement that additional features work universally.

With all the free video calling software and services available today to anyone who wants it, the FCC got to thinking.

Tags: Internet, TRS, Telecommunications Relay Service, VRS, Video Relay Service, Wireline Telephony

Lowest Unit Rate and Internet Streaming

Posted on December 21, 2011 by Frank Montero

[Blogmeister Note: The following piece, in a more compact form, appeared in Radio Ink magazine. We thank our friends at Radio Ink for allowing us to post this here as well.]

As we enter the political season, radio stations are being bombarded with reminders about the FCC’s political broadcasting rules – including, of course, the lowest unit rate (“LUR”) requirement for many, but not necessarily all, political spots.

LUR, of course, means that stations must provide all political candidates (federal, state and local) with the LUR for advertising bought during a statutorily-specified pre-election windows. Those windows include the periods: (a) 45 days before a primary election, and (b) 60 days before a general election.

In general terms, the LUR is the lowest rate of the station for a particular class and amount of time during a particular period. “Lowest” means lowest. Thus, candidates must get the benefit of all discounts, including those offered to the station’s most favored commercial advertisers for the same class and amount of time for the same period as that purchased by the candidate. Note that only ads bought by candidates are entitled to receive LUR. Also, federal candidates must provide the “stand by your ad” certification in order to be entitled to receive the LUR.

A spot “class” is one that has particular rights and characteristics, such as morning drive, afternoon drive, fixed position, ROS, etc. In many instances calculating the LUR for different classes of time can be relatively simple. But in other instances – particularly when different classes are bundled into packages for non-political advertisers, the calculation can get tricky fast. Unlike state and local candidates, federal candidates cannot be denied “reasonable access” to a station, which means that they are effectively entitled to any and all commercial opportunities as a standard advertiser. (State and local candidates can be limited to certain classes.) So for federal candidates, stations must determine the per-class LUR for each component of the package and make that rate available to the political advertiser, whether or not he/she buys the whole package

That process is already confusing enough – and it has gotten increasingly so as stations have expanded their streamed content on the Internet. How does Internet streaming of content – including political spots – affect LUR calculations?

Tags: Broadcast, Internet, Internet advertising, Internet streaming, Lowest unit charge, Lowest unit rate, Political broadcasting

ICANN's New Uniform Rapid Suspension System

Posted on December 13, 2011 by Kevin Goldberg

A new way to put the quick kibosh on cybersquatters – but it will help if you’ve registered your trademarks first

For years I’ve urged readers to register their major identifiers – corporate names, slogans, call signs, etc. – as federal trademarks. (Check out a couple of my posts dating back to 2007 and 2009 if you doubt me.) And now the time has come to beat that drum again, with the impending roll-out of a new “Uniform Rapid Suspension System” (URS) designed to make it easier to protect such marks against cybersquatters.

Cybersquatters are folks who register Internet domain names based on recognizable trademarks or tradenames belonging to others. Their goal might be to use the familiarity of the underlying mark to attract a lot of traffic to their site, or it might be to try to sell the domain name to the owner of the trademark/tradename, usually at a ridiculously inflated price.

The Internet Corporation for Assigned Names and Numbers (ICANN) – the international body that regulates domain names, among other things – has a system in place to help rightful holders of trademarks targeted by cybersquatters. That’s the Uniform Domain Dispute Resolution Policy (UDRP),which provides initiate a reasonably quick arbitration process aimed at squelching unauthorized use the mark and transferring control of the infringing domain name to the trademark owner. (Additionally, trademark owners can also sue for infringement in federal court – if they have the time, money, patience and masochistic inclination to undertake a serious piece of litigation.)

But ICANN is reportedly on the verge of implementing the URS.

Tags: Broadcast, ICANN, Intellectual Property, Internet, Internet Corporation for Assigned Names and Numbers, Trademark registration, UDRP, URS, Uniform Domain Dispute Resolution Policy, Uniform Rapid Suspension System, cybersquatting, trademark, trademarks

Update: Effective Date of Revised BPL Rules Set

Posted on November 21, 2011 by FHH Law

Last month we reported on the Commission’s resolution, at long last, of a number of issues relating to broadband-over-power-line technology that had been pending since a 2008 decision by the D.C. Circuit. The FCC’s Second Report and Order has now made it into the Federal Register. As a result, the revised rules are set to become effective on December 21. Feel free to mark your calendar, but you should probably mark it only in pencil – as we noted in last month’s post, it appears that the amateur radio association ARRL may file for reconsideration. (The deadline for recon petitions is also December 21; if ARRL – or anyone else, for that matter – chooses instead to take the revised rules to court, they have until January 20, 2012.)

Tags: ARRL, Amateur, BPL, Broadband-over-Power-Line, Internet

Net Neutrality Update: One Lonely Reconsideration Petitioner

Posted on November 14, 2011 by FHH Law

Could a single petition for reconsideration delay judicial review?

The Commission has announced that it has received one – and, apparently, only one – petition for reconsideration of its Open Internet order released last December (but not published in the Federal Register until September). For the curious among you, the seven-page petition – which is actually titled "Petition for Clarification or Reconsideration" – may be found here. (It asks the Commission to clarify the "special services" aspect of the net neutrality order, particularly as that aspect would affect "enterprise customers".)

The import of this filing lies not so much in the substance of the arguments it presents, but rather in the effect that it might have on the timing of judicial review. As we have previously reported, multiple petitions for review of the Open Internet order have been filed with various federal courts of appeals */; all those petitions are set to be heard in a consolidated proceeding before the U.S. Court of Appeals for the D.C. Circuit. So the train heading toward Judicial Resolution is loaded up and ready to leave the station.

But with the filing of the recon petition, there is now a lingering bit of business still pending before the Commission. Theoretically, the FCC’s disposition of the petition for reconsideration could alter – maybe even eliminate – some arguments that might otherwise have to be resolved by the court on appeal. When such circumstances arise, it is routine – but not absolutely required – for the court to hold its processes in abeyance pending agency action on the reconsideration issues. The abeyance approach often seems the most efficient way of handling such situations. Indeed, if the court steps in and tries to rule before the agency's action has stopped moving around, the result can be (and, in some cases has been) far more disruptive than if the court had chosen to wait. It will be interesting to see whether the FCC (or some other party) files a request for the Court to hold the appeal in abeyance in light of the petition for reconsideration.

In dealing with the recon petition, the Commission will next publish a notice in the Federal Register, alerting the public to the filing of the petition and inviting responses to it. What with the time it will likely take to get that notice into the Register, and then the additional time for responses and replies, the matter won’t be ready for the Commission even to begin to think about it until early next year, at the soonest.

Whether the single petition for reconsideration in the Open Internet proceeding will slow down – or stop entirely – the appellate process is not clear. It’s hard to imagine that a relatively terse recon effort can, or should, delay judicial resolution of the broad range of issues likely to be presented on appeal. But stranger things have been known to happen. We’ll try to keep an eye on things, so check back here for updates.

*/ Speaking of those multiple petitions for review filed in multiple circuits, we note that three of the petitioners are bailing out of the proceeding. The three – People's Production House, Media Mobilizing Project and Mountain Area information Network – had filed their petitions in the 2d, 3d and 4th Circuits, respectively. On October 28, each filed a Motion for Voluntary Dismissal asking the D.C. Circuit to dismiss its respective petition. No reason for the early departures was given (and, truth be told, the Court's rules do not require any such explanation). Suspicious minds might guess that these petitioners filed their initial petitions largely, if not exclusively, in an effort to keep the case out of the D.C. Circuit – but as they hustle out the door now, we'll probably never know for sure.

When is a Requirement Not a Requirement?

Posted on November 9, 2011 by Donald Evans

“Effective dates” can be hard to pin down, thanks to contradictions, omissions and an overall lack of clarity by the FCC – take Form 477 as an example

The November 7, 2011 edition of the Federal Register contained what appeared at first blush to be a fairly routine notice that certain rules had received approval from the Office of Management and Budget (“OMB”) and were therefore going into effect as of the publication of that notice. But when we lift up that seemingly innocent flat rock of a notice, we observe a swarm of ugly questions about just how and when FCC rules become effective. Because FCC regulations have the force of law and are enforceable by fines in thousands and even hundreds of thousands of dollars, it is critical that the public know exactly when compliance is required. Yet that seemingly simple detail – when do we have to obey a new rule? – can be hopelessly obscure, as was certainly the case in the proceeding referenced in the November 7 notice.

That proceeding involved amendments to Form 477, but the same question – i.e., when does a requirement become “effective” – applies to many other FCC proceedings.

Tags: Deadlines, Effective date, Enforcement Activities (Fines, Forfeitures, etc.), Form 477, Internet, OMB, Office of Management and Budget, Wireless Telephony, Wireline Telephony

Update: MORE WCS/SDARS Rules Go Into Effect . . . Finally

Posted on October 31, 2011 by Donald Evans

We reported last month that a few of the FCC’s new rules for Wireless Communications Service (WCS) and Satellite Digital Audio Radio Service (SDARS) licensees finally went into effect – a mere 16 months after the FCC had adopted them. The bizarre delay in getting the rules approved by the federal Office of Management and Budget (OMB) – which must approve agency rules that impose paperwork burdens on people – has never been explained, as far as we can tell. But, after most of the implicated rules finally made it over to OMB for review last summer, those rules were quickly blessed and went into effect on September 19, 2011.

It turns out, however, that a handful of these star-crossed rules were omitted from the original packet sent to OMB for approval. So yet another trip to OMB was necessary. The final seven rules were duly approved by OMB on September 26, 2011, and have become effective as of October 31, 2011 through publication in the Federal Register. The rules in question deal with coordination or certification by or between WCS and SDARS licensees and other parties. (For those of you keeping track, those rules are Sections 27.14(p)(7), 27.72(b), 27.72(c), 27.73(a), and 27.73(b), all of which have now become effective, and Sections 25.202(h)(3), 25.214(d)(2), and 27.53(a)(10), which will now be enforced.)

While this situation may have been anomalous – let’s hope so, at least – it is clearly unacceptable for rules, once formally adopted by an administrative agency, to remain in regulatory limbo for a year and a half pending perfunctory review by another government agency. If the rules were worth adopting in the first place, they should be worth putting into effect right away. Here the notification and coordination requirements established by the rules have not been effective and therefore have not been able to serve their intended purpose for no good reason.

Tags: Cellular, Deadlines, Internet, SDARS, Satellite Digital Audio Radio Service, Satellite Radio, Section 25.202, Section 25.214, Section 27.14, Section 27.53, Section 27.72, Section 27.73, Substantial service standards, WCS, Wireless Communications Service, Wireless Telephony

FCC Fiddles with Rules for Broadband-over-Power-Line

Posted on October 30, 2011 by Mitchell Lazarus

Minor rule changes respond to court order, yet are unlikely to satisfy BPL opponents.

Regulating new technologies can be a slow business. So slow, in fact, that the regulatory process sometimes outlives the usefulness of the technology.

Take broadband-over-power-line (BPL), a technique for delivering Internet access over the same electric wires that come into the house to work the toaster. Early in the last decade, BPL was hailed as the long-awaited “third wire” that would provide real competition to the cable and phone companies for broadband Internet service.

The FCC initially put BPL on a fast track, at least by FCC standards. It released a Notice of Inquiry in April 2003, a Notice of Proposed Rulemaking in February 2004, and rules in October 2004 – just 18 months after the proceeding began. Trust us; this is blindingly fast. The FCC has not moved that quickly with a new technology in recent memory.

Not everybody liked BPL.

Tags: ARRL, Amateur, BPL, Broadband-over-Power-Line, Internet, Unlicensed Operations and Emerging Technologies

Update: Data-Roaming Complaint Process Now In Effect

Posted on October 13, 2011 by FHH Law

Back in April, we reported on an FCC decision mandating that all facilities-based providers of “commercial mobile data service” (CMDS) make available automatic data roaming to other such providers (with some exceptions). As part of that decision, the Commission also established a procedure by which folks could complain about possible violations of the new data-roaming obligation. The data-roaming complaint process is in large measure identical to the process for voice-roaming complaints which has been on the books for some time. (The Commission figured that it was more efficient for all concerned to utilize the same procedures for both types of complaint – particularly since it’s entirely possible that some complainants may have both voice- and data-roaming issues to raise. In that latter case, the complaint process will allow such complainants to initiate a single proceeding, rather than having to file two separate complaints.)

The new CMDS rules became effective last June . . . except for the complaint process, which had to be run through OMB’s Paperwork Reduction Act drill. But OMB signed off on the complaint process last month and, with that milestone now duly noted in the Federal Register, the complaint process, too, has become effective.

Tags: CMDS, CMRS, Cellular, Commercial mobile data services, Complaint process, Data roaming, Internet, Roaming, Roaming charges, Wireless Telephony

Net Neutrality: Verizon Lucks Out in Circuit Lottery

Posted on October 7, 2011 by FHH Law

Leaving the gate at five-to-one odds, D.C. Circuit lands in Victory Lane

The Joint Panel on Multidistrict Litigation (JPML) wasted no time in conducting a circuit lottery with respect to the FCC’s net neutrality order and the winner is (drum roll, please) – the D.C. Circuit! As we reported yesterday, petitions for review of that order were filed in six different U.S. circuit courts of appeals. And as was common knowledge, Verizon was doing everything it could to make sure that the case landed in the D.C. Circuit – up to and including filing a Section 402(b) notice of appeal as well as a Section 402(a) petition for review there.

Turns out Verizon needn’t have worried. Lady Luck was smiling on it when the JPML folks reached into their drum, pulled one of the six entries, and came up with D.C. Sorry to the First, Second, Third, Fourth and Ninth Circuits -- better luck next time.

Presumably this will obviate the need for Verizon to respond to the FCC’s motion to dismiss Verizon’s 402(b) notice of appeal, but who knows?

The moral of this story is simple. If you’re standing behind Verizon in the line to buy a Powerball ticket, take a look over its shoulder and be sure to buy the same numbers that it does.

Net Neutrality: The Circuits are Jammed!

Posted on October 6, 2011 by Harry Cole

Verizon’s Plan C? Plan A Redux!

Judicial junkies and appellate aficionados everywhere, rejoice! The next round in the net neutrality donnybrook has started, and it’s already delivering the kind of rock ‘em/sock ‘em litigation observers could have expected.

Leading the action is Verizon, which picked up where it left off last April . . . literally. As readers will recall, in January – just weeks after the FCC released the full text of its net neutrality order – Verizon lobbed a “notice of appeal” relative to that order into the U.S. Court of Appeals for the D.C. Circuit. (It also filed a separate motion asking that a specific three-judge panel – the same panel that had trashed the FCC in the 2010 Comcast decision – be appointed to hear its appeal.) This was an effort to secure a kind of home-court advantage, since Verizon obviously figures that the D.C. Circuit is likely to be receptive to its arguments.

But the D.C. Circuit rejected that ploy. In a terse order, the Court noted that the net neutrality order was a “rulemaking document” that, under the fine print of the FCC’s own procedural rules, could not be deemed to have been “released” until published in the Federal Register. Since the right to seek judicial review of any FCC order generally doesn’t kick in until the agency’s decision has been “released”, Verizon’s notice of appeal was premature. Court to Verizon: Concentrate and ask again later. The Court left open – sort of – the question of whether review of the net neutrality order could or should be sought under Section 402(a) or 402(b) of the Communications Act.

That last question is of crucial importance, at least as far as Verizon and the FCC seem to think.

Coping With Social Media In The Workplace II

Posted on October 4, 2011 by Kevin Goldberg

NLRB memo sheds light on dos and don’ts for employers

Back in March, 2010, I pointed out that employees’ use of social media can create problems for employers. Now we can thank the Acting General Counsel of the National Labor Relations Board (NLRB) for recently issuing a helpful memo summarizing 14 NLRB decisions all involving (wait for it) the use of social media in the workplace. The memo is short on analysis, much less any attempt to tie the cases together into overarching themes. But it’s a good read anyway, allowing even someone like me (whose primary area of expertise runs to the First Amendment more than to arcane employment law issues) to get a sense of the general rules and come up with some dos and don’ts.

The primary focus of the NLRB decisions: negative employee commentary, usually about the employer, that shows up on Twitter, Facebook or other social media for all to see. Sooner or later, everybody has a bad day at work and snaps in some way. Take Christopher Cristwell, for example. One day the 25-year-old Starbucks barista finally had it up to here with annoying customers, so he wrote a song and uploaded it to YouTube (check out his Starbucks apron; try to ignore that it’s pretty much all he has on). It's kinda catchy. Higher ups at Starbucks didn’t think so, apparently. It kinda got him fired.

While this is an extreme example of an apparently disgruntled employee publicly expressing his disgruntlement, it’s clearly not unique or even rare. Blogs and social media like YouTube, Facebook and Twitter have created new venues for the employee rant. Back in the day, complaints were more confined: a couple of folks blowing off in the breakroom, or maybe an employee crying in his beer with friends, and that’s the end of it: they vented, they moved on, that was that.

But when the complaint shows up in social media, there’s a permanent, totally public record of the complaint. Given that, employers may wonder just how far they can go to keep their employees in line and preserve the company’s image.

Tags: Defamation, Employee, Employees, Employer, Facebook, Internet, Liability, Libel, NLRB, National Labor Relations Board, Potential liability, Social media, Twitter, YouTube

Closed Captions for the Open Internet?

Posted on September 28, 2011 by Christine E. Goepp

The FCC proposes to require closed captioning for TV programming transmitted via the Internet; comment deadlines already set

The FCC has launched a rulemaking to implement the closed captioning sections of the 21st Century Communications and Video Accessibility Act (CVAA). The new rules will impose closed captioning requirements on certain online television programming; they will also require captioning capability for a wide variety of devices that are designed to receive or play back video, potentially including smartphones, computers, tablets, game consoles, video recorders, and set-top boxes.

Closed captioning is the text on a television screen that transcribes the audio portion of the program. (“Closed” means that viewers can turn the captioning on and off at will.) Today most television programming, whether delivered via broadcast, cable, or satellite, must carry closed captioning, and television sets 13 inches or larger must be capable of displaying the captions. But online television – think Hulu – has not been subject to these rules. And the rapidly-proliferating variety of non-television video display devices, like tablets, have not been required to have the technical capability to display captioning.

That’s about to change. Congress gave the Commission until January 12, 2012, to bring the closed captioning rules into the era of mobile and Internet television.

Tags: Cellular, Closed Captioning, Closed captioning of IP-delivered programming, Internet, NPRM, Notice of Proposed Rulemaking, Twenty-first Century Communications and Video Accessibility Act of 2010, Wireless Telephony

Update: Effective Dates Set For Wireless Backhaul, iTRS Revisions

Posted on September 27, 2011 by FHH Law

Last August we reported on some changes, and proposed changes, relating to the Commission’s wireless backhaul rules. Both the Report and Order component of that action (addressing the rule changes that were actually adopted) and the Notice of Proposed Rulemaking component (addressing the changes that are only proposed at this stage) have now been published in the Federal Register. As a result, we now know that the effective date of the new rules will be October 27, 2011. The only loose end is Section 74.605, which mandates registration (in the Commission’s Universal Licensing System) of stationary receive sites for TV pickup stations in the 6875-7125 MHz and 12700-13200 MHz bands. That registration requirement is an “information collection” subject to the Paperwork Reduction Act, so the Commission will be shipping that particular aspect of the new rules over to OMB for its review before the requirement can be finally imposed.

Federal Register publication also establishes the comment deadlines relative to the proposed rules, but those deadlines (October 4, 2011 for comments, October 25, 2011 for reply comments) had already been announced by the Commission back in August; the Register notice confirms them.

Elsewhere in the Federal Register, the Commission has also published the revised rules it adopted last August to align the use of local and toll free numbers by Internet Telecommunications Relay Service (iTRS) users more closely with the way that hearing users use such numbers. (We reported on that decision here.) Those revisions are now set to take effect on October 27, 2011, except for several sections (§§64.611(e)(2), 64.611(e)(3), 64.611(g)(1)(v), 64.611(g)(1)(vi), and 64.613(a)(3), if you’re keeping track) that still need OMB/Paperwork Reduction Act approval.

Net Neutrality Rules Make It to Federal Register

Posted on September 23, 2011 by FHH Law

As predicted on CommLawBlog, effective date is November 20, 2011 . . . but don’t hold your breath

It’s official! The Commission’s Report and Order on the “Open Internet” – a/k/a the net neutrality order – has finally been published in the Federal Register. As we indicated in our post yesterday, the effective date of the new rules is November 20, 2011.

For a refresher course on just what the order includes, check out our posts here, here and here, for starters.

To paraphrase Churchill, Federal Register publication is neither the end nor even the beginning of the end, but it may be the end of the beginning. The scene will now shift to one or another U.S. Court of Appeals, although not necessarily right away: it’s possible that some parties may go back to the Commission for reconsideration of some aspects of the order. That latter scenario could complicate matters, as the courts might be inclined to hold off on considering challenges to the new rules if any administrative reconsideration might lead to changes in the rules. Courts in general prefer not to have to deal with moving targets, and can you blame them? Plus, the Commission would likely prefer to have the courts hold off while the Commission tries to smooth out any rough edges in the rules through the reconsideration process, so you can probably expect the FCC to try to discourage the courts from moving forward pending agency reconsideration if reconsideration is sought. But even one or more parties does petition for reconsideration, the judicial review might still proceed apace. You never know.

Another possible complication could arise if any party seeks a stay of the rules’ effectiveness pending judicial review. It is notoriously difficult to convince either the Commission or the courts to issue stays, but in a hotly contested proceeding of national importance like net neutrality, it might make the most sense to maintain the status quo until the legal issues have been resolved. While there are deadlines for filing for reconsideration (30 days from Federal Register publication of the rules -- but heads up -- in this case it'll be 31, because the 30th day falls on a Sunday) and judicial review (60 days from publication), there is no technical deadline for seeking a stay. As a result, a stay request could be filed pretty much any time – although it would obviously make the most sense to file it far enough in advance of the effective date (November 20) to give the Commission or (more likely) the courts enough time to complete their review of the stay arguments and act before that date.

Stay tuned to CommLawBlog for updates on further developments.

Net Neutrality: Effective November 20?

Posted on September 22, 2011 by FHH Law

It looks like Federal Register publication of the net neutrality rules is set for September 23.

A couple of days ago we confirmed some movement on the net neutrality front, and also noted trade press reports that final publication of the FCC’s magnum opus on the “open Internet” might be coming up soon. Sure enough – CommLawBlog understands that Federal Register publication of the net neutrality order has been teed up for tomorrow, September 23, with an effective date of November 20, 2011 for the new rules. Of course, nothing will be official until the actual publication occurs, but it’s looking like tomorrow will be the day.

Whenever Federal Register publication does occur, it will mark the beginning (but only the beginning) of the next phase of the process. Publication is the starting gun for petitions for reconsideration (due at the FCC within 30 days of Federal Register publication) and initiation of appellate review (due at any U.S. Court of Appeals within 60 days of publication). It’s also possible that some parties may seek a stay of the effectiveness of the rules – obviously, those efforts would have to be cranked up prior to the effective date.

We know for sure that Verizon is likely to take the rules to court. It already tried back in January, 2011 – but found itself on the outside looking in when the D.C. Circuit dismissed its initial notice of appeal as premature. And given the loud and extended debate about the question of governmental regulation of the Internet – a debate ably addressed and, to a degree, deflated by our colleague Mitchell Lazarus last January – the odds are good that Verizon will not be alone.

As we have previously pointed out, there’s also a good chance that petitions for judicial review will be filed with a number of different circuits. Anyone planning on filing such a petition should be sure to review the helpful public notice issued by the FCC’s General Counsel back in January, laying out the important steps to be taken to assure that your entry is included in any judicial lottery that might have to be conducted to pick the circuit that will ultimately hear the appeal. (Call us crazy, but we suspect that that notice was issued in anticipation of multiple petitions going to multiple circuits with respect to the net neutrality order.)

Check back with us here at CommLawBlog for further developments on the net neutrality front.

OMB: Thumbs Up for Net Neutrality Provisions

Posted on September 21, 2011 by FHH Law

After months of quiescence, net neutrality is on the move

The net neutrality rules have cruised past another hurdle: the Office of Management and Budget (OMB) has approved the two “information collection” aspects of the “open Internet” rules that the FCC shipped over there last July (as required by the Paperwork Reduction Act). While OMB approved those aspects almost two weeks ago (on September 9), the official announcement of the approval didn’t make it into the Federal Register until September 21.

OMB approval often marks the end of the rulemaking process in many instances; not so here. New rules generally cannot take effect until their full text has been published in the Federal Register. In many other rulemakings, the Commission takes care of that full-text publication first, and then follows up with getting OMB approval for any incidental “information collections” that may be involved. As a result, OMB approval of such collections is often the last development in the rulemaking process.

It hasn’t gone down that way with net neutrality.

Tags: Cellular, Internet, Judicial Panel on Multidistrict Litigation, Judicial lottery, Net neutrality, Network Neutrality, OMB, Office of Management and Budget, PRA, Paperwork Reduction Act, Wireless Telephony, Wireline Telephony, information collection

Update: WCS/SDARS Rules Go Into Effect . . . Finally

Posted on September 19, 2011 by Donald Evans

Sixteen months after adoption, the new rules kick in

In May, 2010, we reported that the FCC had adopted a set of rules designed to promote technical harmony between the Satellite Digital Audio Radio Service (SDARS) operators and their immediately adjacent electromagnetic neighbors, the Wireless Communications Service (WCS) licensees. A few of the new rules involved a paperwork burden and therefore had to go through the often perfunctory gauntlet of being approved by the Office of Management and Budget (OMB). The process, mandated by the Paperwork Reduction Act (PRA), can often be completed in less than four months.

Not this time.

The first step in the PRA process calls for the FCC to solicit comments from the public about the “information collection” aspects of the new rules. That solicitation involves a pro forma notice in the Federal Register. For some reason it took the Commission eight months to get that less-than-one-page notice into the Register.

The PRA requires a 60-day comment period at that point, a period that wrapped up on March 22. After that, the Commission is supposed to bundle up all the comments it receive, tack on a “supporting statement” explaining everything to OMB, and ship it all over to OMB for its review. In significantly more complicated proceedings we’ve seen the Commission accomplish this hand-off within 24 hours of the close of the 60-day comment period.

Not this time.

Tags: Cellular, Internet, SDARS, Satellite Digital Audio Radio Service, Satellite Radio, Section 27.14, Substantial service standards, WCS, Wireless Communications Service, Wireless Telephony

Update: Last of New 700 MHz LTE Rules Takes Effect

Posted on September 6, 2011 by FHH Law

A couple of weeks ago we reported that all but one of the new rules embracing Long Term Evolution (LTE) as the broadband technology for public safety networks had taken effect. The one lingering loose end was Section 90.1407(f), which requires public safety broadband network operators to submit a certification of compliance prior to deployment of any Radio Access Equipment. The hold-up? That section included an “information collection” and, therefore, needed to be run past the Office of Management and Budget for approval under the Paperwork Reduction Act. But now the FCC can cross that off its to-do list: in a notice published in the Federal Register, the FCC reports that OMB has signed off on the certification requirement, and that requirement has taken effect as of September 6, 2011.

Tags: 700 MHz, D Block, ERIC, Emergency Response and Interoperability Center, Internet, LTE, Long term evolution, Public Safety and Homeland Security Bureau, Public safety broadband, Section 90.1407(f), Wireless Telephony

The FCC Is Watching You . . . or At Least Your Website

Posted on September 2, 2011 by Anne Goodwin Crump

Media Bureau staff continues to check station websites for compliance

A couple-three years ago, we warned readers that the staff of the FCC’s Media Bureau appeared to be browsing the websites of broadcast stations, checking for compliance with the EEO rules. Actually the FCC staffers were then apparently checking for compliance with an imaginary EEO requirement that didn’t – and still doesn’t – exist, but the important take-home message was the same regardless: FCC staffers were inspecting broadcasters’ websites.

It appears that that practice continues.

Recently, an FCC staff member emailed us, questioning whether one of our clients had posted its annual EEO report on its website. (As noted below, the rules do require such posting.) The staffer reported that she had been unable to find the report on the site. Happily, we were able to confirm (and demonstrate) that the report had in fact been posted – albeit not necessarily in the most obvious place on the station’s site – and the staffer apparently went away satisfied.

But that encounter prompts us to remind broadcasters that their websites are wide-open for inspection by anybody, including FCC staffers. And nowadays those staffers are apparently motivated to engage in such inspection in connection with the license renewal process, which is swinging into high gear. (Two batches of renewals have been filed already, with more to come at two-month intervals for the next few years.)

The Commission’s rules currently specify only one type of “public file” document that must be included on a station’s website (assuming, of course, that the station has elected to have a website): the licensee’s most recent annual EEO report, the specs for which may be found in Section 73.2080(c)(6) of the rules. (Obscure regulatory factoid: The public file rule technically still requires that DTV transition education reports – Form 388 – be posted on websites. However, since the retention period for those reports is only one year, and since all but a dozen or so TV stations completed their move to digital more than a year ago and thus no longer have to file Form 388, the continuing impact of that particular requirement is minimal at this point.)

Of course, stations with fewer than five full-time employees are exempt from the annual EEO report requirement. But if you are not exempt, and if you do have a website, it would be a good idea to be sure that your most recent EEO report is posted there. While the rule does not specify how prominently the report is to be posted, it would probably be a good idea to make it pretty darned easy to get to the report from the station’s home page. That should assist FCC staffers in locating the report at your site – thus enabling them to move on to somebody else’s site that much quicker.

Our recent interaction with the staff did not indicate that the FCC is looking to dole out fines to stations that don’t happen to have posted their reports as required. But you never know.

Tags: Broadcast, EEO Reports, Enforcement Activities (Fines, Forfeitures, etc.), Form 397, Internet, Local public inspection file, Public Inspection File, Station Websites

Wireless vs. Broadcast: Chalk One Up for Wireless

Posted on August 23, 2011 by Peter Tannenwald

FCC moves to protect broadband licensees from TV Ch. 51

Perhaps frustrated at the slow pace of Congressional cooperation in passing incentive auction legislation to allow it to take a meat cleaver to the TV spectrum and serve up a chunk to wireless operators, the FCC is starting to chip away at TV with a small ice pick. The first move is to put Channel 51, the uppermost TV channel, on ice, imposing an immediate freeze on applications for new stations and improvements in existing stations on that channel.

As we wrote back in March, Channel 51 is immediately adjacent to the 698-746 MHz band (formerly TV Channels 52-59), which have been reallocated to wireless services. Channel 52 has been auctioned, and the winning bidders don’t like the idea that the high power used by TV stations might blast their smaller wireless devices into oblivion. They asked the FCC to, in effect, create a guard band on the TV side of the border rather than the wireless side by stopping any growth on Channel 51.

The FCC has obliged, with a combination of steps that freeze and thaw at the same time, apparently intended both to stop growth on, and to encourage abandonment of, TV Channel 51.

Remember that while the FCC is considering how much of the TV band it can chop off for wireless use, it has already frozen growth in the entire TV band. No new applications or channel changes are allowed for full power stations, and no new applications are being accepted for low power TV stations on any channel. All of this is to ensure a fixed database when the FCC is ready to use the cleaver.

But clearing Channel 51 has risen to a higher priority than having a fixed database, so the scramble is on.

Tags: Broadcast, Cellular, Channel 51, Internet, Range war, Wireless Telephony

New 700 MHz LTE Rules Take Effect

Posted on August 18, 2011 by FHH Law

Last February we reported on the Commission’s adoption of new rules embracing a specific broadband technology, Long Term Evolution (LTE), for public safety broadband networks. With the publication of those rules in the Federal Register, they have become effective (with one minor exception) as of August 18, 2011. The one exception? That would be Section 90.1407(f), which requires public safety broadband network operators to submit a certificate of compliance prior to deployment of any Radio Access Equipment. Since that requirement constitutes an “information collection”, it has to be run through the Paperwork Reduction Act drill (i.e., review and approval by the Office of Management and Budget) before it can become effective. We’ll let you know when that happens.

Tags: 700 MHz, D Block, ERIC, Emergency Response and Interoperability Center, Internet, LTE, Long term evolution, Public Safety and Homeland Security Bureau, Public safety broadband, Wireless Telephony

Reins Tightened on iTRS Providers

Posted on August 8, 2011 by Peter Tannenwald

Commission adopts certification requirements for providers, limits on toll-free numbers for users

In an effort to reduce unnecessary costs while assuring that deaf and hard-of-hearing people will still enjoy essentially the same access to telecommunications services as everybody else, the Commission has adopted several changes to the rules governing Internet Telecommunications Relay Services (iTRS).

iTRS is the short-hand term for a couple of related services – Video Relay Service and IP Relay – that permit deaf and hard-of-hearing folks to communicate by telephone, over the Internet, with persons with or without normal hearing. iTRS provide those folks a modern alternative to the crude “TTY” typewriter-like keyboards through which they previously interconnected with the phone system. The basic concept is that, with inexpensive webcams and broadband connections, deaf/hard-of-hearing users can access the services of interpreters who can not only type words but also speak with sound to hearing persons and with American Sign Language to deaf persons. (Want to know more about iTRS? Check out the FCC’s information page on the subject.)

The cost of providing iTRS service is picked up by federal and state governments (which in turn get the funds by including a surcharge on everybody’s telephone bill). With annual costs running close to $740 million, there’s a boatload of money at stake – and, needless to say, with opportunities to game the system in great supply, temptation abounds.

Until now, that is – if the FCC has its way.

Tags: Certification, Certification requirements, Internet, Internet-based Telecommunications Relay Service, TRS, Telecommunications Relay Service, Toll-free numbers, Wireless Telephony, Wireline Telephony, iTRS

700 MHz Public Safety Service: Being a Governmental Entity Is Just Not Enough

Posted on July 25, 2011 by Peter Tannenwald

FCC declares that government users must show that their proposed uses of spectrum qualify as “public safety service”

The FCC has issued a declaratory ruling clarifying eligible uses of broadband public safety frequencies in the 700 MHz band. For the time being, it has focused only on which governmental agencies may use the spectrum, reserving until later the question of whether other entities may also participate.

When the upper 700 MHz band (consisting of TV Channels 52-69) was taken away from television broadcasting and reallocated to wireless services, the frequencies were divided between commercial and public safety entities. The 763-768 and 793-798 MHz bands were reserved for broadband public safety use; they have been licensed to the Public Safety Broadband Licensee (PSBL). The idea is that the PSBL will operate a nationwide compatible network and will lease capacity to local and state public safety entities. As the plan was originally conceived, a commercial partner – which was to be chosen by auction to build the network – would be allowed to share unused capacity. The problem is that no commercial entity bid the required minimum in the auction, so the PSBL now has a license but no one to build out the network.

Not wanting to wait to deploy, several entities applied for waivers to build their own broadband systems now, and the FCC has granted 21 of them. Financing is obviously an issue for these systems, so the waiver recipients are looking to maximum permissible use. To that end, the City of Charlotte, North Carolina, asked the FCC for a declaratory ruling that essentially any use of the spectrum by a governmental entity would constitute “public safety services” as required by Section 337(f)(1) of the Communications Act. That section includes a very specific definition that applies only to the 700 MHz band spectrum, but applies to both broadband and narrowband channels in that band. In response, the FCC declined to go quite as far as Charlotte might have liked, but still managed to leave a considerable number of doors open to Charlotte and other governmental users.

Tags: 700 MHz, Charlotte, North Carolina, Declaratory ruling, Governmental users, Internet, PSBL, Public Safety Broadband Licensee, Public safety service, Section 337(f), public safety

Net Neutrality Lands at OMB

Posted on July 7, 2011 by FHH Law

Next round of Paperwork Reduction Act review of the “open Internet” information collection requirements starts at OMB.

We have progress to report on the net neutrality front! Well, sort of.

The Commission has shipped two “information collection” aspects of the “open Internet” rules over to the Office of Management and Budget for its review. Yes, we know that we expected the Commission was going to take care of this chore a couple of months ago – but let’s get past that. The fact is: OMB review of net neutrality has begun, as required by the Paperwork Reduction Act (PRA).

(If you’re confused about the whole OMB review process and how it fits into the plan to effectuate the net neutrality rules, check out our earlier post addressing such things.)

Interested parties may submit their comments on either the net neutrality formal complaint process and/or the mandatory disclosure of network management practices, performance and commercial terms of access. You can find directions on how to do so in the notices (linked in the preceding sentence) published in the Federal Register. This round of comments will go to OMB, rather than the Commission (which fielded the last round of such comments starting back in February). You’ve got until August 8, 2011 to fill the OMB in on your views.

When the PRA review process started back in February, we observed that the information the FCC had made available up to that point provided less than clear guidance about just what the various new net neutrality requirements will entail. The latest notices announcing OMB review don’t add anything – which means that would-be commenters are still flying at least somewhat blind.

Note that the Federal Register notices announcing this next step in the PRA process do NOT mean either that the net neutrality rules are now effective, or that they are now subject to judicial review. Before anybody will be able to appeal the new rules, those rules will have to be published in toto in the Federal Register.

And before the new rules can be effective, they not only will have to have been published, they will also have to have been approved by OMB. That won’t happen before August 8 for sure – but it could happen very soon after that date, if OMB has no problem with the rules. We’ll keep you posted.

Tags: Cellular, Deadlines, Internet, Net neutrality, Network Neutrality, OMB, Office of Management and Budget, PRA, Paperwork Reduction Act, Wireless Telephony, information collection

FCC Targets Spoofing

Posted on July 6, 2011 by Christine E. Goepp

It’s not nice to try to fool caller ID services – in fact, it’s now illegal, with violators looking at possible $10K penalties.

“Spoofing” a phone call – that is, hiding your true identity from caller ID services – may sound like a harmless prank, but it’s a serious enough problem to have attracted the attention of Congress. Last year Congress passed (and, in December, President Obama signed) the “Truth in Caller ID Act”, making it unlawful to transmit misleading or inaccurate caller ID information “with the intent to defraud, cause harm, or wrongfully obtain anything of value.” The law charged the FCC with responsibility for enforcing the new prohibition. In late June, the Commission dutifully revised its own rules to reflect the new law; it also issued a report (ordered up by Congress) on caller ID in new telephone technologies.

The upshot of all this: a new anti-spoofing regulation with a potentially stiff penalty (max $10K for each violation) and a request that Congress broaden the FCC’s authority to reach more spoofers.

Spoofing provides many opportunities well beyond the merely mirthful; in fact, it affords the motivated criminal plenty of ways to wreak serious damage. A malicious caller might, for example, elicit a social security number from an individual by appearing to be from a bank or government office. Or circumvent a bank’s security screening by appearing to be the account holder, calling from the number of record. Or, in a really creepy use, make threatening calls from the recipient’s own number, thus appearing to be actually in the house. Nothing mirthful there.

Tags: ANI, Automatic number identification, Cellular, Enforcement Activities (Fines, Forfeitures, etc.), Intercarrier compensation, Internet, Section 503, Spoofing, Truth in Caller ID Act, Unlicensed Operations and Emerging Technologies, Wireless Telephony, caller ID

Outage Reports On the Horizon for Interconnected VoIP Providers?

Posted on June 26, 2011 by Christine E. Goepp

Proposed extension of outage reporting requirements beyond traditional wireline and wireless providers underscores increasing significance of VoIP and Internet providers.

When communications systems go down, bad things can happen. Network system outages – be they wireless, wireline, satellite or cable – are more than an inconvenience. Those systems provide a vital link between consumers and the public safety services they depend on, particularly in emergencies. Largely because of that, the Commission has, for nearly 20 years, sought to stay informed about network system outages. Starting with wireline carriers (in 1992) and expanding to include wireless, satellite and cable folks 12 years later, the Commission has required carriers to report network outages that reach certain levels of seriousness. According to the Commission, these reports permit the Commission to “address communication system vulnerabilities and help prevent future outages.” (The reporting requirements are set out in Part 4 of the FCC’s rules.)

As a further indication of the increasing significance of VoIP on the communications landscape -- and, consequently, VoIP's increased potential exposure to regulation -- the Commission has issued a Notice of Proposed Rulemaking (NPRM) which would extend its Part 4 outage reporting requirements to interconnected VoIP and broadband Internet access service providers (including Internet backbone network providers). The Part 4 rules require providers to report outages or serious degradations that last 30 minutes or longer and meet certain other thresholds (such as number of calling minutes affected).

Tags: Internet, NPRM, Network Outage Reporting System, Notice of Proposed Rulemaking, Outage reports, Unlicensed Operations and Emerging Technologies, VoIP, Voice over Internet Protocol, Wireless Telephony

"I See Dead Proceedings."

Posted on June 20, 2011 by Harry Cole

With FCC’s blessing, CGB proposes to toss 1,000 – 1,500 (or so) “dormant” proceedings.

In February, 2010, the Commission issued a low-profile Notice of Proposed Rulemaking addressing a number of procedural issues of seemingly minor interest to most of us. In a section titled “Management of Dockets”, the Commission observed that it has more than 3,000 open dockets on its books, many of which “have seen little or no activity in years.” No surprise there. Conjuring dark images of Docket Death Panels, the Commission ominously opined that “some open dockets may be candidates for termination.” The Commission then proposed to authorize its Consumer and Governmental Affairs Bureau (CGB) to “review all open dockets”, identify “candidate[s] for termination”, consult with the relevant Bureaus and then, WHACK, pull the plug on dockets in which, for example, “no further action is required or contemplated.”

Fast forward to February, 2011. In a similarly low-key order, the Commission did indeed empower CGB to euthanize what the FCC now characterized euphemistically as “dormant proceedings”. In doing so it gave CGB virtually no guidance to help it identify such proceedings. Candidates for termination with prejudice “might include dockets in which no further action is required or contemplated and dockets in which no pleadings or other documents have been filed for several years” – but would not ordinarily include “proceedings in which petitions addressing the merits are pending”, unless the parties consent.

Armed with that nebulous mandate, CGB has released for comment its initial list of “dormant proceedings” which, absent objection, will be summarily flushed down the tubes in a couple of months. That list is set out in a 97-page table containing more than 1,000 separate line entries. When you dig into them (see below for how you can do this – the process is not as simple as you might think), you find that a fair number of those individual line entries in turn contain as many as 30 or 40 separate and distinct items. From a casual back-of-the-hand calculation, we’d say that CGB is proposing to dump somewhere close to 1,500 separate and distinct proceedings.

So the FCC could be relieving itself of up to half of its open dockets with little more than a single perfunctory notice.

One question: When can we get CGB to come to our office to work its magic with our backlog?

Tags: Broadcast, Cable, Cellular, Consumer and Governmental Affairs Bureau, Deadlines, Dormant proceedings, Internet, OCG, Satellite Radio, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireline Telephony

S.911: Senators Set Sights On Spectrum

Posted on June 14, 2011 by Lee Petro

Bipartisan bill provides most detailed glimpse to date into possible spectrum re-purposing and incentive auction mechanism - but leaves many questions unanswered

The Senate Commerce Committee has approved S.911, a bill – co-sponsored by the Committee’s Republican and Democratic leaders – which provides perhaps the most detailed legislative effort advanced thus far to move incentive spectrum auctions closer to reality. (Check out our posts on previous incentive auction bills here.) The bill now goes to the full Senate for its consideration, which is far from guaranteed at this point. Additionally, action on some corresponding bill (which has not yet surfaced) in the House will be necessary before S.911 becomes law. So we still have a ways to go before incentive auctions become reality.

But given its bipartisan origins and the fact that it’s already made it to the full Senate, S.911 is probably the horse to watch in the race among incentive auction bills.

The bill’s primary focus is the creation of a public safety wireless network which would be controlled by a new governmentally-created corporation (the “Public Safety Broadband Corporation” (PSBC)). TV spectrum re-purposing enters into the picture as a potential source of funding, mainly through the sale of "reclaimed" spectrum to wireless companies. (The bill spreads out over more than 100 pages; the spectrum re-purposing/incentive auction portion takes up only about 20 pages or so.) For purposes of this post, let’s focus on the TV spectrum re-purposing/incentive auction aspects of the bill.

Among other things, the bill as originally advanced by Senators Rockefeller and Hutchison provides that:

Tags: Broadcast, Cellular, Incentive Auction Relocation Fund, Incentive auction, Incentive auction bill, Internet, Public Safety Trust Fund, S.911, Senator Hutchison, Senator Rockefeller, Spectrum re-purposing, Wireless Telephony

Update: Comment Deadlines Set In BRS/EBS Rulemaking

Posted on June 7, 2011 by FHH Law

Last week we reported on a proposal to relax out-of-band emission limits for the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), operating in the 2496-2690 MHz band (a/k/a the 2.5 GHz band). Acting with impressive speed, the Commission has now published that NPRM in the Federal Register. That, in turn, sets the dates for comments and reply comments. As we indicated in our original post, the comment periods seem somewhat abbreviated – comments are due by July 7, 2011, reply comments by July 22 – so if you’re of a mind to submit some thoughts to the Commission, you should probably get on it sooner rather later.

Tags: 2.5 GHz band, 2496-2690 MHz, 4G, BRS, Broadband Radio Service, Cellular, Clearwire, Deadlines, EBS, Educational Broadband Service, Internet, LTE, Nextwave, Notice of Proposed Rulemaking, Out-of-band emission limits, WCAI, Wireless Communications Association International, Wireless Telephony

Broader Broadband For 4G Networks?

Posted on June 1, 2011 by Peter Tannenwald

FCC contemplates relaxation of out-of-band emission limits in the 2.5 GHz band.

The FCC has proposed to relax out-of-band emission limits for the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), operating in the 2496-2690 MHz band (a/k/a the 2.5 GHz band). These services were formerly known as MMDS and ITFS. Their spectrum is now largely leased to Clearwire, Nextwave, and others for 4G mobile broadband services.

Clearwire is the largest current user of the band. It relies on WiMAX technology, which typically utilizes 10 MHz channels. But Clearwire and other service providers are thinking that wider bandwidths might be in order. Clearwire would like to migrate to WiMAX2, while other service providers (and maybe Clearwire as well in the future) are considering Long Term Evolution-Avanced (LTE). Both WiMAX2 and LTE contemplate channel bandwidths of 40-100 MHz.

Tags: 2.5 GHz band, 2496-2690 MHz, 4G, BRS, Broadband Radio Service, Cellular, Clearwire, EBS, Educational Broadband Service, Internet, LTE, Nextwave, Notice of Proposed Rulemaking, Out-of-band emission limits, WCAI, Wireless Communications Association International, Wireless Telephony

The Chill Is On For TV Channel Changes

Posted on May 31, 2011 by Davina Sashkin

Media Bureau announces freeze on TV channel change rulemaking petitions – effective May 31, 2011

For more than a year – since the FCC first started making noises about possibly “re-purposing” their spectrum as part of the National Broadband Plan – television broadcasters have been living under an ominous sense of impending doom . . . or, if not “doom”, at least, major disruption.

That ominous sense just got more ominous.

In a terse public notice, the Media Bureau has announced a freeze on “the acceptance of rulemaking petitions to change television channels”, effective immediately (i.e., as of May 31, 2011). The purpose of the freeze is to “permit the Commission to evaluate its reallocation and repacking proposals and their impact on the Post-Transition Table of DTV Allotments”. The Bureau also points out that licensees have been able to submit channel change petitions since May, 2008 (when the last pre-DTV transition freeze was lifted), so it figures that everybody’s had plenty of time to determine whether they might prefer a different channel.

The freeze could indicate that the Commission is already narrowing down its re-purposing options; alternatively, it might mean merely that the Commission hopes to minimize any complications that would arise from a continually changing DTV Table of Allotments. Whatever may be the case, if you’re a full-power TV licensee, it looks like the channel you happen to be on now is the channel you’re going to be on for the foreseeable future. Presumably, the Commission will eventually decide how it can shuffle spectrum around to squeeze 120 MHz or so out of the TV band. In that event, assuming that Congress goes along with things, you may find yourself moved around in what’s left of the TV band. (Rulemaking petitions that were already on file with the Commission’s Secretary as of May 31 will continue to be processed, but no others. So if you are hoping to change and were lucky enough to get your proposal on file before May 31, congrats.)

Tags: Broadcast, Cellular, Deadlines, Freeze, Freeze on TV channel changes, Internet, NBP, Spectrum re-purposing, TV freeze, Wireless Telephony

More Trolls On A Roll

Posted on May 25, 2011 by Kevin Goldberg

Four more decisions from U.S. District Judge Beryl Howell, thousands more disappointed "John Doe" defendants. Welcome to Washington, DCT (District of Copyright Trolls)!

To paraphrase Chief Brody, they’re gonna need a bigger courtroom down at the U.S. District Court for the District of Columbia. That’s because Judge Beryl Howell has been at it again. As we reported last month, in March Judge Howell hung out the welcome sign in a big way for plaintiffs seeking to bring “John Doe” lawsuits alleging copyright infringements by 1,000+ unnamed defendants. And now she’s issued four more similar decisions in cases with as many as 5,000 defendants! (Check them out here, here, here and here.)

Welcome to D.C., your go-to spot for BitTorrent litigation. Troll out the red carpet!

Tags: Ars Technica, BitTorrent, Call of the Wild Movie v. Does, Copyright, Copyright infringement, Copyright troll, EFF, Electronic Frontier Foundation, First Amendment, Intellectual Property, Internet, John Doe lawsuits, Judge Beryl Howell, U.S. District Court for the District of Columbia, Wired

S.978: Sending Illegal Streamers Up The River?

Posted on May 19, 2011 by Kevin Goldberg

Senate bill would criminalize unauthorized streaming.

The White House and Congress have finally managed to agree on something. We’ll concede that it’s a relatively minor issue . . . unless you’re engaged in the illegal streaming of copyrighted content, in which case you could be looking at up to five years, maybe even ten, in the Big House and a hefty fine to boot.

In March we reported on a “White Paper” in which the President’s U.S Intellectual Property Enforcement Coordinator laid out a number of “Intellectual Property Enforcement Legislative Recommendations”. One of those recommendations: Congress should “clarify that [copyright] infringement by streaming . . . is a felony in appropriate circumstances.”

The White Paper wasn’t clear whether the recommendation applied to music, video, or both. Nor did it say exactly what standard of culpability would apply. For instance, would innocent mistakes – the streaming of audiovisual content for which you thought you had cleared all copyrights – be subject to the felony penalty? We surmised that the Administration was mainly concerned with illegal streaming of video, which is occurring with increasing regularity but not technically punishable under existing law. (Federal criminal law currently applies to illegal file sharing or downloading, but not to instantaneous streaming.)

A bipartisan trio of Senators has now acted on the White House’s recommendation. On May 12, 2011, they introduced S. 978, which would amend 18 U.S.C. §2319 and 17 U.S.C. §506 to include streaming within the definition of felonious criminal conduct. (For those of you who keep track of such things, Minnesota Democrat Amy Klobuchar is technically the bill’s sponsor, but she is joined by fellow Democrat Christopher Coons from Delaware and a Republican from Texas, John Cornyn.)

The bill makes two fundamental changes involving 17 U.S.C. §506 (the section of the Copyright Act that defines “criminal infringement”, i.e., the kind of copyright infringement that can result in jail time) and 18 U.S.C. §2319 (the section of the federal criminal code that spells out the potential penalties for criminal infringement).

Tags: 17 U.S.C. 506, 18 U.S.C. 2319, Broadcast, Copyright, Copyright infringement, Intellectual Property, Internet, S.978, Senator Coons, Senator Cornyn, Senator Klobuchar, Streaming, U.S Intellectual Property Enforcement Coordinator, webcasting

Update: New Roaming Rules To Take Effect June 6

Posted on May 6, 2011 by FHH Law

Last month we reported on changes in the Commission’s rules governing automatic data roaming. The effective date of most (but not all) of those rules has just been announced. Mark your calendars: the new roaming rules will take effect on June 6, 2011. However, revised Section 20.12(e) will not become effective just now. That section – which provides for the filing of formal or informal complaints about possible violations of the data roaming rules – involves “information collections”, so it’ll have to wait until OMB has signed off on it.

Tags: CMDS, CMRS, Cellular, Commercial mobile data services, Data roaming, Deadlines, Internet, Roaming, Roaming charges, Wireless Telephony

Update: FCC Process Reform Hearing Date Set

Posted on May 5, 2011 by FHH Law

And so it begins . . . on Friday the 13th.

A couple of weeks ago we reported about Congressional interest in FCC process reform, and the likelihood that hearings on that subject might be just around the corner. And sure enough – the Communications Subcommittee of the House Energy and Commerce Committee has announced that it will hold a hearing on FCC Process Reform, May 13 at 9:30 a.m. (if you’re in town and want to pop in for a look-see, stop on by Room 2123 in Rayburn Building). Note that this is a rescheduling – the hearing was originally set for May 3. The listed witnesses are Chairman Genachowski and the four commissioners.

As noted in our earlier report, Subcommittee Chairman Greg Walden (R-OR) believes basic reforms can be addressed in a “positive and constructive way.” With issues such as net neutrality, merger review (AT&T/T-Mobile anyone?) and agency sunshine rules in play, the upcoming hearing will provide an early public test of that theory.

Tags: Anna Eshoo, Broadcast, Cable, Cellular, Cliff Stearns, Deadlines, Enforcement Activities (Fines, Forfeitures, etc.), FCC process reform, Greg Walden, House Communications Subcommittee, House Energy and Commerce Committee, Internet, Satellite Radio, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireline Telephony

Some More Observations About Copyright, Content Distribution And Technological Innovation

Posted on May 3, 2011 by Kevin Goldberg

More signs of the need for a fresh approach to copyright licensing for audiovisual content

In recent months I’ve suggested – here and here, for example – that changes in the video delivery landscape around us demand a good, hard look at the various laws which govern transmission and, especially, retransmission of audiovisual content usually seen on television. It’s fair to say that, while I don’t advocate any particular approach, I support change that brings the various laws in this area into line with the viewing habits of an increasing amount of television watchers.

But that would entail a herculean effort involving potential changes to the regulations of two major government agencies: the FCC and the Copyright Office. The FCC would be looking, or re-looking, at such things as the definition of an MVPD as well as rules governing must carry, retransmission consent, fin/syn and program exclusivity. The Copyright Office would have to examine its regs covering cable and satellite compulsory licenses. Changes there and elsewhere would have to be justified in light of actual evidence that the media delivery landscape is changing. (I’m sold on this, but – if you can believe this – the Administrative Procedure Act requires more than my personal stamp of approval).

So that’s why I’m happy to see signs of serious inquiry on two fronts.

One such sign is the FCC’s Further Notice of Inquiry in the Matter of Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming (FNOI), released on April 21. On its face, this is a pretty mundane request by the FCC for information relating to competition in the video marketplace. In fact, it’s the Commission’s 14th annual review since Congress first directed the FCC to conduct such reviews back in the 1992 Cable Act.

Tags: Broadcast, Cable, Compulsory licenses, Compulsory licensing, FilmOn.com, Fox, Intellectual Property, Internet, News Corporation, Program distribution, Scripps Network Services Interactive, Section 111, Section 119, Section 122, Time Warner Cable, Unlicensed Operations and Emerging Technologies, iPad, ivi TV

FCC Process Reform: Change In The Air?

Posted on April 26, 2011 by Rob Schill

Key Congressional figures signal interest in examining the way the FCC does business

Have any thoughts on how the FCC could operate better? Increasingly, a number of influential members of Congress seem to believe they do. Momentum continues to build on Capitol Hill for reform of the Federal Communications Commission with recent statements – and hints of action – from key members of the House Energy and Commerce Committee.

Speaking at the American Cable Association’s annual summit on April 13, House Communications Subcommittee Chairman Greg Walden suggested there would be a hearing and movement on legislation on FCC reform in the near future. Expectations are that the five FCC commissioners will be called to testify before the subcommittee within a few weeks of Congress’ return from recess.

Walden made a strong pitch for Congress to actively oversee the agency, stating: “Failure to do that only gives them license to do other things they don't have the authority to do.” Walden, of course, introduced a House-passed resolution to invalidate, as an overreach of FCC authority, the Commission’s recent net neutrality rules.

Walden expressed his belief that both the Democrat and Republican FCC commissioners agree on the basic need to improve how the agency functions (see, e.g., “Copps, Commissioner, sunshine rules” and “Baker, Commissioner, merger review”) and that such reform can be done in a “positive and constructive way”.

And Walden is not alone in his interest in Commission process reform.

Tags: Anna Eshoo, Broadcast, Cable, Cellular, Cliff Stearns, Enforcement Activities (Fines, Forfeitures, etc.), FCC process reform, Greg Walden, House Communications Subcommittee, House Energy and Commerce Committee, Internet, Satellite Radio, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireline Telephony

FCC Seeks Input On Broadband Consumer Information

Posted on April 17, 2011 by Mitchell Lazarus

Goal is to keep buying public informed.

Recall the FCC’s shock, last June, at discovering that 80% of Americans do not know their broadband speeds. It took almost a year, but the FCC is now striving to bring the light of knowledge into the darkness of consumer ignorance. Its lantern of truth (we’ll stop the metaphor soon) is a public notice.

What information, asks the FCC, should providers supply to consumers? The Commission proposes not just the usual megabits-per-second, but matters like latency, jitter, peak-hour performance, and short-term speed increases. (The public notice does not explain these.) Which of these kinds of data should broadband providers disclose? Should the information come in standardized formats? How often should it be updated? And so forth. Read the details here.

We suspect the people who care about latency and jitter probably know how to ask about it. But most of us – are you sitting down, FCC? – most of us just don’t care.

Broadband service has become a utility, like electricity, gas, water, telephone, or cable. The average consumer has no interest in how many gallons per minute his water service can deliver. The water either works, or it doesn’t. Ditto for electricity, gas, and so on. We care mightily when any of these fails, including broadband service. But as long as it stays on, and more or less meets our needs, the technical details are of little concern.

We do have a couple of suggestions for the FCC. Although to most people reliability matters more than latency or jitter, it is not in the FCC’s proposed list of disclosures. It should be, with significant rate rebates when outages go over the advertised limit. We also want to see an absolute, unconditional ban on the phrase “up to” in ads for broadband speeds. Providers can specify a minimum, or a range, or a guaranteed average, but claiming speeds “up to” some number is just an exercise in creative writing.

Those wishing to respond to the FCC’s public notice should file comments by May 26, 2011, and reply comments by June 16, 2011.

Tags: Broadband speed, Cellular, Internet, Need for speed, Wireless Telephony

Update: Reply Comment Deadline Extended In TV Spectrum Re-Purposing Proceeding

Posted on April 15, 2011 by Davina Sashkin

If you’ve been planning on filing reply comments in response to the FCC’s TV spectrum re-purposing NPRM but you haven’t gotten around to it yet, you’re in luck! Everybody’s been given an extra week, thanks to an extension that pushes the reply comment deadline to next Friday, April 25. The extension comes at the request of several broadcasters and state broadcast associations concerned that the original reply comment deadline fell immediately after the close of the NAB convention in Las Vegas.

Spectrum auctions and repacking were among the biggest items on the convention agenda for all concerned – FCC staff, Commissioners and industry alike. As a result of that opportunity to share information and insights, many interested parties are now in a better position to formulate reply comments that can contribute significantly to the Commission’s on-going consideration of the complicated issues on the table.

The last chance to say your piece (at least at this stage of the proceeding) is now fast approaching.

Tags: Auction Revenue Sharing Plan, Broadcast, Cellular, DTV, DTV Transition, Deadlines, Internet, Julius Genachowski, Michael Copps, NBP, NPRM, National Broadband Plan, Notice of Proposed Rulemaking, Section 2.106, Spectrum re-purposing, Spectrum redistribution, TV channel-sharing, TV spectrum, Wireless Telephony

Update: New Comment Deadlines In VoIP/Accessibility Proceeding

Posted on April 12, 2011 by FHH Law

On March 31 we reported on a couple of VoIP-related NPRMs, including one item looking toward making VoIP and similar services easily accessible to and usable by persons with disabilities. Despite the fact that that NPRM proposes sweeping changes in the nature of VoIP obligations and even the scope of the FCC’s regulatory reach (which would be extended into considerable technical minutiae), the deadline for comments on the proposals was originally set for April 13. But now, at the request of a number of organizations, the Commission has extended the comment deadline to April 25, 2011, and the reply deadline to May 23, 2011. That’s still not a lot of time, but it does provide some breathing room.

Tags: ACS, Advanced communications services, CVAA, Cellular, Deadlines, Internet, NPRM, Notice of Proposed Rulemaking, Section 103(b), Section 104, Section 255, Skype, TRS, TRS Fund, Telecommunications Relay Service, Twenty-first Century Communications and Video Accessibility Act of 2010, VoIP, Voice over Internet Protocol, Wireless Telephony

FCC To Mobile Browsers: Roam, Roam On The Range

Posted on April 11, 2011 by Donald Evans

FCC mandates data roaming – sort of – with new rules for roaming rights for new universe of providers, but with strings attached

In a widely anticipated move, the FCC has mandated that all facilities-based providers of “commercial mobile data service” make available automatic data roaming to other such providers – with some important exceptions. This mandate was strongly lobbied for by almost everyone in the industry – except AT&T and Verizon (collectively, The Big Two), who strongly opposed it. The issue of data roaming has become more and more pressing as mobile communications have rapidly morphed from a voice-centric, common carrier-centric, circuit-switched-centric system to one where voice applications are a small subset of packet-switched data offered by carriers and non-carriers. The Internet is all.

The old mandatory roaming rule which the new requirement supplements applied only to CMRS carriers who are interconnected with the public switched telephone network. The new rule expansively applies to a new species – facilities-based providers of “commercial mobile data services”. (The Commission appears resistant to embracing the obvious acronym, i.e., CMDS, for that universe of services – but we’re not.)

The operative characteristics of this hitherto undiscovered species are notable both for what they include and what they don’t. The inclusions and exclusions reflect a careful balancing of the policy issues that raged beneath the surface of this decision.

Tags: CMDS, CMRS, Cellular, Commercial mobile data services, Data roaming, Internet, Roaming, Roaming charges, Wireless Telephony

Spectrum Inventory Tools: Touts And Doubts

Posted on April 9, 2011 by Harry Cole

Mixed messages on means for determining spectrum availability

When the issue of spectrum re-purposing pops up, the related issue of spectrum inventory tends to pop up as well. Some members of Congress have been calling for the Commission to conduct such an inventory since 2009. The Commission has not initiated any formal proceedings along those lines, although it has repeatedly insisted that it has a good handle on the whole spectrum thing and that its assessment of the need for re-purposing is valid.

In February, 11 Members of Congress sent Chairman Genachowski a letter observing (again) that it would be a good idea to conduct an inventory so that we can all have “a complete picture of who is licensed to use what airwaves and how effectively they are being used”.

In a response dated March 18, Genachowski advised that the Commission has “inventoried the spectrum over which it has jurisdiction”, thereby producing “one of the most substantial and comprehensive reviews of spectrum in [the Commission’s] history”. He then waxed eloquent about two “tools” – “LicenseView” and “Spectrum Dashboard” – that “reflect our understanding of where the most significant spectrum opportunities lie”. I’ll let the Chairman describe those “tools”:

Tags: Broadcast, Cellular, Incentive auction, Internet, LicenseView, NBP, National Broadband Plan, Re-purposing of spectrum, Repurposing of TV spectrum, Spectrum Dashboard, Spectrum inventory, Spectrum inventory tools, Spectrum re-purposing, TV channel-sharing, VHF repacking, Wireless Telephony

Copyright, Content Distribution And Technological Innovation: The Need To Re-Think The Compulsory Licensing System

Posted on April 8, 2011 by Kevin Goldberg

Signs point to tensions between the laws of the past and the technology of the present and future

Not to go all chicken little on you, but the world may be coming to an end – the world of copyright and compulsory licensing as we have known it for the past several decades, that is. I’ve been following the evolution of content delivery across all platforms (including the legal systems which underlie content delivery), and have in recent months noted a recurring theme: the legal rules governing delivery of content – and audiovisual programming, especially – are falling farther and farther behind the state of the technological art. Traffic rules developed during the horse-and-buggy days don’t really help anybody in an age of superhighways and high-performance cars. So maybe it’s time for legislators and regulators to roll up their sleeves and get to work developing a copyright licensing system for the 21st Century.

Examples? How about online streaming providers ivi, Inc. and Filmon.com, who have been trying to cram the square peg notion of an “on-line cable system” into the round hole system of traditional compulsory licensing. They’re clearly outliers making long shot attempts to revolutionize television viewing. From a legal standpoint they’re still on the outside looking in, as both have been told by federal courts that they are not acting within the boundaries of the Copyright Act. Yet, as we reported on these cases, we prophesied that ivi.Inc and Filmon.com may simply be ahead of their time.

Our predictions weren’t far off the mark.

Tags: Broadcast, Cable, Compulsory licenses, Compulsory licensing, FilmOn.com, Fox, Intellectual Property, Internet, News Corporation, Program distribution, Scripps Network Services Interactive, Section 111, Section 119, Section 122, Time Warner Cable, iPad, ivi TV

Verizon v. FCC: On To Plan C?

Posted on April 5, 2011 by Harry Cole

Initial net neutrality appeal dismissed as premature

So much for creativity in appellate litigation. The U.S. Court of Appeals has determined that Verizon jumped the gun when they filed notices of appeal of the FCC’s net neutrality decision last January. As a result, Verizon’s appeal has been dismissed. (A similar appeal by MetroPCS was also dismissed in the same order.)

As faithful readers will recall, Verizon made a two-pronged effort to insure that the D.C. Circuit would be the court to review the net neutrality approach adopted by the Commission in late 2010. (Verizon’s motive in that effort isn’t hard to guess: the D.C. Circuit had slammed a similar regulatory approach in the 2010 Comcast decision.) But one prong of that effort – a request that Verizon’s appeal be assigned to the same panel of judges who decided Comcast – was rejected in less than two weeks. And now the second shoe has fallen.

The Court’s latest order is terse. Offering no substantive analysis, it merely concludes that

[t]he challenged order [i.e., the net neutrality decision] is a rulemaking document subject to publication in the Federal Register, and is not a licensing decision “with respect to specific parties.”

The theory of Verizon’s approach was that it was a “licensing decision” affecting “specific parties”. So much for that theory. As a result of the Court’s order, judicial review cannot be sought until the agency’s decision is published in the Federal Register, something that hasn’t happened yet.

The good news for Verizon is that dismissal of its initial appeal does not foreclose it from seeking judicial review again once net neutrality finally makes it to the Register. (No word yet as to when that might be. Trade press reports a couple of months ago indicated that Federal Register publication was then imminent. Those reports were apparently wrong.)

The bad news for Verizon is that, when the opportunity to file does arise, there will be no way to guarantee that the case lands in the D.C. Circuit. If other parties file their petitions for review in other Circuits, a “judicial lottery” system kicks in. While it would seem to make sense for the D.C. Circuit to hear the next round of net neutrality appeals – that Court, after all, is very familiar with administrative law issues generally and issues arising from the Communications Act in particular – at this point it’s anybody’s guess where the case will ultimately land.

Update: Comment Deadlines Set In VoIP/TRS Contributions Rulemaking

Posted on April 4, 2011 by FHH Law

Last week we posted about an NPRM proposing to expand the requirement that VoIP providers contribute to the Telecommunications Relay Service (TRS) Fund. The requirement, already applicable to connected VoIP operators, would be broadened to include non-VoIP as well. See the original post for details.

The NPRM has now been published in the Federal Register, which sets the deadlines for comments on the proposals. Comments are due on May 4, 2011, and reply comments on May 19, 2011. And if you feel like commenting on the “information collection” aspects of the proposal (as you are entitled to do, thanks to the Paperwork Reduction Act), you’ve got until June 3, 2011, to do so.

Tags: ACS, Advanced communications services, CVAA, Cellular, Deadlines, Internet, NPRM, Notice of Proposed Rulemaking, Section 103(b), Section 104, Section 255, Skype, TRS, TRS Fund, Telecommunications Relay Service, Twenty-first Century Communications and Video Accessibility Act of 2010, VoIP, Voice over Internet Protocol, Wireless Telephony

Trolls On A Roll

Posted on April 3, 2011 by Kevin Goldberg

With decision from D.C. judge, copyright trolls may have found a new go-to jurisdiction

Score one for the trolls . . . the copyright trolls, that is. A recent preliminary decision by U.S. District Judge Beryl Howell may lead those trolls to funnel much if not most of their litigation through the U.S. District Court in Washington, D.C. Judge Howell’s decision will almost certainly make it easier for the trolls to pressure their defendants – including even purely blameless defendants – into pre-trial settlements favorable to the trolls.

Disclosure: I know Judge Howell. It’s not like we’re friends or anything, but I did meet her when she was working on FOIA legislation with the Senate Judiciary Committee. She’s extremely smart, well-intentioned and easy to work with.

But as the newest addition to the U.S. District Court in DC, she has certainly not endeared herself to those interested in First Amendment rights – which clearly includes me – with her recent ruling in Call of the Wild Movie, LLC, v. Does 1-1,062.

Tags: Ars Technica, Call of the Wild Movie v. Does, Copyright, Copyright infringement, Copyright troll, EFF, Electronic Frontier Foundation, First Amendment, Intellectual Property, Internet, John Doe lawsuits, Judge Beryl Howell, U.S. District Court for the District of Columbia, Wired

For VoIP Providers: Warning - Steep (Regulatory) Incline Ahead

Posted on March 31, 2011 by Christine E. Goepp

More burdens just up the road, thanks to two Congressionally-ordered NPRMs

The FCC’s release of two Notices of Proposed Rulemaking (NPRMs) on March 3 will give VoIP providers a familiar sinking feeling – that is, the feeling of sinking ever deeper into the quicksand of FCC regulation. At Congress’s direction, the FCC is looking both to expand TRS contribution obligations and to impose additional accessibility rules on all VoIP providers. As we describe below, the new accessibility standard for VoIP (as well as email and video conferencing) will be even higher than that already imposed on most telecommunications services.

The NPRMs (along with the video description NPRM about which we’ve already reported) are some of the first regulatory offspring of the 21st Century Communications and Video Accessibility Act of 2010 (CVAA). Because the CVAA is clear in its mandate, the Commission has little choice with respect to the major points on the table – but it does have discretion relative to a number of the ancillary and administrative aspects. (And, given the scope of CVAA’s ambition to modernize the nation’s accessibility laws, we expect more NPRMs to follow in the months to come.)

Tags: ACS, Advanced communications services, CVAA, Cellular, Internet, NPRM, Notice of Proposed Rulemaking, Section 103(b), Section 104, Section 255, Skype, TRS, TRS Fund, Telecommunications Relay Service, Twenty-first Century Communications and Video Accessibility Act of 2010, VoIP, Voice over Internet Protocol, Wireless Telephony

Update: FCC Seeks Comment On Channel 51 Licensing Limits

Posted on March 28, 2011 by FHH Law

A week ago, we posted about a “range war” in the spectrum around TV channel 51. The wireless providers who bought spectrum just above channel 51 at auction must configure their operations to protect channel 51 TV reception. They have since asked the FCC to limit channel 51 licensing so as to minimize their own burden. See the original post for details.

The FCC has now requested comment on the wireless companies’ request. Comments are due on April 27, 2011, and reply comments on May 12, 2011. Note also that the FCC has made this a “permit-but-disclose” proceeding, which means that face-to-face meetings between interested parties and the Commission’s staff are OK, as long as the niceties imposed by the FCC’s ex parte rules are honored.

Tags: Broadcast, Cellular, Channel 51, Deadlines, Internet, Range war, Wireless Telephony

Come 'n' Get it: RUS Ready To Open Coffers Again

Posted on March 23, 2011 by Donald Evans

$700 million in low-interest loans available for would-be rural broadband providers

In 2009-2010, the Department of Agriculture’s Rural Utility Service (RUS) disbursed several billion dollars in loans and grants for broadband build outs as part of the controversial spending initiative flowing from the American Recovery and Reinvestment Act. Now, hot on the heels of that spree, RUS has opened the gates for new applications for up to $700 million dollars in low-interest loans for broadband. The new funds have been made available by the Food, Conservation, and Energy Act of 2008 (a/k/a the 2008 Farm Act). Interested applicants may file as soon as they’re ready.

The purpose of the funding is similar to that of the 2009-2010 stimulus program: to subsidize the construction of broadband facilities in parts of rural America that are currently unserved or underserved in that regard.

Although RUS is accepting applications now, the actual appropriation for the program remains uncertain due to the inability of Congress to pass a final budget for 2011. RUS finds itself in a bit of a bind since the funds, if they do become available, must be committed by the end of this fiscal year (i.e., by September 30, 2011). That leaves relatively little time for RUS to solicit, receive and process applications. While there is no guarantee that the funds will actually be in the cookie jar after applications are submitted, RUS obviously feels confident enough about the survival of the program to solicit applications. With the most recent (and likely last) Federal budget “continuing resolution” expiring on April 8, RUS should know by then whether it in fact has any money to lend.

Tags: 2008 Farm Act, American Recovery and Reinvestment Act of 2009, Broadband, Broadband stimulus, Deadlines, Food, Conservation, and Energy Act of 2008, Internet, RUS, Rural Utilities Service, Rural broadband

Update: EBS Licensees Get Six-Month Extension Of Substantial Service Deadline

Posted on March 22, 2011 by FHH Law

Licensees in the Educational Broadband Service can breathe easier now. Their deadline for demonstrating substantial service has been extended six months, to November 1, 2011.

As we reported in February, the Catholic Television Network (CTN) and the National EBS Association (NEBSA) asked the Commission for an extension of the original May 1, 2011 substantial service deadline. Their request was made on behalf of all EBS licensees – BUT it did not include any Broadband Radio Service (BRS) licensees. Acting with impressive speed, the Commission sought public comment on the request and has now issued a Memorandum Opinion and Order granting the CTN/NEBSA petition. (The fact that a total of only 18 responsive comments were filed probably helped move things along, particularly since none of the commenters opposed the extension.)

Bottom line: EBS licensees now face a November 1, 2011 deadline for demonstrating substantial service. (The bad news for BRS licensees is that they remain subject to the original May 1 date.)

Tags: BRS, Broadband Radio Service, Catholic Television Network, Deadlines, EBS, Educational Broadband Service, Extension, Internet, NEBSA, Substantial service

A Look At The FCC's Proposed Overhaul Of USF And Intercarrier Compensation Regimes

Posted on March 21, 2011 by Donald Evans

Weighing in at 228 pages (not including an extra 61 pages of appendices and separate Commissioners’ statements), the NPRM illustrates the complexity of the problems facing the Commission.

A journey of a thousand miles begins with a single step. As reported here, last month the FCC began its own long, long march to the Promised Land of USF/ICC reform by issuing a massive 289-page tome that promises to revisit, reassess, restructure and revitalize virtually every aspect of universal service support and intercarrier compensation as we know it.

The task is a daunting one. Perhaps for that reason, the Commission has been putting it off for more than a decade, tweaking this or that and putting out small brushfires as they’ve arisen, but never tackling the fundamental reform that virtually everyone agrees is desperately needed. Complicating the task is the fact that USF reform and ICC reform are inextricably related – you can’t reform one without reforming the other. So the FCC has correctly chosen to attack the two behemoths – each of which has proven remarkably impervious to reform – in a single charge. This multiplies the complexity and size of the proceeding exponentially, but is the intellectually honest way to approach the matter.

In truth, just reading the Notice of Proposed Rulemaking (whose formal, if somewhat redundant, title is “Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking”) (NPRM) was a major undertaking. The document inquires into literally scores of existing policy issues, from questions as fundamental as the FCC’s jurisdiction to regulate VoIP to details as granular as benchmark rate levels. So far-reaching is the inquiry that we estimate that more than a thousand distinct questions or issues were posed for industry input. Recognizing the logistical problem of arranging the myriad number of meetings necessary to garner the expected input from all parties, the Commission has taken the unusual step of establishing formal procedures for scheduling meetings with the staff.

Tags: Cellular, Connect America Fund, ICC, Intercarrier compensation, Internet, NBP, National Broadband Plan, Notice of Proposed Rulemaking, USF, Universal Service Fund, Wireless Telephony, Wireline Telephony

Range War 2011: Broadcasters vs. Wireless Providers

Posted on March 20, 2011 by Mitchell Lazarus

Wireless companies in spectrum adjacent to TV channel 51 want their neighbors to vamoose.

In the Old West, even the vast wide open spaces were not vast enough and wide enough for everybody. Farmers and cattle ranchers fought over scarce resources, like water and grazing rights. These conflicts were known as range wars.

The tradition lives on, but the turf in dispute today is spectrum, particularly TV channel 51. The wireless companies want to ease out the TV broadcasters, who may want to stay put. Better hunker down; the legal papers are going to fly.

The dispute is a by-product of the digital TV transition a few years ago. Digital technology allowed the geographic repacking of TV stations into fewer channels than before. That freed up 108 MHz of spectrum in the 700 MHz band, part of which the FCC auctioned off to wireless broadband providers for almost $20 billion. Even here in Washington, that counts as real money. The government got the cash; the broadcasters got to quadruple their video capacity; and the wireless companies got more bandwidth, over which customers could download more videos of cats riding on vacuum cleaners.

Now the happy honeymoon is over. Reality has settled in. The domestic-bickering phase has begun.

Tags: Broadcast, Cellular, Channel 51, Internet, Range war, Wireless Telephony

Three Incentive Auction Bills Introduced In Congress

Posted on March 10, 2011 by Lee Petro

Proposals would authorize FCC to share auction proceeds with broadcasters as part of spectrum re-purposing process

It’s no secret that: (a) the FCC would like to re-purpose already-occupied broadcast TV spectrum for broadband use; (b) many (if not most) of the folks who currently occupy that spectrum are not particularly keen on the idea; and (c) the FCC figures that any broadcaster resistance to spectrum re-purposing might be softened by the siren song of a big payday, with the cash coming out of the proceeds of an auction of the re-purposed spectrum.

The FCC’s problem (also not a secret) is that the Commission doesn’t have the statutory authority to promise any auction proceeds to licensees who relinquish their spectrum.

It’s obviously time (with apologies to Stephen Sondheim) to . . . send in the legislators!

Already, three bills have been introduced this year that would allow the Commission to spread the spectrum wealth around; reports of still more bills in the works continue to surface. (This is in addition to several bills introduced last year.)

To Serve Broadcasters*

Posted on March 1, 2011 by Harry Cole

Another peek at what spectrum re-purposing might look like

In what appears to be an ongoing effort by the Media Bureau to soften the ground on the spectrum re-purposing front in advance of an eventual all-out assault, Bureau Chief William Lake recently spoke to the National Alliance of State Broadcasters Associations, preaching the gospel of incentive auctions. His message: We come in peace, with broadcasters’ interests at heart. Submit to our plans and everything will work out for the best. Honest.

Maybe theirs is the path to the ultimate win-win-win situation. As we have previously urged, broadcasters should keep an open mind and give careful consideration to any final plan the Commission eventually comes up with.

But broadcasters might also be forgiven if, at least for now, they opt for skepticism over unquestioning acceptance.

In his speech (the text of which may be found here), Lake lays out five basic points. Let’s take a look at them.

Tags: Broadcast, Cellular, Incentive auction, Internet, NBP, National Broadband Plan, Re-purposing of spectrum, Repurposing of TV spectrum, Spectrum re-purposing, TV channel-sharing, VHF repacking, Wireless Telephony, webinar

FCC Provides Guidance on BRS/EBS Substantial Service Filings

Posted on March 1, 2011 by Donald Evans

The FCC’s Wireless Bureau has issued a long-promised Public Notice clarifying when and how Broadband Radio Service (BRS) and Educational Broadband Service (EBS) licensees must demonstrate that they have been providing “substantial service” during their most recent license term.

Of key interest here are the all important deadlines by which these demonstrations must be made. The Bureau declared May 16, 2011 to be the deadline by which non-renewal-related showings by EBS licensees and BRS BTA licensees must be filed. This was a mild surprise to some observers since the pertinent rule (Section 27.14(o)) requires that BRS/EBS licensees “make a showing” of substantial service no later than May 1, 2011. One might well have interpreted that language as requiring the showing to actually be submitted by that date, but the Bureau has now given us a more generous interpretation of the rule with which few members of the industry will want to quibble. The Bureau has also confirmed that BRS incumbents whose licenses expire on May 1, 2011 must file their showings no later than May 2, 2011 as part of their renewal applications.

Tags: BRS, Broadband Radio Service, Deadlines, EBS, Educational Broadband Service, Internet, Substantial service showing, Substantial service standards

Update: Comment Deadlines Set In 700 MHz Public Safety Broadband Network Rulemaking

Posted on February 24, 2011 by FHH Law

Earlier this month we reported on the FCC’s adoption of a Third Report and Order and Fourth Further Notice of Proposed Rulemaking (“R&O/NPRM”) in its efforts to establish an interoperable broadband network for public safety agencies in the 700 MHz band. In the notice of proposed rulemaking portion of that item the Commission posed a raft of technical questions relative to the design and implementation of that network. With the publication of the R&O/NPRM in the Federal Register, the deadlines for comments and reply comments in response to those questions have been set. Comments are due no later than April 11, 2011; reply comments are due no later than May 10, 2011.

Tags: 700 MHz, Cellular, D Block, Deadlines, ERIC, Emergency Response and Interoperability Center, Internet, LTE, Long term evolution, Public Safety and Homeland Security Bureau, Public safety broadband, Wireless Telephony

The End Is Near For EBS Licensees - But Maybe Not As Near As You Think

Posted on February 16, 2011 by Donald Evans

FCC invites comments on request for six-month extension of May 1 “Substantial Service” deadline

May 1, 2011: the End of Days . . . well, at least for licensees in the Educational Broadband (EBS) and Broadband Radio (BRS) services. It’s not the day of apocalypse foretold in some Mayan calendar. Rather, back in 2006, the Commission established May 1, 2011 as the date by which all EBS and BRS licensees must file showings demonstrating that they have been putting their spectrum to substantial use. The five-year lead time was intended to permit the embedded EBS/BRS facilities to be “transitioned” from the old band plan to the re-shuffled band plan which was adopted for those services in 2004. But now, with the long-dreaded deadline of May 1, 2011 looming nearer and nearer, the Catholic Television Network and NEBSA (the association of EBS licensees) have jointly filed a request seeking a six-month extension of time on the EBS (but not the BRS) side.

Though five years once seemed like a long time, the transition process has turned out to be a massive undertaking involving the construction of thousands of stations nationwide and the integration of those stations into either commercial broadband operations or educational programs. (Most stations – many of which were still analog – had been taken dark pending the nationwide transition to the new band plan, so the new stations had to be built from scratch.) Clearwire, the dominant commercial operator in the EBS/BRS space, leases hundreds, if not thousands, of EBS channels. There had been some anxiety in some quarters – always downplayed by Clearwire itself – that Clearwire may have bitten off more than it could chew in committing to build out all of these stations across the country. Significantly, Clearwire did not itself join in the petition to the FCC, but quickly filed supporting comments even before the FCC released its Public Notice on the matter. A consensus of supporting comments from other affected EBS licensees or lessees is to be expected.

Tags: BRS, Catholic Television Network, Deadlines, EBS, Educational Broadband Service, Internet, NEBSA, Radio Broadband Service, Substantial service

Coming Attractions: FCC Webinars Touting Spectrum Re-Purposing

Posted on February 13, 2011 by Harry Cole

Announcement promotes series of webinars targeting TV broadcasters

As far as the Commission’s concerned, it’s apparently all systems go and full speed ahead with the effort to encourage TV broadcasters to relinquish their spectrum so that it can be used to further the National Broadband Plan. The latest evidence of this is the following announcement sent by Commission reps to state broadcast associations:

FCC Webinar for Television Broadcasters

Please join FCC Media Bureau Chief Bill Lake and Rebecca Hanson, Senior Advisor, Broadcast Spectrum, in a live webinar that describes the financial opportunities offered by voluntary incentive auctions, as proposed in the FCC’s National Broadband Plan. Incentive auctions for TV spectrum seek to offer broadcasters new business model options involving their voluntary contribution of some or all of their licensed spectrum, including options that allow broadcasters to participate and continue to broadcast. This webinar will give an overview of those opportunities and will provide an opportunity for the FCC representatives to respond to questions, including questions about the need to repack the remaining television channels following the auction. Specific topics will include:

-- How would an incentive auction work?

-- Broadcaster Opportunities, channel-sharing, and

-- VHF Repacking Implications

Station owners, managers, key personnel, and station attorneys are invited to participate - so please forward this notice to others who have interest. Stay tuned for details about registration for this event.

Thank you.

A total of 15 separate presentations have apparently been scheduled from March 10 – April 6. We don’t know if this is the final number. Nor have we yet gotten the scoop on how to access any of the webinars (URL’s, dial-in phone numbers, access codes, etc.), but when we do, we’ll be sure to pass along what we learn, so check back here for updates.

Tags: Broadcast, Cellular, Incentive auction, Internet, NBP, National Broadband Plan, Re-purposing of spectrum, Repurposing of TV spectrum, Spectrum re-purposing, TV channel-sharing, VHF repacking, Wireless Telephony, webinar

Striving For Perfection

Posted on February 11, 2011 by Harry Cole

A week or so ago the FCC released a Report and Order and Further Notice of Proposed Rulemaking (R&O) addressing changes in its ex parte rules – an area so arcane that even we here at CommLawBlog have refrained from blogging about it so far. The R&O is a healthy 37-page item, complete with a detailed table of contents that looked like this when it was originally issued:

But now the Commission’s General Counsel has issued a one-page Erratum, the sole stated purpose of which is to “correct[ ] the paragraph numbers listed in the Table of Contents of the R&O.” The corrected version is reproduced below:

We’re glad they took the time to get that all straightened out . . .

Tags: Broadcast, Cable, Cellular, Erratum, Ex parte, Internet, Satellite Radio, Table of Contents, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireline Telephony

Net Neutrality Update: Coming soon - OMB Review!

Posted on February 9, 2011 by Harry Cole

But effectiveness of the new rules is still months away, at least

The Commission’s Open Internet (a/k/a Net Neutrality) initiative has taken a tangible step forward with the announcement that the FCC is getting ready to ship two “information collection” aspects of the rules over to the Office of Management and Budget (OMB) for its review. But don’t hold your breath – it’ll take at least a couple of months to get there.

OMB review is mandated by our old friend, the Paperwork Reduction Act, which requires agencies to quantify and justify “information collection” burdens before imposing them on regulated industries or the public. The idea is that OMB may perceive regulatory excess that the FCC has somehow overlooked and slam the brakes on the process.

The two Net Neutrality information collections in question? First, there are the formal complaint procedures to be used to resolve “open Internet disputes” when other, less formal, means don’t do the trick. And second, we have the requirement that broadband providers disclose their network management practices. Unfortunately, the FCC’s Federal Register notices concerning its proposals afford no particular insight into just what the complaint and disclosure requirements will involve. That may complicate the task of preparing comments on the proposals.

But wait – doesn’t the Net Neutrality order itself fill in some of the gaps in the notices? Some, maybe . . . but not all.

Tags: Cellular, Internet, Net neutrality, Network Neutrality, OMB, Office of Management and Budget, Paperwork Reduction Act, Wireless Telephony, Wireline Telephony, information collection

Time To Doublecheck Your BAS Data In ULS?

Posted on February 7, 2011 by Harry Cole

With FS wireless backhaul stations a strong likelihood, a veteran consulting engineer recommends review of BAS records in ULS – and we second that emotion

Last August we reported on a Commission proposal to make more spectrum available for wireless backhaul linking mobile signals back to the core network. As of yet we haven’t heard anything more on this from the Commission, but it’s a reasonable assumption – particularly given the FCC’s fixation on all things wireless – that all or most of its proposals will be adopted eventually, probably sooner rather than later.

One central element of the proposal would open up the 6875-7125 MHz and 12.7-13.2 GHz bands for backhaul on Fixed Service (FS) stations. But heads up – those bands are currently used for Broadcast Auxiliary Services (BAS), including studio-transmitter links. If new FS stations are allowed into those bands, they would presumably be required first to prepare and submit coordination studies to demonstrate appropriate protection to incumbent licensees, including BAS stations. No problem so far.

But as our friend Dane Ericksen, a well-known and highly-respected consulting engineer, has pointed out, the FS coordination efforts will be based on information currently available in the FCC’s ULS database. And, according to Dane, that information is in many instances less than complete and accurate. He cites figures that are pretty amazing.

Tags: 12.7-13.2 GHz, 6875-7125 MHz, BAS, Backhaul, Broadcast, Broadcast Auxiliary Services, Cellular, Dane Ericksen, Internet, ULS, Universal Licensing System, Wireless Telephony, Wireless backhaul

Calling All Cars? Be Sure To Use LTE On 700 MHz

Posted on February 4, 2011 by Robert M. Gurss

FCC crowns LTE as technology of choice for public safety broadband

With the release of a combination Third Report and Order and Fourth Further Notice of Proposed Rulemaking (“R&O/NPRM”) the FCC has taken a big step toward ensuring that public safety agencies relying on future wireless broadband networks will be able to communicate across jurisdictional boundaries. Current public safety radio networks often suffer from a lack of “interoperability” which can endanger the lives of first responders and the public. The new broadband networks will be deployed in the 700 MHz band and are expected to provide police, fire, emergency medical, and other personnel with secure and reliable access to a wide range of data and video capabilities.

The Commission took the first step by endorsing a specific broadband technology, Long Term Evolution (LTE), for public safety broadband networks. While the FCC generally avoids picking technologies, it has done so when necessary to promote interoperability for public safety. Absent a standard, there is a risk that one jurisdiction will deploy technology A, and a nearby jurisdiction will deploy technology B, preventing communications between public safety personnel from those jurisdictions when responding to emergencies.

In this case, picking a standard was an easy call, as the public safety community and the vast majority of vendors and wireless carriers are solidly in support of LTE. The selection of LTE will also allow public safety to piggyback on the widespread commercial deployment of LTE in adjacent frequency bands. That should reduce equipment costs and open up the potential for network sharing arrangements.

Tags: 700 MHz, Cellular, D Block, ERIC, Emergency Response and Interoperability Center, Internet, LTE, Long term evolution, Public Safety and Homeland Security Bureau, Public safety broadband, Wireless Telephony

Verizon v. FCC: On To Plan B?

Posted on February 3, 2011 by Harry Cole

Comcast panel denies Verizon motion to assign net neutrality appeal to it

Well, that didn’t take long. On February 2, less than two weeks after Verizon filed its unusual motion asking that its appeal of the net neutrality decision be assigned to the same panel that trashed the Commission in the Comcast opinion last April, that panel has denied the motion. Don’t count on sifting through a detailed opinion to obtain subtle nuances of potential significance. The panel’s order consists of a single sentence: “Upon consideration of the appellant’s motion to assign the case to the panel that decided Comcast Corp. v. FCC, it is ordered that the motion be denied.”

Ouch.

Verizon’s appellate strategy has thus suffered a serious blow, but an important element of that strategy is still alive, at least for the time being. Its “notice of appeal” is still pending, although the FCC has moved to dismiss that as well. If the Court denies the FCC’s motion to dismiss and accepts the appeal, then Verizon will at least have secured review by the D.C. Circuit (as opposed to any other federal circuit court of appeals). Chances of that happening? You never know. (Note that the legal arguments underlying Verizon’s “notice of appeal” are separate and distinct from those advanced in its motion for the Comcast panel. In other words, the denial of the latter is not necessarily the kiss of death for the former.)

And even if the Court grants the FCC’s motion and tosses Verizon’s appeal on the theory that Verizon jumped the gun, Verizon will still presumably be able to file a “petition for review” along with any other party unhappy with the net neutrality order once that order is published in the Federal Register. But there is no guarantee that that review proceeding would necessarily end up in the D.C. Circuit. Check back here for updates as developments warrant.

112th Congress: New Line-Up, New Players - New Priorities?

Posted on February 2, 2011 by FHH Law

(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on the impact recent committee appointments are likely to have on communications issues in the 112th Congress. Catherine is a principal in Meadowbrook Strategic Government Relations, LLC and a specialist in Congressional relations.)

January is over, and the House and Senate Committees that oversee telecom issues have officially organized – issuing full lists of members, deciding on the rules by which the committees will work, and dividing up the budgets between Democrats and Republicans (thus setting the tone for how well the parties will work together in the 112th Congress).

So what will the legislative priorities of these committees be? The two themes of love and money – constituent votes and budget issues – that we identified in an earlier post still dominate. However, now that we know who all of the players are, including the subcommittee chairs, we can take these policymakers’ legislative pasts into account, and perhaps identify which specific bills we should see introduced in the coming months.

Comment Deadlines Set In TV Spectrum Re-Purposing Proceeding

Posted on February 1, 2011 by FHH Law

Back in early December we reported on the release of the Notice of Proposed Rulemaking (NPRM) which kicked off the long-anticipated push to free up prime blocks of TV spectrum for broadband use. The NPRM has now been published in the Federal Register, which sets the comment and reply comment deadlines. Comments are currently due by March 18, 2011, and reply comments are due by April 18, 2011. Needless to say, this is a proceeding of major league significance to a wide array of current and potential spectrum users. Attention most certainly should be paid.

Tags: Auction Revenue Sharing Plan, Broadcast, Cellular, DTV, DTV Transition, Deadlines, Internet, Julius Genachowski, Michael Copps, NBP, NPRM, National Broadband Plan, Notice of Proposed Rulemaking, Section 2.106, Spectrum re-purposing, Spectrum redistribution, TV channel-sharing, TV spectrum, Wireless Telephony

Effectively Ineffective Effective Date?

Posted on January 27, 2011 by Donald Evans

FCC either grabs or misses relinquished USF monies

As we reported here a few weeks ago, on December 30 the FCC adopted an Order that permits it to re-purpose the monies that are relinquished by carriers who are no longer ETCs in particular states. From the text of the Order, we thought the Commission wanted to make the Order “effective” as of December 30. Now we’re not so sure.

The back-story here starts in 2008. Under the Interim Cap Order adopted in May of that year, the FCC temporarily “froze” the amount of funds available for distribution to CETCs (including wireless carriers) at then-existing levels. The FCC emphasized at that time that the pool of funds would not change depending on the number of ETCs who were dipping into it – the FCC seems only to have been thinking about increases in the numbers of participants since it designated a lot of new ETCs at the same time as the Interim Cap Order, thus immediately reducing the pro rata funding available to participating ETCs.

In 2008, however, Sprint and Verizon both committed to relinquish their USF funds in certain states as a condition of getting mergers approved. One would have thought that these funds would then have been available for re-distribution to the remaining ETCs since the amount of funding was to remain fixed. This would have relieved at least a portion of the hit that CETCs took when the combination of the cap and new ETC designations reduced their support well below authorized levels.

Tags: Cellular, Corr Wireless, Interim Cap Order, Internet, NBP, National Broadband Plan, Sprint-Nextel, USF, Universal Service Administrative Company, Universal Service Fund, Verizon Wireless, Wireless Telephony, Wireline Telephony

Webcaster Wake-Up Call! A To-Do List For NONCOMMERCIAL Webcasters

Posted on January 24, 2011 by Kevin Goldberg

New year brings filing deadlines for noncommercial webcasters

The beginning of another year brings renewed obligations for all broadcasters who are operating a non-interactive webcast (as opposed to an on-line service that provides interactive downloads or podcasts). That universe is populated by three separate and distinct types of webcasters, each of which has slightly different obligations from the others. Those three types are: (1) commercial webcasters; (2) noncommercial webcasters; and (3) noncommercial educational webcasters.

Important definitional note: For purposes of webcasting royalties, the distinction between commercial and noncommercial is not based on the nature of the underlying broadcast license. Rather, it’s based on the reporting entity’s status under Section 501 of the Internal Revenue Code. If a webcaster is exempt from taxation under Section 501, it is deemed to be NONcommercial when it comes to webcaster royalty matters. And if a noncommercial webcaster’s operation is substantially staffed by students, it is a noncommercial educational webcaster. This post is addressed to noncommercial licensees. (Simultaneously with this item we are also posting similar items for the other two types of webcasters – so if you happen to be commercial webcaster or a noncommercial educational webcaster, look elsewhere here on CommLawBlog.com for a post addressed to your own particular situation.)

If you are engaged in the NONCOMMERCIAL WEBCASTING of one or more streams, your first filing of the new year – primarily consisting of an annual minimum fee statement of account with payment of $500 per channel – is due on January 31, 2011. But your obligations continue throughout the year with statements of account and playlist reports of use required on a monthly basis.

Noncommercial webcasters (unlike their commercial and educational counterparts) have several decisions to make. The eligibility requirements described below should be reviewed carefully.

Webcaster Wake-Up Call! A To-Do List For NONCOMMERCIAL EDUCATIONAL Webcasters

Posted on January 24, 2011 by Kevin Goldberg

New year brings filing deadlines for noncommercial educational webcasters

The beginning of another year brings renewed obligations for all broadcasters who are operating a non-interactive webcast (as opposed to an on-line service that provides interactive downloads or podcasts). That universe is populated by three separate and distinct types of webcasters, each of which has slightly different obligations from the others. Those three types are: (1) commercial webcasters; (2) noncommercial webcasters; and (3) noncommercial educational webcasters.

Important definitional note: For purposes of webcasting royalties, the distinction between commercial and noncommercial is not based on the nature of the underlying broadcast license. Rather, it’s based on the reporting entity’s status under Section 501 of the Internal Revenue Code. If a webcaster is exempt from taxation under Section 501, it is deemed to be NONcommercial when it comes to webcaster royalty matters. And if a noncommercial webcaster’s operation is substantially staffed by students, it is a noncommercial educational webcaster. This post is addressed to noncommercial educational licensees. (Simultaneously with this item we are also posting similar items for the other two types of webcasters – so if you happen to be commercial webcaster or a noncommercial (but not an “educational”) webcaster, look elsewhere here on CommLawBlog.com for a post addressed to your own particular situation.)

If you are engaged in the NONCOMMERCIAL EDUCATIONAL WEBCASTING of one or more streams, your first filing of the new year – primarily consisting of an annual minimum fee statement of account with payment of $500 per channel – is due on January 31, 2011. But your obligations continue throughout the year with statements of account and playlist reports of use required on a monthly basis.

Here’s a list of the routine filing obligations facing a noncommercial educational webcaster:

Webcaster Wake-Up Call! A To-Do List For COMMERCIAL Webcasters

Posted on January 24, 2011 by Kevin Goldberg

New year brings filing deadlines for commercial webcasters

The beginning of another year brings renewed obligations for all broadcasters who are operating a non-interactive webcast (as opposed to an on-line service that provides interactive downloads or podcasts). That universe is populated by three separate and distinct types of webcasters, each of which has slightly different obligations from the others. Those three types are: (1) commercial webcasters; (2) noncommercial webcasters; and (3) noncommercial educational webcasters.

Important definitional note: For purposes of webcasting royalties, the distinction between commercial and noncommercial is not based on the nature of the underlying broadcast license. Rather, it’s based on the reporting entity’s status under Section 501 of the Internal Revenue Code. If a webcaster is exempt from taxation under Section 501, it is deemed to be NONcommercial when it comes to webcaster royalty matters. And if a noncommercial webcaster’s operation is substantially staffed by students, it is a noncommercial educational webcaster. This post is addressed to commercial licensees. (Simultaneously with this item we are also posting similar items for the other two types of webcasters – so if you happen to be noncommercial webcaster or a noncommercial educational webcaster, look elsewhere here on CommLawBlog.com for a post addressed to your own particular situation.)

If you are engaged in the COMMERCIAL WEBCASTING of one or more streams, your first filing of the new year – primarily consisting of an annual minimum fee statement of account with payment of $500 per channel – is due on January 31, 2011. But your obligations continue throughout the year with statements of account and playlist reports of use required on a monthly basis.

Any commercial webcasting service operating as a broadcaster (that is, operating an FCC-licensed AM or FM station simulcasting at least one channel on the Internet) will fall into one of the two categories outlined below.

Upcoming Appearance: Webcast Copyright Maven Kevin Goldberg To Participate In SoundExchange Webinar

Posted on January 21, 2011 by FHH Law

Hey all you Webcasters – Listen up! Kevin Goldberg, FHH’s resident expert on all things webcasting, will be participating as a “special guest” in a webinar conducted by (drum roll, please) SoundExchange. SoundExchange, of course, is the non-profit performance rights organization that collects statutory royalties from webcasters (as well as satellite radio operators like SIRIUS XM, cable TV music channels and similar platforms for streaming sound recordings). It offers free webinars to provide the webcasting community insight into the requirements of the Copyright Act. Kevin will be discussing some “frequently encountered problems or questions" that he receives from webcasters across the country. The webinar is scheduled for Thursday, January 27 at 2:00 p.m. (ET).

If you’re a webcaster and want to hear the real deal from the people that matter, you'll want to be on the line for this event. (Did we mention that it’s FREE?) You can register here. (When you sign up, you can also submit questions that you’d like Kevin to answer during the webinar.)

Tags: Broadcast, Copyright, Copyright Royalties, Intellectual Property, Internet, Satellite Radio, SoundExchange, Webcaster, webcasting, webinar

Net Neutrality: Verizon Looks For A Home Court Advantage

Posted on January 21, 2011 by Harry Cole

Another appellate round before the Comcast panel? Could be, if Verizon gets its way

Wasting no time, Verizon has taken a bold move designed to herd the next round of appeals in the Net Neutrality proceeding back before the same panel of judges who slammed the FCC in the Comcast decision last April. Verizon has filed a “notice of appeal” with the U.S. Court of Appeals for the D.C. Circuit relative to the Commission’s latest Net Neutrality decision. That alone might raise some eyebrows. But taking it one step further, Verizon has filed a separate motion asking that the Comcast panel be assigned to Verizon’s appeal.

Appellate litigation aficionados take note.

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

Posted on January 12, 2011 by FHH Law

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!

Tags: FHH, Greater Washington DC Chapter of the Internet Society, Internet, Internet Society, Net neutrality, Network Neutrality, Paul Feldman

Catherine McCullough, Communicator

Posted on January 9, 2011 by FHH Law

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.

Tags: 112th Congress, Broadcast, C-SPAN, Cable, Catherine McCullough, Cellular, FHH, Internet, Satellite Radio, The Communicators, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireline Telephony

Net Neutrality: Both Sides Are Wrong

Posted on January 7, 2011 by Mitchell Lazarus

The FCC’s new net neutrality rules won’t work. Unfortunately, there are no better alternatives in sight.

(The opinions below are those of the author. He formerly advocated network neutrality; a glimpse of what it might actually look like has prompted him to change his mind.)

Net neutrality is one of those issues that sharply divide the country. Those who take sides in the debate, do so passionately. To call it a “debate,” though, is misleading. In a debate, people listen to each other before responding. On network neutrality—as in health care, financial reform, and other key national issues—people just shout at each other. Making matters worse, the two sides not only hold conflicting opinions, but deal in conflicting facts.

You know the facts are up for grabs when both sides claim the same slogan: “Keep the Internet Free”! To some, this means keep the Internet free of regulation; to others, keep the Internet free of discrimination by the Verizons and Comcasts that connect us to the world.

One fact is inescapable: when the local Internet data load exceeds capacity, someone will decide whose traffic gets held back. It might be Comcast, making a business decision; if might be the FCC, controlling Comcast through regulation. If both keep their hands off—Keep the Internet Free!—the decision gets made anyway, by the kid down the street supplying bootleg hi-def movies through his parents’ connection. We know when he’s home from school, because service for everybody else on the street drops to a crawl.

Tags: Cellular, Comcast v. FCC, Computer III, Internet, Net neutrality, Network Neutrality, Nondiscrimination, Open Internet, Paid prioritization, Reclassification, Specialized services, Title II, Transparency, Usage-based pricing, Wireless Telephony, Wireline Telephony

You Could Be A Wiener!!!

Posted on January 7, 2011 by Christine E. Goepp

FCC launches Design-An-App contest; Goal: Equip citizenry for self-defense in Open Internet struggle

Are you a “citizen solver”? Do you want to become one?

As broadband providers across the country contemplate what they’re going to have to disclose to consumers under the FCC’s new “Open Internet” transparency requirement, the Commission is looking to open a new transparency front. The troops to be deployed to that front? An army of consumers, who would be provided with software that will reveal to them, in the comfort of their own homes, precisely what their ISPs’ traffic management practices are.

And the Commission has thought of a fun and cheap – well, cheap, at least – way to accomplish this goal. A contest! Like one of those Thanksgiving Day essay contests, but with software and the Internet and stuff. You get to spend hundreds of hours designing a software application or writing a research paper, which you then submit to the FCC. If your entry wins, you get to travel to Washington, D.C., to attend a reception with Chairman Genachowski. And (are you sitting down?) up to $500 of your travel costs will be paid by Uncle Sam, plus if the winning entry is from a team, a total of up to $1,500 in travel costs will be reimbursed! Be still my heart! (There is no second prize, but if there were, we suspect it would be the opportunity to attend two receptions with the Chairman.)

Tags: Challenge.gov, Citizen solver, Comcast v. FCC, Deadlines, Design-An-App, Enforcement Activities (Fines, Forfeitures, etc.), FCC app contest, Internet, Net neutrality, Network Neutrality, Nondiscrimination, Open Internet, Paid prioritization, People's Choice App Award, Reclassification, Specialized services, Title II, Transparency, Usage-based pricing

Update: Commission Sets Hooks Into USF Windfall

Posted on January 3, 2011 by Peter Tannenwald

FCC acts quickly to facilitate re-purposing of USF payments left behind by Verizon Wireless and Sprint-Nextel

Last September we reported that the FCC had proposed to grab hold of certain Universal Support Fund (USF) moneys that would no longer be distributed to competitive eligible communications carriers (ETCs) when Verizon Wireless and Sprint-Nextel gave up their ETC status in certain markets (in fulfillment of conditions placed on approvals of their mergers). And as we reported in October, the expectation is that the relinquished funds will be used for a new mobility broadband support fund.

The FCC has quickly adopted its proposal and made it effective immediately, to take advantage of anticipated relinquishment of ETC status in several markets by Sprint-Nextel on December 31, 2010.

Each state has a cap on ETC support from USF. Historically, when a carrier gave up support, for whatever reason, the cap stayed unchanged. With the same number of dollars available in the state, but fewer supported carriers, the remaining ETCs claimed the right to an increase in their own payments. But the FCC had other ideas, seeing an opportunity to fund part of its planned mobile broadband support program. It proposed not to allow the remaining ETCs to get any of the relinquished funds.

Tags: Cellular, Corr Wireless, Interim Cap Order, Internet, NBP, National Broadband Plan, Sprint-Nextel, USF, Universal Service Administrative Company, Universal Service Fund, Verizon Wireless, Wireless Telephony, Wireline Telephony

The Net Neutrality Order: A Look Inside

Posted on December 31, 2010 by Christine E. Goepp

We previously reported on the release of the FCC’s net neutrality rules. As promised, we have combed through the 194-page document and now provide a more in-depth look at the content and implications of the Commission’s new net neutrality rules.

The Rationale Behind the Rules

The net neutrality debate is primarily about means, not ends. Both sides agree that the Internet should be open, which means, roughly, “the way it is now.” Today, consumers are free to surf websites, download and upload content, and use any online service they choose. Internet access providers do not generally block or prioritize online service and content providers. Consumers, not ISPs, determine marketplace winners and losers. The Internet is thus increasingly attractive to both consumers and service and content providers, creating a self-nurturing “virtuous circle” of innovation and demand. Shopping, entertainment, and civic participation for all.

Tags: Comcast v. FCC, Internet, Net neutrality, Network Neutrality, Nondiscrimination, Open Internet, Paid prioritization, Reclassification, Specialized services, Title II, Transparency, Usage-based pricing

Ho-ho-ho - Net Neutrality Order Released

Posted on December 24, 2010 by FHH Law

Who says the Christmas spirit didn’t survive the 20th Century? Not us! And, apparently, not the FCC, which took the time – on the eve of Christmas Eve – to release the full text of its Net Neutrality decision. All 194 pages. Actually, the decision itself is only 87 pages long, but then there are the Commissioners’ separate statements, the rules themselves, and a bunch of other stuff that brings the total count close to the 200-page level.

What with last minute Christmas shopping, decorating, baking, and other seasonally-appropriate festivities, we confess that reading the decision has not been a top priority. We do expect to delve into it promptly and will report on our findings, but in the meantime we’re providing the link (above) to the decision for those who want to check it out themselves.

If you’re worried about the immediate effects of the decision, you can breathe a little easy – none of the new rules will take effect until: (1) the Office of Management and Budget has had a chance to give them the once-over (as required by the Paperwork Reduction Act); (2) OMB has given them the thumbs up; (3) notice of the OMB’s approval has been published in the Federal Register; and (4) 60 days have gone by after that publication. In other words, you should be able to enjoy the year-end holidays.

And we here at CommLawBlog do wish all our readers the best of the holiday season.

Tags: Cellular, Comcast v. FCC, Deadlines, Internet, Net neutrality, Network Neutrality, Nondiscrimination, Open Internet, Paid prioritization, Reclassification, Specialized services, Title II, Transparency, Usage-based pricing, Wireless Telephony, Wireline Telephony

FCC Adopts Net Neutrality Rules (Genachowski-style)

Posted on December 22, 2010 by Christine E. Goepp

New rules, solidly endorsed only by the Chairman, seem to displease everybody else; Nagging problem of statutory authority (or lack thereof) persists

The FCC, nominally a five-member organization, proved to be more of a one-man band in the adoption of net neutrality rules. While the official record reflects a 3-2 vote in favor of the rules imposing “open Internet” limitson broadband Internet access service providers, closer inspection reveals that only one member actually favored the rules which have been adopted. The vote tally was: one in favor; two strongly opposed; and two unhappy-with-the-rules-but-willing- to-sort-of-go-along-with-Chairman-Genachowski.

And with that ringing endorsement, net neutrality has become the law of the land . . . at least for the time being.

The full text of the rules (along with the accompanying order explaining them) has not yet been released. (Check back here for more in-depth analysis once the actual rules and order are available for review.) But from the FCC’s public notice announcing its decision, and from the separate statements of the Commissioners, we can report that, as anticipated, the key provisions of the rules are:

Tags: Cellular, Comcast v. FCC, Internet, Net neutrality, Network Neutrality, Nondiscrimination, Open Internet, Paid prioritization, Reclassification, Specialized services, Title II, Transparency, Usage-based pricing, Wireless Telephony, Wireline Telephony

The Webcasters' Next Five-Year Plan

Posted on December 19, 2010 by Kevin Goldberg

Copyright Royalty Board announces webcast royalty rates for 2011-2015

Yo, all you non-interactive webcasters thinking about your budgeting for, say, the next five years: the Copyright Royalty Board (CRB) has announced the rates and terms that will apply to your operations for the period January 1, 2011-December 31, 2015. Check out the table below for details of the CRB’s “Initial Determination of Rates and Terms in the Matter of Digital Performance Rights in Sound Recordings and Ephemeral Recordings” (Webcasting III).

In getting this decision out as quickly as it did, the CRB has managed to do two things this time around that it failed to do in the ratemaking proceeding for 2006-2010. First, it managed to crank out a final result in a timely fashion. (By way of contrast, the deecision setting the rates for 2006-2010 (“Webcasting II”) wasn’t published in the Federal Register until May, 2007, at which point it had to be applied retroactively to the preceding 16 months or so.) And second, the CRB appears to have achieved relative consensus. (Again by way of contrast, Webcasting II resulted in both a two-year court challenge and an attempted legislative response).

As some psychologists tell us, even a worm can learn. And that adaptive phenomenon may be at work here as well. The CRB’s ability to achieve a quick and seemingly harmonious result almost certainly derives from its previous experience. Recall that the Copyright Act mandates that royalty rates for non-interactive webcasters be based on a “willing buyer/willing seller” standard, a standard that calls for rates that “most clearly represent the rates and terms that would have been negotiated in the marketplace”. The rate system adopted in Webcasting II was attacked as contrary to that statutory mandate. But eventually a series of webcaster settlement agreements were struck among various sectors of the webcasting industry (including both commercial and noncommercial broadcasters), so the heavy lifting was done: those agreements, negotiated by the private parties at arms’ length, provided a mutually agreeable resolution between willing buyers and willing sellers.

Tags: 2011-2015 term, Broadcast, CRB, Copyright, Copyright Royalties, Copyright Royalty Board, Copyright royalty, Intellectual Property, Internet, webcasting

Genachowski Signals Bold Net Neutrality Move

Posted on December 8, 2010 by Christine E. Goepp

At Chairman's insistence, Commission will vote on new net neutrality rules in December despite shaky legal foundations and opposition in Congress.

On December 1, Chairman Genachowski announced that he has circulated a draft net neutrality order to be voted on at the Commission’s December 21 meeting. While the draft has not been made public, the Chairman’s announcement provides some insight into its contents. Here is an overview of the Chairman’s proposed approach, the Commission’s authority to implement that approach, and the likelihood of its success.

The Proposed Rules

Genachowski’s remarks indicate that the current proposal is broadly similar to the one he introduced last Fall (you can read our report on that earlier effort here), with some refinements on specific issues like usage-based pricing and wireless. The draft is reportedly modeled on a net neutrality bill developed by departing House Commerce Chairman Henry Waxman (D-CA) earlier this Fall in an unsuccessful attempt to help the FCC out of its Comcast hole through legislative compromise. In particular, it appears that the proposed rules would include:

a transparency provision, with a requirement to provide consumers with information regarding network management;
a non-discrimination clause prohibiting the blocking of lawful content, apps, services, and devices as well as “unreasonable discrimination in transmitting lawful network traffic”. The non-discrimination clause would allow for “reasonable network management”, taking into account the nature of the network in determining what is reasonable; and
some latitude for usage-based pricing to consumers and other measures to match price to cost.

For wireless, the proposal would include transparency and a “basic” no blocking rule. The FCC would monitor the mobile market and take such further steps as may be necessary to counteract any “anti-competitive” or “anti-consumer” behavior.

Tags: Cable, Cellular, Comcast v. FCC, Internet, Net neutrality, Network Neutrality, Nondiscrimination, Reclassification, Title II, Transparency, Usage-based pricing, Wireless Telephony, Wireline Telephony

Effective Date Set For Updated, Upgraded E-Rate Program

Posted on December 3, 2010 by Frank Jazzo

New and improved universal service support mechanism for schools, libraries to become effective January 3

The FCC’s Sixth Report and Order (6th R&O) in its Schools and Libraries Universal Service Support Mechanism proceeding (more commonly known as “the E-rate program”) – first adopted last September – has finally been published in the Federal Register. This means that the revised rules will take effect on January 3, 2011 .

In the 6th R&O, the FCC has upgraded and modernized the E-rate program, consistent with the National Broadband Plan’s (NBP’s) vision of improving broadband connectivity at the nation’s schools and libraries.

The revisions adopted in the 6th R&O fall into three conceptual categories: (1) providing schools and libraries with greater flexibility to select and make available the most cost-effective broadband and other communications services; (2) simplifying the E-rate application process; and (3) improving safeguards against waste, fraud and abuse.

In particular, the 6th R&O provides schools and libraries with more flexibility by allowing applicants to lease dark or lit fiber from the most cost-effective provider. The FCC has also changed its rules to allow schools to permit community use of E-rate funded services outside of school hours. With affordable fiber, these “School Spots” are a major step toward the NBP’s goal of connecting an anchor institution in every community to affordable 1 gigabit per second broadband. The FCC indexed to the inflation rate E-rate’s funding cap in order to maintain purchasing power. Finally, the FCC seeks proposals for a limited pilot program to establish best practices to support off-campus wireless connectivity for portable learning devices, such as digital textbooks, outside of regular school or library operating hours. The Commission has separately announced that applications for the pilot program must be submitted on or before December 17, 2010.

Tags: 6th Report and Order, Digital literacy, E-Rate, Education, Internet, Schools and Libraries Universal Service Support Mechanism

TV Spectrum Re-Purposing Out For Comment

Posted on December 1, 2010 by Lee Petro

Proposed changes would pave the way for broadband occupation of TV bands

That muffled sound you might have heard on November 30 was the opening barrage in the long-anticipated struggle to revamp the TV spectrum. More than a mere warning shot but still well short of a coup de grâce, the FCC’s Notice of Proposed Rulemaking (NPRM) is certain to shake the foundation of the television industry – an industry which is still re-building itself in the wake of the DTV Transition tsunami that crested in 2009.

The FCC’s goal in the NPRM is to “lay important groundwork” (in Chairman Genachowski’s words) toward the ultimate goal of permitting fixed and mobile broadband use in the TV band. Such use is thought by the Commission to be necessary to deal with the all-but-certain “spectrum crunch” which is expected to result from burgeoning mobile broadband demands.

The FCC’s ultimate game plan appears to include coaxing existing TV broadcast licensees off their current channels in order to free up blocks of prime spectrum which would then be auctioned off for broadband use. While the Commission does not have the authority to “incentivize” broadcasters through, e.g., the sharing of the proceeds from such auctions, a couple of bills pending in Congress would provide such authority. The NPRM is intended to put the Commission in a position to move as quickly as possible toward effective spectrum repurposing if and when Congress gives it the power to share auction proceeds with displaced broadcasters.

The NPRM proposes three significant changes to the FCC’s rules.

Tags: Auction Revenue Sharing Plan, Broadcast, Cellular, DTV, DTV Transition, Internet, Julius Genachowski, Michael Copps, NBP, NPRM, National Broadband Plan, Notice of Proposed Rulemaking, Section 2.106, Spectrum re-purposing, Spectrum redistribution, TV channel-sharing, TV spectrum, Wireless Telephony

TRO Slows FilmOn.com Down

Posted on November 23, 2010 by FHH Law

But (some of) the show still goes on at Internet cable operation

Bad news for FilmOn.com. On November 22, a federal judge in New York ordered it not to “infring[e] by any means, directly or indirectly”, any copyrights owned by CBS, NBC, ABC or Fox. Judge Naomi Reice Buchwald made sure that the scope of her order included (but wasn’t limited to), the “streaming over mobile telephone systems and/or the Internet of any of the broadcast television programming in which any plaintiff [that would be any of the networks] owns a copyright”.

The order – technically termed a Temporary Restraining Order or (among the cognoscenti) a TRO – will be in effect pending a full hearing on the nets’ related request for a preliminary injunction against FilmOn.com.

This isn’t necessarily the end of the road for FilmOn.com, though. As we pointed out when we first described FilmOn.com to our readers last month, there are many moves to be made on the various litigation chessboards already in play. And even in this particular case, a TRO is just a first step in the process. The networks have asked for more permanent relief – in the form of an injunction – against FilmOn.com’s allegedly infringing activities. But before an injunction can issue, the court will let all the parties submit written arguments and then hold a hearing. The hearing date hasn’t been set yet, but the judge’s order specifies that all papers must be filed by December 13, so it doesn’t look like there’s going to be much foot-dragging here.

Nor does the fact that a TRO has issued necessarily mean that the court will issue an injunction. It just means that the judge was satisfied that the networks had a good enough case to warrant putting a hold on FilmOn.com’s activities until a hearing could be held to sort everything out.

According to a statement issued by FilmOn.com, it has “temporarily ceased retransmission of free network television” on its service. It’s still “open for business”, though, relying on its own “library of content” along with several independent broadcasters who have apparently signed up with it. Check back here for updates.

Tags: Broadcast, Cable, Cable Compulsory License, FilmOn.com, Intellectual Property, Internet, Section 111, iCraveTV, ivi TV

Point-Counterpoint: Peter Tannenwald Responds To The Chairman

Posted on November 22, 2010 by Peter Tannenwald

Another view on the FCC’s efforts to repurpose broadcast spectrum for broadband-only use

FCC Chairman Julius Genachowski’s Op-Ed piece in the Washington Post shows his exceptionally energetic devotion to making broadband available to all Americans. But his perceptions of the need for broadband and how to meet it are both misguided and backward-looking.

No one disputes the importance and value of broadband in education, health care, and economic growth or the Chairman’s devotion to improving broadband access. But it does not follow that all broadband must be wireless or that TV services must be curtailed, stifling innovations like HD, multiple program channels, and 3D. On the contrary, if it will be possible at all to satisfy the seemingly insatiable public appetite for wireless services within a finite amount of spectrum, the best, if not the only, way to do it will be by marrying broadcasting and broadband into a combined service.

That means promptly unleashing broadcasters from today’s TV technical standards, which the FCC can do on its own, with no Congressional action. Freeing broadcasters from technical constraints will produce a much faster and more effective broadband result than the Chairman’s spectrum “repurposing” plan. In other words, the question is not whether spectrum should be used for broadband OR broadcasting, but whether and when the FCC will allow it to be used for broadband AND broadcasting.

Tags: Broadcast, Cellular, Internet, Julius Genachowski, NBP, National Broadband Plan, Peter Tannenwald, Spectrum re-purposing, Spectrum redistribution, TV spectrum, Wireless Telephony

A Lobbyist's Look At Telecom In The Next Congress

Posted on November 19, 2010 by FHH Law

Love and money are likely to be the keys to the game.

[Blogmeister’s Note: CommLawBlog welcomes back Catherine McCullough, who provides us with the following insight into the upcoming Congressional session. Catherine, who has guest-blogged for us previously, is a principal in Meadowbrook Strategic Government Relations, LLC and is a specialist in Congressional relations.]

Welcome to the 112th Congress. Notice anything missing? Like a third of the House Energy and Commerce Dems? Or a Congressional mandate on net neutrality? Or Chairman Boucher? Me too. So let’s take a few minutes to figure out what it all means.

Let’s start with the larger picture. This year’s midterms have put Members on notice that voters are not afraid to fire them. And each party is looking to 2012 to capture complete control of both houses of Congress and the White House.

So in the upcoming Congress look for Members to be feverishly competing for two things: love and money. Love in the form of votes (from an unusually angry electorate, eager to hold officials accountable). And money in the form of, well, money, i.e., the ability to spend government funds on their preferred projects (without, of course, looking fiscally irresponsible).

As we shall see, both love and money can be found in telecom policy. So it’s likely that telecom issues will get considerable attention from Congressional leadership, including precious “floor time” for debate. Here is how I see the 112th playing out.

NTIA Charts Ten-Year Plan/Five-Year "Fast Track" Jumpstart To Broadband Nirvana

Posted on November 16, 2010 by Lee Petro

Spectrum re-purposing process underway with release of Ten-Year Plan and Fast Track Evaluation

Those of you awaiting the FCC’s November 30 meeting (when the Commission is scheduled to unveil its plan for repurposing of TV spectrum) may want to get warmed up for that experience by leafing through two reports just issued by the National Telecommunications and Information Administration (NTIA). (Nit-picky observation: while the covers of both reports bear an “October 2010” date, both were first posted on the NTIA website on November 15.)

One – titled “Plan and Timetable to Make Available 500 Megahertz of Spectrum for Wireless Broadband” (Ten-Year Plan) – outlines in 23 pages of text (with some dazzling charts and tables) the overall process by which the government plans to jigger with existing spectrum usage in order to wring out 500 MHz for wireless broadband.

The second – with a formal title even more prosaic than the Ten-Year Plan’s (we’ll just refer to it as the Fast Track Evaluation) – lays out over more than 250 pages of text, tables, lists (and a two-and-a-half page glossary of abbreviation and acronyms) the analytical process through which the Feds have identified 115 MHz of their own spectrum which they would like to feed to the Voracious Broadband Beast within five years.

NTIA has also issued a more digestible five-page “fact sheet” summarizing the two longer items.

The Fast Track Evaluation illustrates a couple of things.

Tags: Broadcast, Cellular, Fast-Track Evaluation, Internet, NBP, NTIA, National Broadband Plan, National Telecommunications and Information Administration, Spectrum re-purposing, TV spectrum, Ten-Year Plan, Wireless Telephony, Wireline Telephony

Beware The Copyright Troll

Posted on November 9, 2010 by Kevin Goldberg

Aggressive litigants may pose problems for the careless and unwary

There’s a new monster on the prowl, and you or your business could be its next victim. Don’t bother looking over your shoulder, because you won’t see it coming. The first you’ll know about it will be when the threatening letter arrives, or perhaps the notice of the Federal lawsuit, or the subpoena.

And at that point, it may be too late.

We’re talking about the Copyright Troll, a recent unfortunate phenomenon of the Internet Age identified several years ago and recently brought into clear focus through the vigilant efforts of the Electronic Frontier Foundation (EFF), in particular, as well as other protectors of our civil liberties.

Tags: Ars Technica, Copyright, Copyright infringement, Copyright troll, EFF, Electronic Frontier Foundation, First Amendment, Intellectual Property, Internet, John Doe lawsuits, Wired

Plans For Gobbling Up TV Spectrum To Be Unveiled Post-Thanksgiving

Posted on November 5, 2010 by Mitchell Lazarus

FCC’s November 30 agenda also includes proposals affecting experimental licenses, short-term spectrum use.

The FCC is preparing itself for an exciting 2011.

Here in the CommLawBlog bunker, we usually wait for things to happen before reporting on them. But the FCC’s recent release of the planned agenda for its November 30 meeting serves up items likely to cause such a huge stir that we all might need a little advance warning.

First is a Notice of Proposed Rulemaking on “TV Spectrum Innovation.” Remember the DTV transition when, among other changes, almost all TV stations switched their channels? The FCC wants to do it again. The shift to DTV freed up 108 MHz of prime spectrum, half of which the FCC auctioned off for $20 billion. It’s hard to argue with that many zeroes, so it’s back to the well for another dip.

The idea is to take away still more TV spectrum and auction that off, too. In theory, a displaced broadcaster could walk away with some of the auction money and open an aromatherapy boutique, or whatever his/her life’s dream is. Or he/she might double up with another broadcaster on a surviving channel. Although the FCC can authorize the channel sharing itself, sharing the auction money would require action by Congress. (As we have previously reported – here (about S. 3610) or here (about H.R. 5947), or here (about S. 3756) – that legislation is already in the works.) While the FCC has made no secret of its aim to scavenge TV spectrum for broadband use, the precise mechanics have not yet been spelled out. On November 30 we should get a clearer picture of what the FCC has in mind.

Tags: Broadcast, Cellular, FCC Agenda, Internet, Opportunistic use, Spectrum re-purposing, TV spectrum, Unlicensed Operations and Emerging Technologies, White Spaces, Wireless Microphones, Wireless Telephony, Wireless mics

FCC Says: Send Us Toys!

Posted on November 1, 2010 by Mitchell Lazarus

The holidays are still a few weeks off, and the FCC just can’t wait.

The FCC is opening a new “Technology Experience Center.” Its purpose? To give “FCC employees and invited guests hands-on experience with the latest communications devices and solutions.”

Let us explain what this is really about.

Part of our job here at FH&H is persuading the FCC to adjust its technical rules, when needed, to accommodate new technologies. This can be a slow and difficult process. We find it helps, when visiting the FCC, to put on the table a specimen of the gadgetry at issue, preferably smooth and shiny with blinking lights. The FCC engineers inevitably play with the item, push the buttons, and pry off the cover to see the insides. (Interestingly, most lawyers refuse all hands-on contact.) Once the staff gets a close-up, first-hand look at the technology, the rule changes seem to come more easily.

Apparently, though, people like us are not bringing in new gadgets often enough. So the FCC is asking for more. Sure, they dress up the request by calling it a “Technology Experience Center”, whatever that is. But we think the real purpose is plain: more toys. Manufacturers and vendors who want to donate devices now have a phone number to call. Of course, the FCC tells contributors not to expect any benefit, and warns that acceptance of a gadget does not constitute endorsement. But even so, we think UPS is going to see a lot more boxes than usual headed for the Portals. We picture a big playroom with lots of shelves filled with blinking lights.

For us, the goal will be, somehow, to get on the list of “invited guests.”

Tags: Broadcast, Cable, Cellular, Internet, Satellite Radio, Technology Experience Center, Unlicensed Operations and Emerging Technologies, Wireless Telephony, Wireline Telephony

Comment Deadlines Set In Mobility Fund Rulemaking

Posted on November 1, 2010 by FHH Law

Deadlines have been set for comments and reply comments in the proceeding aimed at devising a mechanism for distributing the “Mobility Fund” realized through the FCC’s re-direction of USF funds left on the table by Sprint and Verizon. We described the Notice of Proposed Rulemaking last week. Now the NPRM has been published in the Federal Register, which means that comments are due by December 16, 2010, and replies are due by January 18, 2011.

Tags: Cellular, Corr Wireless, Deadlines, Interim Cap Order, Internet, NBP, National Broadband Plan, Sprint-Nextel, USF, Universal Service Administrative Company, Universal Service Fund, Verizon Wireless, Wireless Telephony, Wireline Telephony

FCC Proposes Distribution Mechanism For USF Windfall

Posted on October 28, 2010 by Donald Evans

Proposal: Dole out up to $300 million through reverse auction to bring 3G to underserved areas

As we have reported, the FCC decided last month that, instead of re-distributing to CETC’s the $500 million or so in USF funds which Verizon and Sprint renounced as a condition of getting their mergers approved, it would keep the money in a rainy day fund to support broadband mobility. The FCC’s action in that regard was highly suspect on legal grounds (full disclosure: FHH represented the lead proponent of re-distribution of the money to CETCs). Nevertheless, the Commission initiated a rulemaking to try retroactively to justify its unprecedented action. And now it has opened another rulemaking to determine where and how the so-called “Mobility Fund” will be distributed.

This proceeding may be a classic case of pre-natal chicken enumeration, since the Commission’s original palming of the Verizon/Sprint funds remains very much in contest. A spate of petitions for reconsideration have been filed, and the matter is likely to go to the Court of Appeals if the FCC remains unmoved. That process could easily take two years, maybe longer. So no matter what happens in the new rulemaking, Mobility Fund dollars are not going to be finding their way into anyone’s pockets soon, if ever.

That said, the Commission’s proposal for distributing the Mobility Fund is a solid step forward in tailoring the distribution of Universal Service Fund support to those precise areas that most need it without wasteful duplicative support payments. The FCC proposes to distribute $100-$300 million dollars from the Fund by conducting a reverse auction. Bidders would propose to offer 3G-level service in census tracts around the country that have been designated by the FCC as underserved. The bidder who proposes to provide the service with the lowest amount of support from the Mobility Fund would be awarded the subsidy at that level. There would be only one recipient in each census tract.

Some specifics from the Commission’s proposal:

Tags: Cellular, Corr Wireless, Interim Cap Order, Internet, NBP, National Broadband Plan, Sprint-Nextel, USF, Universal Service Administrative Company, Universal Service Fund, Verizon Wireless, Wireless Telephony, Wireline Telephony

White Space Wite-Out®

Posted on October 21, 2010 by FHH Law

It’s okay; we all make mistakes.

The FCC’s recent order on white space devices, which we reported on here, and followed up on here, had a few glitches. The FCC has now released a longer-than-usual erratum clearing them up.

Tags: Broadcast, Cellular, Erratum, Internet, LPTV", Low power television, MVPD, STA, Special Temporary Authorization, Super Wi-Fi, TVBD, Television Band Devices, Translator, Unlicensed Operations and Emerging Technologies, White Space, White Spaces, Wi-Fi, Wireless Telephony

Congress: Bringing Digital Eyesight To The Blind?

Posted on October 17, 2010 by Christine E. Goepp

Wide-ranging legislation looks to expand access for blind and visually-impaired across the 21st Century communications videoscape.

Get set for a new set of sweeping changes cutting across all components of the communications universe, broadband and broadcast alike. On October 8, President Obama signed the Twenty-First Century Communications and Video Accessibility Act of 2010 (21CenComVidAccAct) into law. The new law dramatically expands disability access law to include accessibility requirements for a wide range of equipment and services, such as VoIP phones, browser-enabled smartphones, email and text messaging services, webcasts of TV programs, video and navigation devices, and others.

While the debate over the FCC’s authority to generally regulate broadband rages on, in this area at least the discussion is over. As one FCC official noted during a panel discussion on broadband adoption, the 21CenComVidAccAct “ventures into broadband access like no legislation ever has” by giving the FCC an “enormous mandate” to ensure that various communications are accessible to people with disabilities.

And the implications of the Act may go beyond communications-for-the-disabled policy.

Tags: Accessibility, Broadcast, Cable, Captioning, Cellular, Communications for the blind and visually-impaired, Hearing aid compatibility, Internet, Satellite Radio, Twenty-first Century Communications and Video Accessibility Act of 2010, Video description, VoIP, Wireless Telephony

Another Online Service Hoists "Cable" Flag Of Convenience

Posted on October 12, 2010 by Kevin Goldberg

FilmOn.com joins ivi TV in claiming status as cable carrier, streams OTA broadcast content online

Online service = cable company? The concept has yet another proponent – FilmOn.com, Inc. (FilmOn). Launching an online service featuring over-the-air content (in late September, just in time for the start of the new TV season), FilmOn has joined ivi TV in the fray over the alleged right of the upstart online companies to webcast broadcast programming to subscribers. And already FilmOn is on the wrong end of a lawsuit brought by folks looking to nip that claim in the bud.

The result could accelerate a final and authoritative disposition of the issue, one way or the other.

Tags: Broadcast, Cable, Cable Compulsory License, FilmOn.com, Intellectual Property, Internet, Section 111, iCraveTV, ivi TV

Poison ivi?

Posted on September 30, 2010 by Kevin Goldberg

Would-be Internet cable service causes irritating rash among broadcasters and programmers

A Seattle-based Internet company – ivi TV (ivi) – has popped up with a novel theory: ivi thinks that its online-only service is the functional equivalent of a cable TV system. Relying on that theory, ivi is claiming that it has a statutory right to retransmit over-the-air broadcast programming. Suffice it to say that, if validated, that theory could radically alter the broadcast carriage landscape as contemplated by the Copyright Act.

Coming out of nowhere with a bold stance, a strong message and, it seems, at least moderate funding, ivi has managed thus far to irritate major networks, broadcasters and even sports leagues. Not surprisingly, it has found itself on the receiving end of several “cease and desist” letters.

But rather than fold, ivi has upped the ante. It has effectively gone “all in”, asking a Federal District Court in Washington State for a declaratory judgment that ivi hasn’t infringed anybody’s copyrights and that it is, in fact, entitled to retransmit over-the-air programming.

The question is whether the company can cash out even if it wins this hand.

Tags: Broadcast, Cable, Cable Compulsory License, Intellectual Property, Internet, Section 111, iCraveTV, ivi TV

A Closer Look At Some White Spaces Fine Print

Posted on September 27, 2010 by Peter Tannenwald

Protection of TV STAs overlooked; Potential protection of LPTV, TV translator, cable, etc. OTA-receive sites expanded

Poring over the fine print of the FCC’s “white spaces” decision we wrote about last week, we have found two issues that merit the attention of TV broadcasters.

White spaces devices, of course, will operate on vacant TV channels and will have to protect TV broadcast stations. Each device will consult a database to determine which TV channels can be safely used at the device’s location. Devices may have to change channels as necessary from time to time to afford the required protection.

Since the selection of vacant channels will be a dynamic process, the FCC wants to make sure that only channels actually in use by TV stations are marked as off-limits. So, for example, channels occupied by unbuilt TV construction permits would be available for white spaces devices, since, being unbuilt (and, thus, inoperative), the TV CPs would not be subject to any actual interference. With that in mind, the new rules provide that the white spaces database need recognize only granted or pending license applications for both full and low power TV stations.

Whoops. What about Special Temporary Authorizations (STAs)?

Tags: Broadcast, Cellular, Internet, LPTV", Low power television, MVPD, STA, Special Temporary Authorization, Super Wi-Fi, TVBD, Television Band Devices, Translator, Unlicensed Operations and Emerging Technologies, White Space, White Spaces, Wi-Fi, Wireless Telephony

Commission Cracking Down On Toll-Free Numbers For iTRS Use

Posted on September 22, 2010 by Peter Tannenwald

Proposal would dramatically restrict iTRS-provider-provided toll-free numbers

In a move that may at first seem counter-intuitive, the Commission is proposing to restrict the issuance of toll-free telephone numbers affording access to deaf and hard-of-hearing people for use with the Internet-based Telecommunications Relay Service (iTRS). But even though the restrictions might appear to deprive deaf and hard-of-hearing people of a possible benefit, there is method to the FCC’s madness – and it has the support of a number of groups representing deaf and hard-of-hearing people, to boot.

The government subsidizes services which allow people with hearing disabilities to communicate by telephone with persons with or without normal hearing. Those services (generically known as “Telecommunications Relay Service”, or TRS) have been greatly improved by the advent of home computers and now for the most part come in two flavors of Internet-based access – “Video Relay Service” and “IP Relay” – which the FCC refers to collectively as iTRS. (Click here for an overview of TRS generally.)

Prior to 2008, iTRS users (i.e., deaf and hard-of-hearing persons) could be reached on the Internet through IP addresses, proxy or alias phone numbers, or toll-free phone numbers. iTRS providers routinely would give iTRS users a toll-free number which the provider controlled. Most people seeking to reach an iTRS user would dial that toll-free number, and the iTRS provider would route the call to the iTRS user with which the iTRS provider had associated the called number in the provider’s database. But back then, providers didn’t share their databases, which meant that people calling the iTRS user were forced to use the service of the iTRS provider that issued the toll-free number to the iTRS user. Such arrangements ran counter to the FCC’s policy to allow users to pick different iTRS providers without changing equipment.

Tags: Internet, Internet-based Telecommunications Relay Service, TRS, Telecommunications Relay Service, Toll-free numbers, Wireless Telephony, Wireline Telephony, iTRS

Analog LPTV: The End Is Near . . . Maybe Really Near

Posted on September 21, 2010 by Peter Tannenwald

Among other transition-related details, Commission proposes 2012 termination for analog LPTV service, even earlier clearing of LPTV from 700 MHz band channels

The FCC says it’s time to close the lid on the analog TV coffin for good. In a Further Notice of Proposed Rulemaking and Memorandum Opinion and Order (NPRM), the Commission has started the ball rolling for the final shut down of all remaining analog Class A, LPTV and TV Translator stations (for convenience, we’ll simply refer to them all as “LPTV”).

Full-power TV licensees were required to abandon analog and embrace digital no later than June 12, 2009. While the Commission has, since 2004, permitted LPTV stations to convert to digital, it has not made the conversion mandatory. But now that the full-power conversion deadline has come and gone, the Commission believes that LPTV operators should also be herded into the digital corral. So the Commission is seeking comment on a number of proposals for accomplishing that goal.

The proposals include a hard – and fast-arriving – deadline for all LPTV stations to convert to digital operation. Another proposal would impose an equally hard – but faster-arriving – deadline for all LPTV stations (whether analog or digital) to clear out of Channels 52-69. (Channels 52-60 comprise the 700 MHz band which was cleared of full-power TV stations and allocated to commercial and public safety wireless services years ago. LPTV stations have been permitted to stay on in that band on a non-interference basis – until now.)

The NPRM is light on the specifics of the final mandatory conversion process. As envisioned by the Commission, the Media Bureau would be responsible for devising and implementing the nitty-gritty details. But the Commission has laid out a number of questions for comment.

Tags: 700 MHz band, Ancillary/Supplementary services fee, Broadcast, Class A Television, DTV, DTV Transition, Deadlines, Digital Television, Digital emission mask, Internet, LPTV, LPTV/TV Translator, Minor change, NPRM, Notice of Proposed Rulemaking, TV translator, Vertical radiation pattern

Déjà Vu All Over Again

Posted on September 19, 2010 by Kevin Goldberg

The Copyright Royalty Board (CRB) has announced that noncommercial webcasters must pay a $500 per channel annual minimum fee to perform copyrighted sound recordings during the 2006-2010 rate term. Big deal? Not really. Why not? Several reasons:

The 2006-2010 rate term is ending in about three months, with a ratemaking proceeding ongoing to determine the rates applicable to webcasting during 2011-2015 rate term. So this “new” annual per channel minimum may change sooner rather than later (though we actually doubt it).
We’ve put “new” in quotation marks above because the original decision of the CRB, adopted back in 2007, set the annual minimum fee for both commercial and noncommercial webcasters at $500 per channel per year – so it’s not like anybody should really be surprised at the concept of such a fee.
When the CRB’s 2007 decision was challenged in federal court, the only aspect of the decision remanded to the CRB for more consideration was the amount of the annual minimum payment – at which point we predicted that the CRB would simply reinstate the $500 per channel annual minimum fee.
Before the CRB could validate our prescience, SoundExchange (representing the copyright owners) entered into settlement agreements with several types of webcasters – and each of those agreements provided for a $500 per channel annual minimum fee. This is important not only because it made the most recent CRB ruling easy to predict but also because it means that, technically, that ruling applies only to those noncommercial webcasters who hadn’t already entered into one of the three noncommercial webcasting settlement agreements.
When the CRB did wrap up the initial phase of its post-remand chores – relative to the fee to be applied to commercial webcasters – it reinstated the $ 500 per channel annual minimum.

So the re-imposition of the $500 fee for noncommercial webcasters is not really an earth-shattering or completely unexpected surprise. In fact, its actual impact may be extremely limited, since most noncommercial webcasters probably assumed they were on the hook for a $500 annual minimum payment for each channel anyway, budgeted for it accordingly, and made the 2010 payment without a second thought.

Why bother to post about the CRB’s decision then? Because it does provide a couple of points to consider.

Tags: Annual payment, Broadcast, CRB, Copyright Royalties, Copyright Royalty Board, Copyright Royalty Judges, Intellectual Property, Internet, Non-interactive webcasting, SoundExchange, webcasting

Comment Deadlines Set On Proposed Re-Direction Of USF Funds

Posted on September 16, 2010 by FHH Law

Deadlines have been set for comments and replies on the Commission’s proposal to amend certain aspects of the Universal Service Fund. As we reported last week, the FCC is proposing “to facilitate efficient use of reclaimed excess high-cost support” in the Universal Service Fund by “reclaim[ing]” cash that Verizon Wireless and Sprint-Nextel left on the table back in 2008. The Notice of Proposed Rulemaking has now been published in the Federal Register, which in turn establishes the participation deadlines. Comments are due by October 7, 2010 (i.e., 21 days after Federal Register publication); reply comments are due by October 21, 2010 (i.e., 35 days after publication).

Tags: Cellular, Corr Wireless, Deadlines, Interim Cap Order, Internet, NBP, National Broadband Plan, Sprint-Nextel, USF, Universal Service Administrative Company, Universal Service Fund, Verizon Wireless, Wireless Telephony, Wireline Telephony

联邦通信委员会, 在洛杉矶亚裔美国人和太平洋岛民的论坛会, 将公布全国宽带亚洲语言翻译计划概要.

Posted on September 14, 2010 by Christine E. Goepp

Puzzled by the headline? So was I last month, when the Commission issued a public notice bearing the header “FCC TO RELEASE ASIAN LANGUAGE TRANSLATIONS OF NATIONAL BROADBAND PLAN SUMMARY AT LOS ANGELES FORUM FOR ASIAN AMERICAN AND PACIFIC ISLANDER COMMUNITIES”. The particular “communities” for which translations have now been issued are “Chinese (Simplified), Samoan, Tagalog, Korean, Thai, and Vietnamese”.

What puzzled me was not that the translations were being made available – that, after all, was consistent with the Commission’s full-court, no-holds-barred effort to “raise awareness of broadband”.

No, what puzzled me was that the FCC’s public notice was issued only in English.

Maybe I’m missing something, but if folks can’t understand English enough to read the National Broadband Plan in its original form, how are they going to understand an English language public notice alerting them to the availability of non-English versions? Wouldn’t it make more sense to issue the public notice in, say, Chinese (Simplified), or Samoan, or . . . well, you get the picture.

Tags: Asian-language, Cable, Cellular, Chinese, Internet, Korean, NBP, National Broadband Plan, Samoan, Tagalog, Thai, Translations, Unlicensed Operations and Emerging Technologies, Vietnamese, Wireless Telephony

Deadlines Set In Further Net Neutrality Inquiry

Posted on September 10, 2010 by FHH Law

Less than a week ago we reported on the FCC’s inquiry into two “under-developed issues” relative to the Network Neutrality debate. (The issues on the table include how the Commission’s Open Internet approach should address: (1) certain “specialized” services – referred to in the NPRM as “managed or specialized services”; and (2) mobile wireless platforms.) The Commission’s notice has now been published in the Federal Register, thus establishing the deadlines for comments and reply comments. If you’re planning on filing comments, you have until October 12, 2010; reply commenters will have until November 4, 2010.

USF Bonanza Broadband-Bound?

Posted on September 7, 2010 by Peter Tannenwald

FCC proposes to re-direct cash left behind by Verizon Wireless, Sprint-Nextel

If you managed to clear out of the office early for the Labor Day weekend, you may have been lucky enough to miss the release of the latest salvo in the FCC’s effort to reform the Universal Service Fund (USF). The Commission’s Order and Notice of Proposed Rulemaking (NPRM) hit the e-distribution system late on Friday afternoon, just as the local streets were clearing after an early rush hour and beach-bound traffic was slowing to a crawl.

The Commission’s new USF game plan involves the likely dedication of hundreds of millions of dollars to subsidize broadband in furtherance of the National Broadband Plan (NBP). (Many observers believe the NBP has replaced the Communications Act of 1934 as the FCC’s Prime Directive.) The cash would come from the existing USF pool of funds – although precisely how the Commission justifies its proposed approach may raise some eyebrows. Still, it seems that that approach may be a fait accompli: the Commission has allotted a mere 21 days for comments on its proposal (and another 14 days for replies).

Tags: Cellular, Corr Wireless, Interim Cap Order, Internet, NBP, National Broadband Plan, Sprint-Nextel, USF, Universal Service Administrative Company, Universal Service Fund, Verizon Wireless, Wireless Telephony, Wireline Telephony

FCC Narrows Focus In Network Neutrality Dispute

Posted on September 4, 2010 by FHH Law

Public notice seeks further comments on specialized and wireless services

As all Network Neutrality aficionados know, last October the Commission took a huge step toward adopting Net Neutrality rules by issuing a Notice of Proposed Rulemaking (NPRM) in which it laid out six principles that would be codified in the FCC’s rules. (Check out our post about the NPRM here.) The proposal was, and remains, ambitious – and subject to considerable debate. That debate is complicated by the fact that Internet-related technological and commercial developments and innovations continue despite, or possibly because of, the pendency of the NPRM.

Apparently responding to some of those developments and innovations, the Commission has now issued an inquiry into two “under-developed issues” in its on-going “Open Internet” deliberations. In particular, the FCC is focusing on how its Open Internet approach should address: (1) certain “specialized” services (referred to in the NPRM as “managed or specialized services”); and (2) mobile wireless platforms.

Much has happened in the 10 months since the NPRM was released. Over and above the tens of thousands of comments which have been submitted in response to the NPRM, the Open Internet approach has been addressed, often contentiously, in Congress, at the FCC, and in countless other public venues. The discussion has been dramatically affected by the D.C. Circuit’s Comcast decision, which undercut the jurisdictional basis for the proposed Open Internet rules. Chairman Genachowski has announced a novel “Third Way” proposal – not formally adopted by the Commission, but nevertheless supported by two other Commissioners and the FCC’s General Counsel – which might allow the Commission to achieve its Open Internet goals despite the limitations imposed by the Comcast decision. Negotiations have been held among the major players under the auspices of the FCC and Congress. And Verizon and Google have reached agreement on a “Legislative Framework Proposal” (Verizon-Google Proposal) intended, in their words, to “preserve the open Internet”.

With so many moving parts, it's little wonder that the FCC needs more information.

The NAB And The PRA: What's Up With That?

Posted on August 19, 2010 by Kevin Goldberg

Brilliant stratagem or craven sell-out? It’s too soon to tell – so concentrate and ask again later.

Despite the fact that things on the Performance Rights Act (PRA) front remain quiet down on Capitol Hill, talk about the PRA has been burning up the trade press and the blogosphere lately. The reason? Reports that the National Association of Broadcasters (NAB) sat down with representatives from the music industry to discuss, among other things, the question of performance rights. Throw in a statement from an NAB spokesman alluding vaguely to “possible alternatives to pending legislation” (i.e., presumably, the PRA), and you’ve got the grist for a blog-tastic free-for-all in which anybody and everybody has an opinion, even though most lack a complete picture of exactly what might be going on.

CommLawBlog has done its fair share of writing on the PRA, but it’s been a while. In the midst of the sturm und drang, I think it might be useful to clarify what we know and what we don’t know before the chatter gets out of hand (and if you know something that we don’t, feel free to chime in in the comment section).

Here’s what we know:

Tags: Broadcast, Cellular, Copyright royalty, HR 848, Intellectual Property, Internet, Local Radio Freedom Act, NAB, National Association of Broadcasters, PRA, Performance Rights Act, S.379, Streaming, Wireless Telephony

From The Department Of Redundancy Department: Another Request For Broadband Deployment Data!

Posted on August 13, 2010 by Alan Campbell

Congress wants annual reports. The FCC delivers. The rest of us yawn.

The Commission has released its Seventh Broadband Deployment Notice of Inquiry (7th NOI), the ostensible purpose of which is to determine whether broadband is being deployed to all Americans in a reasonable and timely fashion.

As we glance through it, our overriding question is: Why?

The simple answer is because Congress said so. In the Telecommunications Act of 1996, Congress required the Commission to crank out such reports on an annual basis. It’s that time of year again, for the seventh time.

But the FCC already has most of the answers to the questions it asks, answers which are, in fact, pretty obvious both historically and logically. The FCC could as easily have skipped over the subject matter of the 7th NOI and jumped right to the heart of the matter: namely, what can, or should, the FCC do about the unmistakable fact that some folks don’t have broadband service?

The starting point of the 7th NOI branches off from the previous year’s effort, which was completed only last month with the release of the 2010 Sixth Broadband Deployment Report (6th Report). As my colleague Mitchell Lazarus reported, in the 6th Report the Commission redefined broadband as “a transmission service that actually enables an end user to download content at speeds of at least 4 megabits per second (Mbps) and to upload content at speeds of at least 1 Mbps . . .”

The FCC already knows that, under this new definition, somewhere between 14 million and 24 million Americans are unserved by broadband. It also knows that areas of low population density and low income are often the last to receive service, whether it is cable or broadband or anything else. With that in mind, the crux of the 7th NOI lies in the FCC’s comment: “Should we consider affordability as a component of broadband availability?” The Commission appears to be asking whether broadband should still be deemed “available” if a provider offers it, but at too high a price for local residents to manage.

Tags: Broadcast, Cellular, Deadlines, Internet, NBP, National Broadband Plan, Seventh Broadband Deployment Notice of Inquiry, Sixth Broadband Deployment Report, Wireless Telephony

H.R. 5828: USF Reform Proposed In House

Posted on August 5, 2010 by Christine E. Goepp

Boucher bill boosts boatloads of big bucks for broadband build-out in boondocks

One more element has been added to the full-court governmental press aimed at extending broadband to as many people as possible: a bill recently introduced in the House would reform the 13-year-old, multi-billion dollar Universal Service Fund (USF). The proposal would (among other things) explicitly declare high-speed broadband to be a “universal service” and, therefore, eligible for subsidization from the USF – thus freeing up boatloads of big bucks for broadband build-out in the boondocks. Dubbed the “Universal Service Reform Act of 2010”, the bill is a bipartisan effort sponsored by Reps. Rick Boucher (D-VA) and Lee Terry (R-NE).

The USF was created by the 1996 Telecom Act, but its roots go deeper than that – back at least to 1934, when the FCC was born. The U.S. has sought to assure that every American has access to essential telecommunications services. Historically, such services have entailed mainly standard old telephone service. Putting the consumer’s money where the government’s mouth is, the 1996 Act provided for the establishment of a fund (the USF) to be used to subsidize the provision of affordable telecommunications services in certain circumstances.

USF subsidies go to: (a) “high cost” areas, mainly rural and sparsely-populated in nature, where delivery of service could otherwise be prohibitively expensive; (b) low income consumers in need of basic local phone service; (c) rural health care providers for both telecom and Internet services; and (d) schools and libraries, to assure access to various telecommunications services. Subsidies for each of these groups are managed by separate divisions within the Universal Service Administrative Company, the non-profit corporation established to oversee the day-to-day operation of the USF. (The USF gets its funds from telecommunications providers, who in turn get the funds from their customers.)

The Boucher-Terry bill focuses primarily on the USF program for delivering telecom services to “high cost” areas.

Tags: Cellular, HR 5828, Internet, Rep. Boucher, Rep. Terry, USAC, USF, Universal Service Administrative Company, Universal Service Fund, Wireless Telephony, Wireline Telephony

Most WCS/SDARS Rule Revisions Become Effective September 1

Posted on August 2, 2010 by Donald Evans

We have previously reported on the FCC’s monumental Report and Order (R&O), adopted last May, which balanced technical interference considerations between the Satellite Digital Audio Radio Service (SDARS) and the Wireless Communications Service (WCS). After several errata correcting issues in the FCC’s first release, the FCC has finally published the R&O in the Federal Register, which in turn establishes the effective date for some – but not all – of the revised rules. That effective date is September 1, 2010.

The effective date does not apply to all the changes. The FCC expressly excepted from that effective date several rules which require further review from the Office of Management and Budget (OMB) before they can go into effect. Most of the delayed rules relate to newly-revised licensing and notice requirements.

Of particular interest to WCS licensees are the new and very strict substantial service standards applicable to current and future WCS licensees. We described those standards, which are now set forth in Section 27.14(p) of the rules, in a recent article in our publication, FHH Telecom Law. The substantial service standards will become effective on September 1, but the certification requirement contained in Section 27.14(p)(7) – i.e., the obligation of WCS licensees to notify the FCC that they have complied with the standards – is not currently subject to that date. So WCS licensees must start the process of bringing themselves into compliance with the substantial service standards, but need not (at least for the time being) certify their compliance to the Commission. Revised Section 27.14(p) is worded to give licensees until March 4, 2013 – a date certain – to achieve the new substantial service benchmarks. Thus, the clock is already ticking with respect to compliance with those benchmarks.

Parties wishing to challenge the R&O now have until September 1 to file petitions for reconsideration. Petitions seeking reconsideration of at least several elements of the R&O, including the substantial service requirements, are expected.

Tags: Deadlines, Internet, SDARS, Satellite Digital Audio Radio Service, Satellite Radio, Section 27.14, Substantial service standards, WCS, Wireless Communications Service, Wireless Telephony

H.R. 5947: Another Order Of Carrot, Please - This Time Hold The Stick

Posted on August 1, 2010 by Harry Cole

The race is apparently on down on Capitol Hill to make sure that the FCC has the authority to share spectrum auction proceeds with licensees who are willing to give up the spectrum to be sold off, presumably for broadband purposes. Late last month we reported on S. 6310, the Kerry-Snowe bill introduced in the Senate, which includes a provision for proceeds sharing. Now, Reps. Boucher (D-VA) and Stearns (R-FL) have tossed in the Voluntary Incentive Auctions Act of 2010 (H.R. 5947) which would accomplish the same purpose. But, unlike the Kerry-Snowe bill, the Boucher-Stearns bill contains nothing about spectrum fees.

To the contrary, H.R. 5947 is short, sweet and to the point. It would give the FCC the authority (which it currently lacks) to share spectrum auction proceeds with any licensee who agrees “to participate in relinquishing voluntarily” its rights to the spectrum. While the bill leaves the precise mechanism for the sharing (as well as the amount or percentage of auction proceeds to be shared) to the Commission’s discretion, the Boucher-Stearns proposal makes one thing clear: any relinquishment of spectrum must be voluntary. The bill includes “voluntary” in its title, and then again in the heading of the new one-paragraph section that would be inserted into the Communications Act. And that paragraph includes “voluntarily” not once, but twice.

And just to make sure that there’s no doubt here, the bill contains a section that: (a) prohibits the FCC from “reclaiming” for auction purposes any TV spectrum “directly or indirectly on an involuntary basis” and (b) emphasizes that nothing in the bill “shall permit, or be construed as permitting” the FCC to do so.

Fleshing out just what he had in mind when he used the term “voluntary”, Rep. Boucher explained in his introductory statement that, in his view, imposition of “a spectrum fee that would make some licensees financially unable to keep their spectrum would make the spectrum surrender constructively involuntary and would be impermissible under the terms of our legislation.”

So it’s apparently not far-fetched to figure that a spectrum fee (such as the one proposed in the Kerry-Snowe bill in the Senate) might be used to squeeze broadcasters into handing over their spectrum. All the more reason to keep a careful watch on what goes on down on Capitol Hill in coming months.

Tags: Auction Revenue Sharing Plan, Broadcast, H.R. 5947, Incentive auction bill, Internet, NBP, National Broadband Plan, Representative Boucher, Representative Stearns, Repurposing of TV spectrum, S. 3610, Senator Kerry, Senator Snowe, Spectrum Measurement and Policy Reform Act, Spectrum fee, Voluntary Incentive Auctions Act of 2010, Wireless Telephony

Sometimes The FCC Says Please

Posted on July 31, 2010 by Mitchell Lazarus

FCC seeks voluntary cooperation in protecting airport weather radars from interference.

Having occasionally criticized the FCC for what might be perceived as over-enforcement – here, for instance, or here, or here – we welcome the chance to balance the record by crediting the Commission when it takes a kinder, gentler approach.

Not everyone gets Internet service through the phone company or cable company. Some subscribe to a wireless Internet service provider, or WISP, that installs a radio link to the user’s home or business. Many WISPs favor three particular frequency bands that do not require an FCC license, yet allow relatively high power operation that can reliably cover distances of several miles.

Seeking to add capacity, the FCC began a proceeding in 2003 to enlarge one of these bands, at 5 GHz. The frequencies it sought to add were occupied, as is most usable spectrum – in this case by federal government radars.

With the help of federal spectrum experts, the FCC wrote rules that allow WISPs and others to use the band, so long as their radios are capable of detecting and avoiding the radar signals. That took some time. Another delay ensued while the FCC, the government users, and the manufacturers worked together on test procedures to evaluate whether candidate devices in fact met the detect-and-avoid requirements. But eventually everything was in place. The FCC began issuing equipment certifications, and WISPs began offering service in the band.

But a problem arose.

Tags: 5 GHz, Enforcement Activities (Fines, Forfeitures, etc.), Internet, TDWR, Terminal Doppler Weather Radar, Unlicensed Operations and Emerging Technologies, WISP, Wireless Internet service provider

FCC Denies Broadband To Millions

Posted on July 22, 2010 by Mitchell Lazarus

The FCC’s new definition demoted many subscribers’ broadband services to something less.

“Broadband” is the big buzzword these days. Do we know what it means? Do we care?

The FCC cares. Until recently, its working definition was 200 kilobits per second, or roughly four times the maximum dial-up speed. That was passably fast when the Commission first specified it, back in 1999. But with the progress of technology, 200 kbps soon slipped behind the state of the art, and by the mid-2000’s had evolved into an object of derision among the technological cognoscenti.

Now the FCC has upped its standards. It newly defines broadband as a service that actually enables an end user to download at 4 Mbps and upload at 1 Mbps. The choice of 4 Mbps reflects an estimate of the speed needed to watch high-quality video (not high-definition) while others in the household simultaneously use email and browse the Internet. Advertised speeds “up to” so-and-so do not count. What matters is the speed actually delivered. A better definition would require that speed to be available during peak usage hours, but the FCC has not gone that far.

Another controversial criterion remains unchanged. While it now collects broadband deployment data at the more “granular” Census Tract level rather than by Zip Code, the FCC still aggregates the resulting data and assesses broadband availability by counties. More importantly, it still considers broadband to be available in a county even if only one percent of the households in that county are broadband subscribers. That criterion, combined with the new speed cut-off, relegates almost a third of U.S. counties to the “unserved” category. Compared with U.S. averages, those counties tend to have smaller populations, lower population densities, more rural area, and lower per capita incomes.

Redefining broadband has an interesting side effect. Two of the more common Internet delivery technologies, DSL and 3G, fall short of the new speed criterion. So do some cable and wireless services. Advertised 4G speeds straddle the line. In all, roughly half the broadband-using population, as of last week, woke up this week to find they no longer have broadband. The FCC has yet to coin a name for what they do have. No doubt the DSL and 3G marketing folks will come up with something. Of course, these users’ Internet experience did not change, only the name for it. But here in Washington, the names of things often matter more than the things themselves.

Outside Washington, though, people have more important things to worry about. The FCC's obsession with quantifying download speeds is not widely shared. In fact, most Americans have no idea what their Internet connection speed is. We are willing to bet they don't much care what the FCC calls it, either.

Tags: 200 kbps, 4 Mbps, Broadband, Cable, Definition of broadband, Internet

Cuba (Semi-)Libre? Sí, Pero . . .

Posted on July 17, 2010 by Christine E. Goepp

Despite U.S. efforts to ease entry into the Cuba market, no telecom gold rush has materialized – Por qué no?

It’s no secret that the Obama Administration would like to “reach out” to Cuba in the hope of bringing that island nation and the U.S. closer on a number of levels. One component of that effort involves increased telecommunications links between the two countries, as we reported last December. While it took the FCC a bit longer than other agencies to get with the program, by January the Commission had finally jumped on the bandwagon: as we reported then, the FCC eventually got around to relaxing its longstanding, restrictive policy on telecommunications to Cuba. Having discharged its duty, the Commission sat back and waited for a flood of international 214 applications which would lead to telecom rapprochement with the Cuban people.

This has manifestly failed to happen. Por qué?

A number of theories and observations were tossed around by a panel of experts at a recent brown bag lunch presented by the Federal Communications Bar Association. Here, we summarize some of the major factors that, according to the panelists, are affecting and will likely continue to affect U.S.-Cuba telecommunications ventures.

Tags: BIS, Bureau of Industry and Security, Cellular, Cuba, Gran Caribe, Internet, OFAC, Office of Foreign Assets Control, Wireless Telephony, Wireline Telephony

TV On The Move Means Less to Watch

Posted on July 15, 2010 by Peter Tannenwald

FCC waiver opens door for digital mobile TV receivers that won’t receive most stations.

A big chunk is missing from the armor of the All-Channel Receiver Act, the law that lets the FCC require every television receiving device to receive all TV channels. The FCC has adopted and enforced all-channel rules in the past, applying them not only to conventional TV sets but also to any device with a TV tuner – even VCRs and DVD players that have no video screen. The rules have required reception of not only all channel numbers but also all transmission formats. A half century ago, the FCC required all TVs to have UHF tuners to receive Channels 14-69. More recently, it insisted that all receivers include digital receiving capability, and handed out hefty fines for anyone trying to dump their inventory of analog-only TVs without adequately warning purchasers they were buying soon-to-be-obsolete hardware.

Today’s new video frontier is digital mobile TV that you can watch in the car, on the bus, or on your skateboard. [Blogmeister Disclaimer: The preceding sentence is not intended to promote watching TV while skateboarding, or driving, or on public transportation without adequate sound-proofing.] Manufacturers recently started producing mobile digital TV receivers that do not have analog tuners, because analog tuners mean a little more cost, more weight, and less battery life. Some versions cannot even receive conventional digital television, the kind we watch at home.

A small minority of TV stations add a special “mobile/hand-held” (M/H) bitstream to the standard digital signal for better reception in a mobile environment. Some of the new digital mobile TV devices require this bitstream to work – as a result, they can’t receive any analog or most digital TV stations.

In other words, the new devices with those limitations violate the standards imposed by the FCC under the All-Channel Receiver Act.

Realizing they might be on the precipice of catching severe regulatory flak, Dell and LG Electronics – both of whom happen to make the devices – ran to the FCC and asked for a quick waiver, so that they can move products that don’t receive all TV formats. Sure enough, they got what they wanted pretty quickly.

Tags: All-Channel Receiver Act, Analog tuners, Broadcast, Dell, Digital mobile TV, Digital mobile television, Enforcement Activities (Fines, Forfeitures, etc.), Internet, LG Electronics, Mobile/handheld, Unlicensed Operations and Emerging Technologies