Update: Net Neutrality Appeal Headed Back to D.C., For Sure

 We recently reported that the destination of the appeal of the FCC’s “Open Internet” decision might be up in the air because parties had sought review in three different U.S. Courts of Appeals. That would normally mean that a random drawing would have to be held to determine which Circuit would get the nod. But the FCC was taking the position that an earlier drawing – in which the D.C. Circuit had been selected – should control, even though the FCC was simultaneously arguing that the appeals that had triggered that earlier drawing were fatally premature and should be tossed.

Potential crisis averted! The two petitioners who went to non-D.C. Circuits have now advised their respective Circuits that they’re cool with having their appeals transferred to D.C. Those would be Alamo Broadband, Inc. (which filed in the Fifth Circuit) and a group of four petitioners led by Full Service Network (which filed in the Third Circuit). That appears to eliminate any lingering question of venue, so all concerned should now be able to focus on the merits.

Oh, wait, we forgot to mention the stay requests.

Continue Reading...

Quo Vadis, Net Neutrality?

Appeals, reconsiderations, judicial lotteries – there’s never a dull moment when it comes to net neutrality.

Just because the FCC finally released its behemoth Report and Order (R&O) in the net neutrality proceeding last month, don’t think that the fun and games are over. Not by a long shot.

Au contraire, the battles rage on … and they will soon be waged in two separate arenas, the FCC and one or another U.S. Court of Appeals. As might be expected, we’re already seeing new twists and turns that may further complicate an already complicated proceeding.

When the FCC releases a decision, folks unhappy with the decision generally have two obvious options: they may go back to the FCC and seek reconsideration, essentially trying to convince the Commission to change its mind; or they can run to an appropriate U.S. Court of Appeals, in which case they are asking the court to tell the FCC that its decision was in some way(s) flawed. In a rulemaking proceeding (like net neutrality), it’s not unusual for some disgruntled parties to take one approach which others take the second approach.

And that’s the way things seem to be shaping up here.

Continue Reading...

Sunrise for .SUCKS

The new top level domain that many love to hate is now available to registered trademark holders – but pretty soon it’ll be open to everybody else.

We told you to expect it, and now it’s happening: new generic Top Level Domains (gTLDs) are becoming available almost daily. (Fuzzy on gTLDs? Check out our post from last year for more background.) Now would be a good time for businesspeople to focus on the new gTLD that many love to hate – .SUCKS.

Dot-SUCKS is currently in its “Sunrise Period”. That’s important if you’ve got a registered trademark, because that means that you’ve only got until May 29, 2015 to take advantage of your rights as a registered trademark holder. The “Sunrise Period”, of course, is the time during which trademark owners who have registered their marks in ICANN’s Trademark Clearinghouse can get first dibs on registration of their mark in the .SUCKS domain. After the Sunrise Period closes (on May 29), registrations will be on a first-come/first-served basis and your trademark registration won’t necessarily help you out if somebody else – a competitor, a disgruntled former employee, an unsympathetic consumer advocacy group, etc., etc. – happens to get in line ahead of you.

So if you (a) hold a registered trademark and (b) want to keep anybody else from signing up for “[Your Trademark].SUCKS”, NOW is the time to act. Don’t worry, you won’t be the first. Far from it: a convenient ticker running on the website of Vox Populi Registry (the folks who run the .SUCKS registry) indicates that the following big names have already signed themselves up: XBOXLIVE, GUITARCENTER, CITIBANK, PLAYTEX, WALMART, UNDERARMOUR, VISA, TUPPERWARE, among lots of others.

Continue Reading...

The Net Neutrality Order Has Hit the Federal Register!

Get your calendars out. It’s time to calculate the date by which petitions for judicial review of the FCC’s Open Internet Report and Order (R&O) must be filed. That’s because the event that triggers that calculation – publication of the R&O in the Federal Register – has now occurred.

Petitions for review of this kind of FCC proceeding are due to be filed within 60 days of the release of the agency decision. The date of “release” is the date of Federal Register publication, i.e., April 13. That means that petitions for review of the R&O by a federal appeals court must be filed no later than June 12, 2015. BUT if you’ve got your heart set on having the appeal heard by a particular circuit, you should definitely NOT wait until the last minute.

That’s because, if petitions are filed by different parties in different circuits, a lottery is conducted by the Judicial Panel on Multidistrict Litigation (JPML) to choose one of those circuits to be the court which will hear the appeal. And to get your preferred circuit’s ball into the JPML drum from which the random selection will be made, you have to file your petition with your preferred circuit no later than April 23 (i.e., ten days after Federal Register publication). And that’s not all. Once your petition’s been filed, you have to have a paper copy of it, showing the dated “received” stamp from the court, delivered to the FCC’s Office of General Counsel – also no later than April 23. (Since that latter copy has got to be in the hands of the General Counsel within that 10 day period, hand-delivery is the recommended approach.)

Continue Reading...

Net Neutrality Update: D.C. Circuit Selected in Initial Circuit Lottery ... For Now

Panel picks despite possibly premature petitions.

The next time you find yourself at a roulette table in the Net Neutrality Casino, put all your chips on “D.C. Circuit”. It’s a good bet.

As readers may recall, back in 2011, the D.C. Circuit came out on top in a lottery conducted to determine which of six federal courts of appeals should hear appeals of the FCC’s Open Internet decision. And now, nearly four years later, lightning has struck again, with the prospect for a three-peat in the very near future.

The lottery involves the Judicial Panel on Multidistrict Litigation (JPML). The JPML decides which court gets to preside over appeals of FCC actions when different appellants file their petitions for review in different courts. When that happens, the competing circuits are tossed into a drum and one is picked by a JPML official (the “Random Selector”). All appeals of the FCC action in question are then consolidated before that one lucky court. (There are other niceties that have to be attended to in order to get your favorite circuit into the drawing, but you get the idea.)

The Commission released its much-anticipated Open Internet Report and Order on March 12, 2015. And on March 23, two parties filed for review: the United States Telecom Association in the D.C. Circuit, Alamo Broadband in the Fifth Circuit. Presumably each had its own reasons for choosing its particular circuit. The D.C. Circuit has not been particularly kind to the FCC on the net neutrality front the first two times that issue has been before that Circuit, which suggests that maybe it’s the place for petitioners to go. But the FCC did, in the eyes of many, make some headway the last time around. That might suggest that petitioners shouldn’t give D.C. a third shot. Why the Fifth Circuit? Who knows?

Continue Reading...

A First Look Inside the Net Neutrality Order

Our Internet guru digs deep into the Open Internet decision and comes up with … questions.

I recently posted an item summarizing the broad strokes of the FCC’s new “Open Internet” (a/k/a net neutrality) rules and policies. Since the full text of those rules, and the accompanying Report and Order (“R&O”), had not been released when my summary was prepared, I had to work from the then-available public notices from the FCC. Now that the R&O is out, I’ve had a chance to slog through its 360+ pages of dense text, which has led me to one obvious conclusion: the R&O raises as many questions as it attempts to answer. Let’s look at two of particular aspects of the FCC’s decision that give rise to some of those questions.

Extending full net neutrality obligations to mobile broadband: What’s the number?

Historically, when it came to broadband Internet service, FCC efforts to craft Open Internet rules and policies drew a clear line between (a) fixed/wireline providers and (b) mobile providers. Mobile providers were regulated far more lightly than their fixed/wireline counterparts because of a number of distinctions between the two. In particular, mobile broadband networks at the time featured less speed and less capacity, meaning that more intrusive traffic management was acceptable on the mobile side because it was, as a practical matter, necessary. Further, consumers enjoyed some measure of protection simply because there was competition among mobile providers.

Continue Reading...

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

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

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

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

The Net Neutrality Order Has Hit the Stands!

Next stop, some federal court of appeals?

If you were looking for something to do in your spare time for the next several weeks, we have some good news for you. The FCC has just released its “Report and Order on Remand, Declaratory Ruling, and Order” in the net neutrality proceeding. While early predictions had put the page count north of 330 pages, the final item weighs in at a surprisingly trim 282 pages – if you don’t count the two appendices and separate statements from each of the five Commissioners, all of which bring the total page count up to an even 400 pages. (If you had 400 pages in your office pool, congratulations!) So if you want to get ahead of the curve, you’d better get reading ASAP. We recommend that, before you start, you stock up on your stimulant of choice – it’s likely to be a long haul.

The rules adopted in the order won’t take effect until 60 days after the order makes it into the Federal Register, at the earliest. (Some of the new rules are “information collections” that will have to be run past the Office of Management and Budget for its OK first, which means that the effective date on those will likely lag behind the rest.) Also, for anybody who might be inclined to seek judicial review of this order – and, given the FCC’s 0-2 record in the D.C. Circuit so far, you’ve got to figure somebody’s going to – the 60-day period for filing your petition for review with the courts won’t start until Federal Register publication.

Note also that this is one of those proceedings that could go to any of the U.S. Courts of Appeals. If petitions for review are filed in different circuits within the first ten days of the 60-day filing window, they will be subject to a lottery to see which circuit is the lucky circuit. In order to get your preferred circuit into the drum for the drawing, within 10 days of “release” of the order (i.e., Federal Register publication) you’ll have to (a) file your petition for review and  (b) have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)

Check back here for updates.

Net Neutrality V.3: What We Know So Far

Pushed by losses in the courts, FCC relies on Title II, Section 706, Title III as authority for increased regulatory control of the Internet

[Blogmeister’s Note: While the FCC technically adopted its highly controversial “net neutrality” rules on February 26, the full text of those rules has yet to be released. We would have preferred to report on the actual rules, but since we don’t have them yet, we here in the CommLawBlog bunker present the following preliminary summary and analysis based on the official public notice issued by the Commission on February 26 (as well as the separate statements of the individual Commissioners). We plan to provide a detailed look at the rules and the accompanying Report and Order – said to exceed 300 pages in length – once they’re released.]

First things first. The new rules did not spring out of thin air. They merely constitute the latest episode in a years-long, intensely scrutinized, highly charged process. That process has already involved two FCC attempts to craft “Open Internet” rules or policies, both of which were largely gutted by the U.S. Court of Appeals for the D.C. Circuit. (For a refresher course on the last decade or so of net neutrality back-and-forth, check out my post from last year.) The new rules are presumably designed to achieve the goals of the earlier, failed, efforts to promote net neutrality while avoiding the flaws perceived by the court.

The FCC has reclassified broadband Internet access as a Title II “telecommunications service” while also relying on other statutory provisions to bolster Internet regulation.   

After the enactment of the Telecommunications Act of 1996, the FCC recognized two separate regulatory classifications: “telecommunications services” and “information services”. Think of it as the distinction between the transmission of content (i.e., “telecommunications service”) and the processing or provision of content (i.e., “information service”). Services falling into the former category were subject to rigorous regulation under Title II of the Communications Act. That meant that they were regulated as “common carriers”, i.e., much like railroads and other monopolies as far back as the 19th century. Services falling under the “information services” rubric, on the other hand, were largely unregulated.

While that distinction worked reasonably well in the pre-broadband days, things got muddy as broadband took over. In the early 2000’s the Commission declared all components of broadband Internet service – transport as well as content provision – to be an information service, and thus free from regulation, and particularly Title II regulation. But that severely limited the FCC’s ability to regulate various aspects of broadband service that it eventually wanted to regulate. When the FCC tried to impose regulation – claiming statutory authority under Section 706, a provision (codified as 47 U.S.C. §1302) that authorizes the Commission to “encourage” the widespread deployment of broadband access – the courts concluded that Section 706 does not provide the necessary authority.

The FCC’s latest net neutrality decision is a direct response.

Continue Reading...

Is There a Geofencing Exemption from Digital Performance Royalties? Concentrate and Ask Again

VerStandig lawsuit tossed on technicalities.

Will geofencing really provide webcasting broadcasters a shield that they can deploy against royalty claims? While that question was raised in a lawsuit last spring, it won’t be getting answered soon: the case has been dismissed … for the time being, at least. Thanks to considerations that many may view as “technicalities”, U.S. District Judge Michael F. Urbanski tossed the suit filed last April by Verstandig Broadcasting. But he did so “without prejudice”, meaning that the core question remains unanswered and may still be raised, and resolved, in a later suit.

As we have previously reported, “geofencing” is a technology that, in theory, permits a webcaster to limit access to its programming based on the physical location of the computers receiving the webcast. It works by checking the “receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses”.

Why would that give a webcasting broadcaster a way around webcaster royalties?

Continue Reading...

Marriott Checks Out of Declaratory Ruling/Rulemaking Proceeding

Prudent network management or Wi-Fi jamming? The question has been taken off the table … for now.

Last year we reported on a couple of interactions between the FCC and the well-known hotelier, the Marriott Corporation. The news started inauspiciously for Marriott when the Commission wrapped up an investigation (started in 2013) by spanking Marriott with a $600,000 civil penalty. The FCC determined that Marriott had used “containment capability” to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel’s Wi-Fi system in favor of their own DIY hotspots.

Presumably prodded by that investigation, Marriott (joined by some hotel friends) filed a request for declaratory ruling (or, in the alternative, for rulemaking), essentially asking for a determination that what Marriott had done really was OK. (Specifically, Marriott was asking the Commission to hold that a network operator may “mitigate” threats to the operator’s network, even when doing so results in interference to guests’ WiFi hotspots.)

The FCC dutifully announced the filing of the request for declaratory ruling and invited comments about it. But a month later, it also issued an “Enforcement Advisory” alerting one and all to the fact that preventing one’s Wi-Fi enabled devices from connecting to the Internet constitutes prohibited “jamming”. And a month later, out came another “Enforcement Advisory”. This one was even more pointed. Referring to “a disturbing trend in which hotels and other commercial establishments block wireless consumers from using their own personal Wi-Fi hotspots on the commercial establishment’s premises”, the advisory declared flatly that “Wi-Fi blocking violates Section 333 of the Communications Act, as amended.”

Not surprisingly, Marriott (and the other requesters) have now withdrawn their request for declaratory ruling (and the FCC has lost no time in officially bidding it adieu).

Continue Reading...

Update: Comment Deadlines Extended in MVPD-Redefinition Proceeding

Last month we reported on the FCC’s proposal to redefine the MVPD universe  to include services “untethered” from any infrastructure-based definition – in other words, to include Internet-delivered, “over-the-top” services. The Media Bureau has now extended the comment deadlines in that proceeding. As a result, comments are now due by March 3, 2015 and reply comments by March 18. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-261.

Don't Look Now, But the FCC Took Your Broadband Away

New definition denies “broadband” service to millions of Americans.

The FCC has taken broadband away from millions of American households. Sure, their connections still work fine. Their speed is unchanged.

But the service all those people have no longer counts as broadband.

That’s because the FCC has redefined its criteria for “advanced telecommunications capability” – what the rest of us call broadband – increasing them from the previous levels of 4 Mbps download and 1 Mbps upload to 25 Mbps and 3 Mbps, respectively.

The increase, the first since 2010, is meant to reflect changes in how people use their Internet connections. Much of that change can be summed up in one word: Netflix. The growing popularity of streaming TV content and movies, particularly in high definition, has not only strained Internet facilities nationwide but also changed consumers’ expectations as to what constitutes acceptable Internet service. Other streaming services, like Amazon and Hulu, add to the demand for high bit rates; their numbers are likely to swell if the FCC opts to treat Internet-delivered program services as MVPDs. These changes will accelerate as more households acquire ultra-high-definition (4K) TVs and begin downloading the higher-bandwidth data streams they require.

At the same time, most people don’t actually care about their numerical data speed, or whether it qualifies as broadband. But they do care – a lot – when their movies pixelate and freeze due to insufficient capacity at the Internet service provider. The new definition means that people receiving “broadband” service (as newly redefined) should not experience these difficulties as often.

Continue Reading...

Incentive Auction Inquiry: Wide Range of Technical Questions Out for Comment

FCC tries to tie down crucial elements of underlying auction design, including definitions of “clearing targets”, “spectrum impairments”

While the schedule may have slipped some, the Incentive Auction is still on its way. And even if the Auction may not start until sometime in 2016 (at least according to the current thinking), the Commission is facing – now – the monumental task of working out the myriad details that will govern the auction process. To that end, last month the FCC invited comment on a mind-numbing array of highly technical questions about both the reverse and forward components of the Incentive Auction. We’ll summarize a few of the highlights concerning the reverse auction. (And let’s be clear, this is just a summary of about 80 pages – i.e., half of the 160+-page request for comments – of densely-packed Commission-ese.) We’ll address forward auction highlights in a separate post. 

Setting the Clearing Target and Impairment, Categories of Licenses 

The principal goal of the reverse auction is to clear UHF spectrum of current TV broadcast licensees in order to make that spectrum available to wireless operators. A couple of years ago, the Commission was hoping to be able to clear a nationwide “clean swath” of spectrum amounting to as much as 126 MHz. The thought was that the reverse auction software could be set up to use that level as a starting point from which the on-going reverse auction calculations would be based. In other words, unless a set of particular reverse auction deals would clear that pre-identified amount of spectrum, those deals would be non-starters.

The FCC now seems to be accepting the reality that using a fixed 126 MHz starting point (or even some lower level, like 108 MHz) might be a tad ambitious because of various practical constraints (for example, border interference considerations). As a result, it is now proposing an approach that would rely on a dynamic, rather than static, clearing target concept. The target would be the highest clearing target possible from among the available options depending on broadcaster participation in the reverse auction. But the Commission makes clear that it would like to hear from commenters relative to the notion of omitting any initial clearing targets.

Continue Reading...

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

Plus ça change, plus c’est la même chose - If you’re a webcaster, you’ve got until February 2 to wrap up your annual SoundExchange homework. 

Sigh. Every year brings us another year closer to death. It sure feels that way as we do our Webcaster Wake-Up Call for 2015 – the last year for the rates and terms set in the Webcasting III decision. (The rates and terms that will govern for the next five-year term, i.e., 2016-2020, will be set by the Copyright Royalty Board in the Webcasting IV proceeding it cranked up last year and is still pending.)

Since these rates and terms have been in existence for almost five years, I’m running out of ways to cleverly remind those engaged in non-interactive webcasting about their filing and payment obligations because, well, nothing has changed.

But even if the underlying substance hasn’t changed, I can still spiff it up with a new presentation, one that might help readers navigate the SoundExchange trails a bit more easily. So as we say an early goodbye to Webcasting III (though we didn’t think so, we may yet miss you!) and look forward (or not) to whatever the CRB may do to us in Webcasting IV, here’s a chart that provides about as stripped down a reminder as you can get of the various SoundExchange options.

Before you test-drive the chart, though, keep a couple of things in mind:

Continue Reading...

Proposed MVPD Redefinition Out for Comment

FCC looks to open ranks of MVPDs to Internet-delivered services – a move that could save what’s left of Aereo

It looks like the universe of multichannel video programming distributors (MVPDs) is going to be expanding considerably. Previously populated by the likes of cable, MMDS and broadcast satellite operators, the MVPD universe is set to be redefined to include services “untethered” from any infrastructure-based definition … if, that is, a proposal laid out in a Notice of Proposed Rulemaking (NPRM) last month (and just published in the Federal Register) takes hold. The result should expand consumer options for video program service, and might even revivify whatever may be left of Aereo once Aereo exits the bankruptcy process. And even if Aereo doesn’t survive, we can look for new Aereo-like services.

The proposed redefinition of what it means to be an MVPD is part of the Commission’s overall effort to encourage innovation and serve the “pro-consumer values embodied in MVPD regulation”. It’s also one more reflection of the FCC’s embrace of the technology transition – from old-fashioned, relatively inefficient analog service to digital, Internet protocol (IP) delivery – that is sweeping virtually all aspects of U.S. communications.

The Communications Act defines MVPD as a person (or entity) who “makes available for purchase, by subscribers or customers, multiple channels of video programming.” The Act cites some examples – “cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor” – but makes clear that those are not the only possible MVPDs. So the FCC appears to have some latitude when it comes to filling in the blanks Congress left.

And that’s what it’s now trying to do.

Continue Reading...

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

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

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

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

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

Comment Deadlines Set in IP Transition Proceeding

Early last month we reported that the FCC is seeking input on various ways in which the transition from the legacy copper network to Internet protocol (IP) technology will affect consumers and competitive providers. If you’re planning on tossing in your two cents’ worth, you now know the deadlines by which you’ll have to do so, because the FCC’s Notice of Proposed Rulemaking has now made it into the Federal Register: comments are due by February 5, 2015, and replies by March 9. Comments are replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 14-174, 13-5, 05-25, RM-11358 and RM-10593 (use the “Add another proceeding” button to get them all in).

The IP Transition: FCC Asks Practical Questions About Copper Retirement

NPRM seeks to address effects of discontinuance of copper-based services on consumers, competition.

As many readers doubtless know (and as we have previously reported), the IP transition is underway: telecom carriers are shifting away from time division multiplex (TDM) technology using traditional copper wires; instead, they are embracing Internet protocol (IP) technology using optical fiber and coaxial cable facilities. This shift will implicate a wide range of regulatory considerations which the FCC is already looking into. It will also affect consumers and competitive telecommunications providers who are used to the TDM/copper wire way of life.

In a Notice of Proposed Rulemaking and Declaratory Order (NPRM/DO), the Commission has requested comments on three particular ways in which the transition will affect consumers and competitive providers.

Back-up Power. The legacy copper network is powered from the telephone company central office, where back-up generators are usually available when commercial power fails. Because consumers don’t need to provide their own electricity to power their landline phones, the phones usually work during a power outage as long as the phone wires on the street haven’t been knocked down. But when phone service is Internet-based and provided by cable or fiber, power does not come from the central office – meaning that, if a household relying on IP/non-copper telephone service loses power, its phones go dead unless some back-up power system is in place in the consumer’s home or office.

Continue Reading...

Marriott Wants FCC Guidance on How Far Venues Can Go to Control Their Wi-Fi Networks

Petition for rulemaking follows $600,000 consent decree. Hotels, convention centers, universities, hospitals among those potentially affected.

Last month we reported that the FCC had whacked Marriott Corporation for a cool $600,000 for messing with guests’ Wi-Fi hotspots. (The hotelier had prevented guests at its Opryland resort from using their own hotspots by transmitting disabling signals to private hotspots, forcing them to pay what the FCC felt were exorbitant rates for the resort’s own Wi-Fi service.) The FCC’s theory was that Marriott was violating Section 333 of the Communications Act, which bars interference with lawful communications.

While Marriott appeared to have accepted its come-uppance willingly (by signing onto a Consent Decree), it turns out there was more to the story. While the consent decree was being negotiated, Marriott mustered some reinforcements and took the offensive. Last August, joined by the American Hospitality and Lodging Association and Ryman Hospital Properties, Marriott filed a Petition for Declaratory Ruling or, in the Alternative, for Rulemaking asking the FCC to clarify exactly what operators of large venues may do to protect the security and quality of their own Wi-Fi networks. The petition was filed on August 25, 2014, but it took the FCC nearly three months to invite preliminary comments on it. If you’ve got something to say about this, you’ve got until December 19, 2014 to do so.

The petition raises all kinds of alarms about what will happen if the FCC decides that unlimited operation of private Wi-Fi hotspots must be permitted, even on private property. For example, Bad Guys could set up a private hotspot with the same SSID (network name) used by a hotel network. With that, they could grab traffic from hotel guests and exhibitors who think, wrongly, that they’re attaching to the hotel’s network. From there, it’s a snap for the Bad Guys to snag commercial information, including credit card numbers.

Continue Reading...

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

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

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

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

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

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

More on Getting Sued For Playing the Oldies

Sirius XM loses another ruling in California litigation about digital performance of pre-1972 recordings.

As I reported in September, Sirius XM (and, by extension, just about any other provider of streamed digital music) suffered a setback in a Federal District Court in California when the judge there ruled that performers have an exclusive public performance right to music they recorded prior to February 15, 1972. As it turns out, the news got worse for Sirius XM a couple of weeks later, when a California State Superior Court judge came down largely the same way.

As a result, Sirius XM, Pandora and other such services will likely be looking at a lot more liability for infringements as more pre-1972 artists join in the class action suit started by Flo and Eddie in California. While the outcome of the California end of that litigation doesn’t seem to be in much doubt – which is bad news for Sirius XM et al. – the chances of similar outcomes in other states is still up in the air, at least for the moment. Also up in the air: possible Congressional reaction.

For background on the issue of digital performance rights for pre-February, 1972 recordings, check out my earlier post about the Flo and Eddie case.

The more recent case doesn’t involve iconic individuals (like Flo and Eddie) as plaintiffs; it involves iconic record labels as plaintiffs.

Continue Reading...

Spectrum Auction Recon Update: Corrected Reply Deadline Announced

Last week we reported on the establishment of opposition and reply deadlines with respect to a couple dozen or so petitions seeking reconsideration of the Commission’s spectrum auction Report and Order. According to a follow-up notice in the Federal Register, it turns out that the reply deadline announced by the Commission last week was off by a few days. If you want to file a reply to any oppositions to the recon petitions, you will have until November 24, 2014. That gives you an extra weekend – lucky you!

Just in Time for Halloween: Zombie Aereo!

Preliminary injunction kills Aereo’s “live” retransmissions, but leaves it partly alive and still shuffling

It’s still alive!!!

Given up for dead by many, our old pal Aereo has managed to sidestep the Grim Reaper yet again. (Rule No. 2 in Zombieland: Always double tap.) But just barely, and its future prospects are not good.

We’ve already covered Aereo’s arc from Nothing to Big Deal to, well, whatever it is now that Judge Alison Nathan has enjoined it from doing some, but not all, of the things it was originally set up to do. To recap briefly for newcomers, Aereo marketed itself as a way to watch over-the-air television, live or recorded, through Internet-connected devices. It rolled its new service out in New York in 2012 and was immediately sued by broadcasters who insisted that Aereo’s system infringed on their copyrights. After losing three rounds in the Second Circuit, the broadcasters finally prevailed in the Supreme Court, which concluded that, to the extent Aereo offered effectively real-time retransmission of over-the-air programming, it was indeed infringing. The Supremes then sent the case back down to the trial court (Judge Nathan presiding) to decide what to do with Aereo.

And now we know.

Continue Reading...

Response Dates Set for Spectrum Auction Recons

Meanwhile, back at the ranch …

While the NAB and Sinclair press their appeal of the Commission’s Incentive Spectrum Auction Report and Order (R&O), a number of other folks have expressed their discontent with various aspects of the R&O in petitions for reconsideration that the FCC will have to address and resolve. A list of those petitions has been published in the Federal Register. That notice sets the deadlines for oppositions and replies.  Oppositions to any or all of these petitions must be filed by November 12, 2014; replies to any oppositions are due by November 21.

More than 30 separate petitions have been filed on behalf of:

  • Abacus Television
  • Artemis Networks, LLC
  • GE Healthcare
  • Competitive Carriers Association
  • Advanced Television Broadcasting Alliance
  • T-Mobile USA, Inc.
  • Beach TV Properties, Inc.
  • Free Access & Broadcast Telemedia, LLC
  • Bonton Media Group, Inc./Raycom Media, Inc.
  • Block Communications, Inc./FBC Television Affiliates Association,
  • Gannett Co., Inc./Graham Media Group/ICA Broadcasting
  • Qualcomm Incorporated
  • CBS Television Network Affiliates Association/NBC Television Affiliates/ABC Television Affiliates Associates Association/FBC Television Affiliates Association
  • Cohen, Dippell and Everist, P.C.
  • the American Society for Healthcare Engineering of the American Hospital Association (WMTS Coalition)
  • Journal Broadcast Corporation
  • NBC Telemundo License LLC
  • Radio Television Digital News Association
  • LPTV Spectrum Rights Coalition
  • Sennheiser Electronic Corporation
  • the Dispatching Printing Company
  • Media General, Inc.
  • the Videohouse
  • Public Broadcasting Service, Inc./Association of Public Television Stations/Corporation for Public Broadcasting
  • American Legacy Foundation
  • Signal Above, LLC
  • the Walt Disney Company
  • International Broadcasting Network
  • U.S. Television, LLC
  • Mako Communications, LLC.
  • Expanding Opportunities for Broadcasters Coalition

You can take a look at the various petitions on ECFS – just go to the ECFS Search page and enter “12-268” in the “Proceeding Number” box and, in the “Type of Filing” box in the “Advanced Options” sections, select “Petition for Reconsideration from the drop-down menu. (Note that the list in the Federal Register does not correspond exactly to the petitions available on ECFS, but it’s reasonably close. One apparent omission: When we performed the ECFS search, it turned up a petition filed on behalf of Sprint that isn’t listed in the Federal Register notice.)

After the FCC has ruled on these petitions, interested parties will have the opportunity to seek judicial review of the FCC's reconsideration order. If (as may reasonably be expected) this leads to more appeals on the spectrum auction front, there's no telling what impact that might have on the start date of the auctions. As we reported last week, the anticipated start has already moved from 2015 to "early 2016" because of (among other things) the already-pending NAB and Sinclair appeals.

Check back here for updates.

Update: Anticipated Spectrum Auction Date Pushed Back

If you picked “mid-2015” in your office pool for the date the FCC’s incentive spectrum auction would be held, we’ve got some bad news for you. While that was probably a pretty good bet up to now (since Commission officials have tenaciously stuck with the “mid-2015” date for some time), it’s not looking so good anymore. According to an item just posted on the FCC’s blog, the current target date is “early 2016”.

Gary Epstein, Chair of the Commission’s Spectrum Auction Task Force, alluding to “undeniable impediments” in the auction’s path, has this to say:

As Chairman Wheeler indicated several weeks ago, the court challenges to the auction rules by some broadcasters have introduced uncertainty.  Earlier this week, the court issued a briefing schedule in which the final briefs are not due until late January 2015.  Oral arguments will follow at a later date yet to be determined, with a decision not likely until mid-2015.  We are confident we will prevail in court, but given the reality of that schedule, the complexity of designing and implementing the auction, and the need for all auction participants to have certainty well in advance of the auction, we now anticipate accepting applications for the auction in the fall of 2015 and starting the auction in early 2016. Despite this brief delay, we remain focused on the path to successfully implementing the incentive auction. [Emphasis added]

With briefing wrapping up very late in January, the “court challenges” mentioned – one from the NAB, the other from Sinclair – probably won’t be argued until mid- to late spring, 2015. In our experience, the D.C. Circuit usually takes at least two-three months following oral argument to crank out a decision on relatively easy cases. More complex cases can take significantly longer. (Extreme example: One of my colleagues once had to wait more than three years for a decision following oral argument.)

Continue Reading...

Marriott Whacked for $600,000 for War on Rogue Wi-Fi Hotspots

Enforcement Bureau stretches meaning of “cause interference to” in order to reach the right result.

The Enforcement Bureau has struck a blow for those who prefer to use smartphones to set up their own personal mobile hotspots when they’re on the go – thereby avoiding the pricey wireless Internet access offered by various places, like hotels. In an Order and related Consent Decree, the Bureau has spanked the Marriott Corporation with a $600,000 “civil penalty” for using “containment capability” to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel’s Wi-Fi system in favor of their own DIY hotspots.

To get to that result, though, the Bureau had to stretch the conventional definition of “interference to radio communications”.

It is, of course, well-known that many smartphone users can use their handsets as mobile hotspots to connect their laptops, tablets, and other Wi-Fi enabled devices to the Internet. When, as occasionally happens, that doesn’t work, users usually chalk it up to network congestion, or to the data network management practices (read – throttling) of their wireless carriers.

Turns out there may be other forces conspiring against the mobile hotspot user.

Continue Reading...

Regulating the Internet "Like a Utility" Won't Yield an Open Internet - Unless ...

Simply imposing Title II won’t work.

[Blogmeister’s Reminder: The views here are those of the author, not necessarily shared by FHH colleagues and clients. Responses are welcome.]

Many of the three million (or so) comments in the net neutrality proceeding, based on our own small sample, urge the FCC to impose net neutrality rules by regulating the Internet “like a utility.”

Sorry. It won’t work.

“Regulating like a utility” means bringing Internet service providers (ISPs) under Title II of the Communications Act, which is the statutory basis for common carrier regulation. Title II prohibits “unjust or unreasonable discrimination.” Preventing discrimination is also the purpose of net neutrality. That looks like a good fit. Why isn’t it enough?

Congress enacted Title II in 1934 primarily to regulate telephone service. Telephones of that era delivered exactly one functionality: real-time voice transmission. Non-discrimination meant that everybody got a dial tone on equal terms. That was easy to regulate. Enforcement was easy, too, since one company handled local service in nearly every city and town, and was also the country’s only long-distance provider.

The Internet is vastly more complicated, with astronomical numbers of providers and services. A simple rule saying nothing more than ISPs “shall not discriminate” would be meaningless. An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is “fair”. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.

Continue Reading...

New Fast Lane in Open Internet Proceeding

FCC provides “bulk upload” option for adding even more comments to the million-plus already on file – now who’s going to read them all?

When last we took a sounding of the rising floodwaters of net neutrality comments, they were 1.1 million deep and more were pouring in. That was a month ago and, we’re pleased to report, the levees have apparently held. At least we assume that to be the case because the FCC has just announced, in effect, that it’s opening the dam upstream in an apparent effort to increase the flow of incoming comments.

In a blog post on the FCC’s website, the Commission’s Chief Information Officer advises that

[i]n the Commission’s embrace of Open Data and a commitment to openness and transparency throughout the Open Internet proceedings, the FCC is making available a Comma Separated Values (CSV) file for bulk upload of comments given the exceptional public interest.

If we’re understanding that correctly, the Commission is offering an express lane for the simultaneous submission of multiple comments (i.e., “bulk uploads”) to get them in the door even faster than might otherwise be the case. The need for that express lane isn’t immediately obvious: a quick spot-check in ECFS indicates that, since mid-August, comments have been flowing in smoothly, generally several thousand (occasionally more than 10,000) a day. With bulk uploads now available, we can look for that to increase.

But necessary or not, this development brings us back to something we have addressed before.

Continue Reading...

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

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

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

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

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

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

NLRB Panel Likes "Likes"

To the likely dislike of companies who aren’t careful about their social media policies, NLRB holds Facebook “liking” can be “concerted protected activity”.

I’ve written a few pieces about the National Labor Relations Board (NLRB) and social media. For readers with short memories, the NLRB has held that, under the National Labor Relations Act (NLRA), an employee can speak out on a personal Facebook, Twitter, LinkedIn or any other personal social media account without fear of retaliatory discipline if the posting is “concerted protected activity” that is “not opprobrious” in nature. The term “not opprobrious” in this context is just a fancy way of saying “be civil about it”: don’t break laws, don’t harass others, don’t defame – just be professional.

And “concerted protected activity”? To fit into that protected category, the employee’s communications must be seeking to improve or otherwise affect the conditions of his or her employment. Also, they must be made with a clear intention to get others on board (as opposed to just venting, airing grievances, etc).   

I have previously noted that the NLRB’s policy accords employees rather broad freedom from disciplinary action while it imposes on employers wishing to impose some limits on their employees the obligation to write clear and somewhat narrow social media policies. But the cases we have looked at so far have involved fully articulated expressions by the employee.

A new NLRB decision takes us into new territory: Can simply hitting “Like” be considered “concerted protected activity”?

Continue Reading...

Update: Reply Comment Deadline Extended in Net Neutrality Proceeding

The comment total is already past 1,100,000, but who’s counting?

Really, would it be possible to get too many net neutrality comments? As if.

So we’re pleased to report that the FCC has extended the deadline for filing reply comments by five days. The new deadline is September 15, 2014.

The original reply deadline was September 10, but the Commission was concerned because, as we all remember, the initial comment deadline got extended from July 15 to July 18 (because the Commission’s online filing system was, um, choking a bit on the volume of comments being filed). Since initial commenters got an extra three days, figured the FCC, reply commenters should get the same. And since a three-day extension would plunk the deadline onto a Saturday, everybody gets an extra two days, taking the deadline to the following Monday.

So if you were sweating about getting your reply wrapped up in time, you can totally chill.

Continue Reading...

Performance Royalties: The State of Play

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

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

Continue Reading...

.media is The Message

Calling all media-related folks interested in getting in on the ground floor of a new opportunity. The Top Level Domain (TLD) “.media” is now available. Come one, come all. For the measly sum of $39.99, you could lay claim to your own private piece of the Internet labeled “[YOURNAME].media”. (That assumes, of course, that that particular domain name hasn’t already been scooped up.) Check with your favorite registrar to see if they’re offering “.media” registrations; if they’re not, we know for sure that GoDaddy is. We have previously written about the impending arrival of more than 1,000 new generic TLDs, so ideally readers are familiar with the lay of the land. (If not, check out the posts at this link.)

One in a Million: Coming Clean in the Net Neutrality Proceeding

Open Internet comments have passed the seven-figure mark, but one in particular sticks out.

Update: Word is that the total number of comments filed in the net neutrality proceeding leapt from around 650,000 the day before the original comment deadline, to more than 1,000,000 by the end of the extended comment period.

First, congrats to those of you who guessed right in your office’s over/under on the comment total – but don’t get too cocky. There are still a couple of months’ worth of reply comments yet to show up, so be sure to read the fine print on your internal office pool rules before you claim any prizes.

Second, with the new total, we have to revise the estimates we laid out in our earlier post. At that point, we estimated (based on then-available numbers) that, if 650,000 comments had been filed, one FCC staffmember doing nothing but net neutrality comment review for 52 40-hour weeks per year, and processing one comment every five minutes, would take more than 26 years to complete the job. With 1,000,000+ comments now in hand, let’s re-calculate. Under the conditions we are positing – and now also assuming that the hypothetical staffer would be willing to work beyond the usual retirement age – he or she would require 40 years to complete review of 1,000,000 comments.

And third, we want to highlight one particular submission which arrived in the FCC’s ECFS system on July 16. Filed by one Kurt Schaake (of Lawrence, Kansas), these comments consist, in toto, of a copy of the user instructions for a Whirlpool Dishwasher. True fact – you can find them for yourself by searching ECFS in Docket No. 14-28 (the Open Internet proceeding) or you can just click here to get there more quickly.

Continue Reading...

Aereo Loses First Round in Copyright Office, While Dish Wins its Next Round in the Ninth Circuit

More developments in the realm of Internet retransmission of OTA signals.

Aereo – the gift that keeps on giving, at least when it comes to blogworthy content. As we reported, after it got its clock cleaned at the Supreme Court, Aereo bounced back with Plan B, which amounted to declaring itself (a) a cable system and, thus, (b) eligible for the compulsory copyright license granted to cable systems. But you can’t just say “I’m a cable system” and expect anybody to believe you. So Aereo went ahead with some of the paperwork required of f’real cable operators; among other things, it filed a bunch (14, to be exact) of Statements of Accounts with the U.S. Copyright Office, along with some royalty and fee payments amounting to the princely sum of $5,310.74.

A nice gesture, but wouldn’t you know it, the Copyright Office (CO) was not inclined to play along with the gambit. In a brief letter dated July 16, 2014, the CO let Aereo know that, as far as the CO is concerned, Aereo is not a cable system entitled to the compulsory license. As it turns out, more than a decade ago the CO had concluded that “internet retransmission of broadcast television fall outside the scope” of the compulsory license. That’s bad news for Aereo, whose system is firmly – indeed, exclusively – based on Internet retransmission.

Continue Reading...

INCOMING! Commission's Net Neutrality Comment Conundrum

As comments pile up in the Open Internet proceeding, straining the FCC’s systems, a post on the Commission’s blog got us thinking about transparency.

On July 14, 2014 – the day before the original deadline for initial comments in the Open Internet (a/k/a Net Neutrality) proceeding – in the spirit of transparency the FCC’s Chief Information Officer took to the Commission’s blog to tout the agency’s ability to track the numbers of comments flooding in over the transom. According to a couple of files linked in his post, the Commission had received nearly 170,000 Net Neutrality comments submitted electronically through ECFS (the FCC's online filing system), and another 442,000 or so by email. Those numbers are a moving target, though, and the target is only moving up: according to a post on ArsTechnica, by 11:00 a.m. on July 15, the tally was up to about 670,000.

It will doubtless go well beyond that, once ECFS comes back to life. The ArsTechnica post indicates that ECFS had crashed; our own observations here in the CommLawBlog bunker lent credence to that report, although the FCC conceded only that the “overwhelming surge” in traffic has “ma[de] it difficult” for some folks to file. As a result, the deadline for filing Net Neutrality comments has been extended to “midnight Friday, July 18”. (BTW – we confirmed with the FCC that they mean 11:59 p.m. (ET) on July 18.)

Keeping track of the influx of comments is presumably useful at some level, and the FCC’s ability to do so – apparently even on an hour-by-hour basis – is to be commended. But that ability is of, at best, secondary interest. When Katrina struck New Orleans, local residents may have been interested in precisely how much water was coming over the levees, whether by the minute or the hour or the day. But they were certainly more interested in how that water, however much water there was, was going to be disposed of.

Which brings us to some back-of-the-hand calculations.

Continue Reading...

Update: Effective Date Set for Updated Spectrum Screen

Federal Register publication also establishes deadlines for reconsideration, appeal, of spectrum screen Report and Order.

CORRECTION!!! In this item as originally posted, we reported that the full text of the FCC’s spectrum incentive auction Report and Order, FCC 14-50, had been published in the Federal Register. That was incorrect. What appeared in the Federal Register was the related Report and Order, FCC 14-63, concerning the updated spectrum screens adopted in anticipation of the incentive auctions. We wrote about that latter order here. While the two orders are obviously related, they are also obviously separate and distinct, and – to put it bluntly – we messed up this time. While the deadline dates described in our original post are accurate, they apply only to the spectrum screen decision and not to the spectrum incentive auction Report and Order. We have revised the post accordingly. We apologize for this error.

Last June the Commission released its order adopting new spectrum screens in advance of the spectrum incentive auction. We reported on that order last month. The FCC’s spectrum screen Report and Order has now been published in the Federal Register. As a result, we now know that the rules adopted by the Commission are set to take effect on September 9, 2014.

Anyone who wants the FCC to rethink any part of the Report and Order has until Monday, August 11, 2014, to file for reconsideration. (The niceties of the recon drill may be found here.) Anyone who wants to take the matter straight to one of the courts of appeals has until September 9.

And anybody in that latter category who has his or her heart set on having the appeal heard by a particular Circuit will have to comply with the rules governing the judicial lottery procedures. Those rules kick in when petitions for review of a single order are filed in multiple Circuits. In that event, the determination of which Circuit gets to hear the appeal is made by lottery conducted by the Judicial Panel on Multidistrict Litigation. In order to get your preferred Circuit into the drum from which the lucky Circuit will ultimately be drawn, you have to file your petition for review within 10 days of July 11 (i.e., by July 21) and, also by July 21, you have to have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)

Upcoming Webinar: Paul Feldman on Net Neutrality

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

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

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

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

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

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

Now Available: The Incentive Auction Report and Order

The full Report and Order in the FCC’s incentive auction proceeding has finally been released. If you had 484 pages in the office pool relative to the document’s total length, you’re a winner. Ditto if you had 329 pages for the length of the report itself, sans appendices and separate statements. And if your office pool was truly hardcore, you may be pleased to know that there are a total of 2,279 footnotes.

All of which is to say that, while we will be reporting on exactly what the decision says, we won’t be reporting on it today. (The new rules won't take effect until 60 days after they get published in the Federal Register -- and even then, the "information collection" components of the rules will have to await OMB review thanks to the hilariously-named Paperwork Reduction Act.)

But since we recognize that there is intense interest in the incentive auction proceedings, we’re posting this notice that the order is now out. You can access it here. To help find your way through it, you might also want to take a look at the FCC’s public notice describing its action and/or the somewhat more detailed Staff Summary of the order.

And, of course, check back with us here at CommLawBlog.com for updates.

New Technologies Once Again Blurring the Lines of Copyright Law

[Blogmeister’s Note: The following article by Frank Montero appeared in Bloomberg BNA’s Telecommunications Law Resource Center. The folks at Bloomberg BNA have kindly given us permission to reprint it here.]

It seems like copyright law is always trying to catch up with new technology. That’s not a new phenomenon. Take the player piano and the 1908 Supreme Court case of White-Smith Music Publishing Co. v. Apollo Co., in which the high court ruled that manufacturers of music rolls for player pianos did not have to pay royalties to the composers.

The composers were understandably worried that the player piano – then a burgeoning new technology – would make sheet music (and, more importantly, the copyright royalties they earned from the sale of sheet music) obsolete. In response, Congress, in the Copyright Act of 1909, created the compulsory license, allowing anyone to copy a composer’s work without permission as long as they paid a predetermined license fee.

The same scenario is playing out today: New technological developments are outstripping decades-old copyright law, forcing changes in the law, challenging old models, and blurring long-established lines. The traditional “silo” mentality that addressed TV, radio, publishing, recording, cable – and now, the Internet – as separate and distinct areas cabined off from one another is eroding. Record companies are battling radio broadcasters. TV broadcasters are battling cable and satellite companies. Internet audio streamers are battling publishers. Publishers are battling record labels. Internet video streamers are battling Internet service providers.

A principal source of these issues: the Copyright Act’s definition of the “public performance” of copyrighted work.

Continue Reading...

Net Neutrality 2014: The Regulators Strike Back

Trying to meet conflicting demands of court, Congress and constituency, Chairman Wheeler is on the horns of a dilemma.

The FCC’s May, 2014 monthly meeting was not ordinary. Protestors camped outside the Commission’s headquarters and shouted slogans in its meeting room. Democratic Commissioners showed signs of open rebellion against their Chairman. Republican Commissioners stood in blunt opposition to the Chairman. And everyone, including the Chairman, urged fervently that “the future of the Internet” was at stake.

Against this backdrop, Chairman Wheeler announced the FCC’s latest proposal for Open Internet rules. Caught between the demands of his political constituency and legal requirements set by the U.S. Court of Appeals for the D.C. Circuit, he attempted to walk a narrow and difficult path.

And by a 3-2 vote (with two of the three Commissioners in the majority expressing serious reservations), the FCC followed the Chairman on that path: it adopted a Notice of Proposed Rulemaking (NPRM) soliciting comments on the latest approach to “net neutrality” regulation.

Highlights of the NPRM include proposals to:

Continue Reading...

They're Heeere! New gTLDs Are Now Available for Registration

Put your thinking caps on, review the ICANN list, and get started – NOW is the time.

We have previously alerted our readers to the impending arrival of new generic Top Level Domains (gTLDs) on the Internet and the opportunities that their arrival will be opening up. And now the time has come – or, at least, it has come for some new domains, with others to be rolling out periodically for the foreseeable future.

Anyone contemplating expansion of their Internet presence into any of the new gTLDs should already be regularly reviewing the website of the Internet Corporation for Assigned Names and Numbers (ICANN). That’s where ICANN lists the opening and closing dates for the various filing periods (e.g., Sunrise, Landrush, etc.) for each new gTLD as it becomes available.

We’ll be keeping an eye on the ICANN list as well, looking for new gTLDs that, in our purely subjective view, might have some particular interest for our readers. When those pop onto our radar screen, we’ll post about them here. This will be an ongoing process. There are still more than 1,500 gTLD applications working their way through the ICANN system, so attention must be paid to periodic developments for months, if not years, to come. 

This post – and the ones to follow – aren’t intended to substitute for readers doing their own research. Far from it. Rather, it’s one way for us to continue to poke, prod, cajole, wheedle, nudge and otherwise encourage folks to devote a bit of their own time and attention to the new gTLD universe and the potential it holds for them. Important disclaimer: We will not be reporting on each and every new gTLD that comes down the pike; rather, just the ones that catch our eye for one reason or another. So any reader looking for the perfect gTLD(s) should not be relying on us here to post all available gTLDs. (And we should probably also remind everybody to take a look at the Disclaimer that applies to all posts here on CommLawBlog.com.)

Continue Reading...

Update: Effective Date Announced for Internet-on-Airplanes Upgrade

Last month we reported that the FCC had decided to classify the relatively new Earth Stations Aboard Aircraft (ESAA) service as co-primary along with other fixed satellite services sharing the 14.0-14.5 GHz band. At the same time the Commission tweaked a couple of other ESAA-related rules. As we noted, the changes would not become effective until 30 days after they appear in the Federal Register. The clock on that has started to count down: the FCC’s decision has been published in the Federal Register and, as a result, the new rules will become effective on June 11, 2014.

An Internet-on-Airplanes Upgrade

FCC gives co-primary status to “Earth Stations Aboard Aircraft” uplinks.

The FCC has given in-flight Internet an upgrade.

Late in 2012, the FCC authorized use of earth stations installed on aircraft to communicate with Fixed-Satellite Service (FSS) spacecraft in geostationary orbits. Called “Earth Stations Aboard Aircraft” (ESAA), the service delivers wholesale Internet service to the airplane, where it gets parceled out to individual passengers via Wi-Fi.

Uplinks from the aircraft use the 14.0-14.5 GHz band, shared with (among others) the small VSAT terminals we often see on the roofs of gas stations and chain hotels. The FCC tentatively assigned ESAA secondary status, meaning that ESAA would have to (a) protect the VSATs and other primary users from interference, and (b) accept any interference from them. But the FCC stopped short of etching that decision in stone: a Notice of Proposed Rulemaking attached to the order asked whether the FCC should elevate ESAA to co-primary status.

The FCC has now made its decision: ESAA is co-primary. Other co-primary users and ESAA must all protect one other on equal terms.

The new order also makes a few adjustments in response to a petition for reconsideration. The rules will apply not only to aircraft operating within the United States, but also to U.S.-flagged aircraft anywhere in the world. The FCC clarified a technical provision requiring automatic shut-off if certain things go wrong, and one about the reliability of the mechanism that points the antenna at the satellite. The new rules wlll take effect 30 days after they get published in the Federal Register; check back here for updates.

Sure, these details are dull. But they make it possible to lean back at 35,000 feet and watch silly cat videos.

Aereo Update: Alito Back On The Case

In case you ever wondered whether there’s such a thing as “unrecusal” – and, frankly, we hadn’t – here’s the answer: yes. The Supreme Court has announced that Justice Alito, who had recused himself from any participation in any aspect of the Aereo case (which, we remind you, is set for oral argument next week), is no longer recused. The Supremes aren’t required to explain their recusals and, it appears, the same is true of unrecusals. Whatever the reason, with Alito back on board the full nine-member court is now set to hear the case. That eliminates the possibility of a 4-4 tie among the justices (which would have left the Second Circuit’s decision in place, albeit without any approval by the Court)

Reminder: Aereo Webinar Set for April 16

As we announced several days ago, we’ll be presenting a FREE webinar next Wednesday, April 16 (at 3:00 p.m.), on the Aereo case. The Supreme Court will be hearing arguments in the case on April 22, so our webinar – hosted by Kevin Goldberg and Harry Cole – will provide attendees a comprehensive overview of the history of the Aereo litigation leading up to the Supremes. The webinar is designed to provide background and perspective to help make sense of both the arguments before the Court and the speculation likely to follow the arguments.

While space is limited, we still have some capacity, but it will be filled on a first-come, first-served basis. If you want to get yourself up to speed on All Things Aereo in advance of the Supreme Court argument, here’s your chance. Just click on the “Register Now” button below and sign yourself up.

New gTLD's Are Knocking on the Door - Do You Know What to Do?

Hundreds of new generic Top Level Domains are about to hit the Internet. What do you need to worry about and how can you take advantage of the opportunity?

As we have previously reported, the Internet Corporation for Assigned Names and Numbers (ICANN) has for the past several years been busy readying a new batch of generic Top Level Domains (gTLDs) to unleash on the Internet community. In recent months, 175 new gTLDs – the cognoscenti just call them “the New G’s” – have successfully negotiated ICANN’s exhaustive review process. Soon we can expect to start seeing new domain names ending in “.SOLUTIONS”, or “.PHOTOS”, or “.FLORIST”, among others.

The New G's hold considerable promise but we suspect that many readers may not be fully aware of what the future has in store. To take advantage of the opportunities the New G’s present – and also to avoid potential problems – it’s important to know what could be coming down the line and how best to deal with it when, or preferably before, it gets here.

Let’s first look at the two Big Questions, and then delve into some of the underbrush to help you figure out how best to proceed.

Continue Reading...

Free Webinar on Aereo - April 16

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

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

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

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

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

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

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

Crash Course: The Potential Problem of "Name Collision" and What ICANN is Doing About It

Measures proposed to reduce risk of misrouting private email messages out onto the public Internet

As ICANN moves closer to authorizing a host of new generic Top Level Domains (gTLDs), concern has been expressed about the possible impact that at least some of those new gTLDs could have on at least some corporate network operators and Internet users. While ICANN believes it unlikely that significant numbers of such operators/users will be affected, it is proceeding cautiously.

The potential problem? “Name collision”.

What is “name collision”? In ICANN’s words,

A name collision occurs when an attempt to resolve a name that is used in a private name space (e.g., under a non-delegated Top Level Domain, or a short, unqualified name) results in a [Domain Name System (DNS)] query to the public DNS.

As ICANN consultants have described the problem, “Name collision creates ambiguity and instability, because apparently identical strings name different things in different contexts.” In their view, the consequences range from mere “user confusion” to far more dire possibilities, including “application failures, denial of service, or serious breaches of security”.

In more pedestrian terms, name collision can occur when a private network – say, a company’s internal email system – has been set up to interpret a particular term (or, in ICANN parlance, a “string”, like “.mail”) as referring to addresses strictly within that internal system. But if that particular term also happens to be a gTLD used across the Internet – like “.com”, “.edu”, “.org” or other familiar gTLD strings – then the address of email intended to be limited to the company’s internal system could be misread and the email instead routed to the broader Internet (i.e., the public DNS).

Obviously, that could have serious legal and/or economic consequences for the sender, especially if personal, confidential or proprietary financial information were to be misrouted and revealed to unintended recipients.

Continue Reading...

FCC Seeking Proposals for Rural Broadband Experiments

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

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

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

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

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

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

Continue Reading...

Aereo Update: Supreme Developments

With more than six weeks to go before the April 22 oral argument, the Aereo case in the Supreme Court is in what litigators refer to as the “briefing phase” – the various parties are busy preparing and submitting their written arguments to the Court. The broadcaster-petitioners have already filed their brief; Aereo’s is due shortly.

But newsworthy things are still happening. Indeed, despite the snow storm that shut down Washington, D.C. yesterday, there were two noteworthy developments in the Aereo case.

First and perhaps most important, the U.S. Department of Justice – through its principal appellate mouthpiece, the Solicitor General – weighed in with an amicus brief in support of the broadcaster-petitioners. This is Big News because the DOJ’s opinion tends to be taken very seriously by the Court. And the DOJ’s brief reads like a broadcaster’s dream. (You can read a copy of the brief, posted by Deadline.com, here – props to Deadline.com for tracking this down and getting it up on line so quickly.)

Check out DOJ’s summary of its own argument:

The proper resolution of this dispute is straightforward. Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas . . ., [Aereo] does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, [Aereo] operates an integrated systemi.e., a “device or process”—whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system [Aereo] uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content “to the public.” Like its competitors, [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies.

Additionally, anticipating Aereo’s argument that a decision in favor of the broadcasters here would seriously hamper the development of innovative new technologies (including, e.g., cloud computing services), the DOJ assures the Court that that is not the case:

Continue Reading...

FCC Requests Ideas for New Net Neutrality Effort

Effort follows recent loss in court.

You have to feel sorry for the FCC, trying to write net neutrality rules despite a court order that pretty much rules out “neutrality.”

A month after the D.C. Circuit rejected the FCC’s approach to net neutrality, the FCC has announced it will not appeal that decision. While three of the commissioners remain determined to craft some type of net neutrality constraints, the FCC has put out a curious announcement that sheds no light on what, if any, alternatives it may have in mind to address a problem the court just made a lot more difficult.

The sad part, though, is that the FCC’s dilemma is entirely self-imposed.

Back in the dial-up days, the FCC distinguished between transporting Internet content and providing that content. It regulated the transport component of Internet service as common carriage, while leaving the provision and processing of content unregulated.

With the advent of broadband, the FCC made a key change. It decided to treat the transport and provision components together as a single service, and deregulated all of it. Those rulings relinquished its common carrier authority over the transport component, a step that led directly to the D.C. Circuit’s striking down the FCC’s net neutrality rules.

Continue Reading...

Utah Judge to Aereo: Not in this Circuit!

As Supreme Court decision approaches, a U.S. District Judge in Utah has enjoined Aereo from rolling out its service in the Tenth Circuit.

Ten days ago we suggested that Aereo aficionados who can’t wait for the Big Show in the Supreme Court (oral argument April 22, decision likely before the end of June) might want to take a look at the U.S. District Court in Utah. That’s where the latest of the broadcasters’ copyright infringement suits brought against Aereo has been poking along.

And looky here. U.S. District Judge Dale Kimball has granted the broadcasters’ motion for a preliminary injunction! This marks the first time that Aereo has been on the wrong end of an injunction ruling; it should send a clear signal to one and all that Aereo may be in for some rough sledding ahead.

Judge Kimball’s decision reads like it was written by the broadcasters. Some sample bits and pieces: 

“The plain language of the 1976 Copyright Act support[s] Plaintiffs’ position.”

“Aereo’s retransmission of Plaintiffs’ copyrighted programs is indistinguishable from a cable company and falls squarely within the language of the Transmit Clause.”

There is “no basis in the language of the Transmit Clause or the relevant legislative history suggesting that technical details take precedence over functionality. In fact, such a focus runs contrary to the clear legislative history.”

And the bottom line?

Continue Reading...

Out for Comment: Globalstar Proposal to Expand ATC Operation

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

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

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

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

But there are some complications.

Continue Reading...

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

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

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

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

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

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

How and when that might happen is unclear.

Continue Reading...

Accessibility Rules Waived for Some E-Readers

FCC makes a nuanced call on accessibility requirements for devices having advanced but non-essential functions.

It’s not easy being the FCC. Just when you think you’ve managed to put various devices into their appropriate regulatory pigeonholes, somebody comes along to argue that some device ought to be excepted out of one pigeonhole and placed in another.

Case in point: e-readers like the Kindle and the Nook. The FCC requires that all Advanced Communications Services (ACS) – VoIP, email, Instant Messaging, SMS text messaging, video chat, and the like – and all devices used for ACS be accessible to individuals with disabilities.  Many, possibly most, e-readers include ACS capabilities, so they must be accessible to persons with disabilities, right?

Not necessarily.  That requirement may be waived if a device is “designed primarily” for other purposes. And now the FCC has decided that, at least for the time being, some e-readers will not be required to comply with the accessibility rules.

Specifically, for the next year (until January 28, 2015) certain of the ACS accessibility rules – in particular, Sections 14.20, 14.21 and 14.31 of the FCC’s rules – have been waived for “basic e-readers”. The universe of e-readers falling into that “basic” category consists of devices that: 

  1. have no LCD screen;
  2. have no camera;
  3. are not offered or shipped to consumers with built-in ACS client applications (and the manufacturer doesn’t develop such applications for the devices in question); and
  4. are marketed and promoted as reading devices without touting ACS capability.

How the FCC analyzed the issues and defined the boundaries and duration of the waiver show some elegant solutions to dealing with the complex and ever-changing world of consumer devices.

Continue Reading...

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

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

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

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

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

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

Continue Reading...

In the Wake of Verizon v. FCC: How the FCC Can Achieve Net Neutrality and Save the Internet

The FCC should do the right thing and fix its old mistake that led to the present situation.

[Blogmeister’s Note: This is an op-ed piece, emphasis on the “op”, or “opinion”, element. It reflects Mitchell’s personal assessment of net neutrality following the D.C. Circuit’s recent decision. The views expressed are the author’s; they do not represent the editorial views of CommLawBlog or Fletcher Heald & Hildreth. They do not necessarily represent the views of any of our clients, and they certainly differ from those of some of Mitchell’s colleagues. We welcome debate here, so readers who disagree with Mitchell’s take on the situation are encouraged to post comments to it.]

We all know the U.S. Court of Appeals for the D.C. Circuit has struck down the FCC’s key effort to craft “net neutrality” rules. See the court’s opinion here, and Paul Feldman’s explanatory piece here.

The invalidated rules would have required fixed broadband Internet service providers (ISPs) to treat content providers even-handedly. A cable TV company, in its role as Internet provider, could not intentionally slow Netflix while putting through its own video downloads at full speed. Nor could an ISP accept fees from a retail site in exchange for favoring that company’s traffic over that of rival retail sites.

Now, after the court’s action, such discriminatory activities are probably legal. 

Many conservatives, along with the FCC’s two Republican commissioners, are delighted. Many believe Internet companies should be subject to regulation only by the free market and not by the FCC.

But the free market requires a market. There is not much of one for ISP service.

Continue Reading...

Net Neutrality 2014: D.C. Circuit Tosses Most of the FCC's "Open Internet" Rules

Court affirms FCC’s authority to engage in some Internet regulation, but FCC faces complex choices on next moves.

 In the war over how, if at all, the Internet will be regulated, a major battle has been decided. Both sides can claim victory to some degree, but no knockout punch was landed: the war wages on. 

The U.S. Court of Appeals for the District of Columbia has struck down the core “anti-blocking” and “anti-discrimination” elements of the FCC’s Open Internet rules. At the same time, the Court agreed with a crucial aspect of the FCC’s strategy: the Court held that the FCC does have the authority to regulate Internet traffic management under Section 706 of the Communications Act. While that affords the Commission at least a ray of hope going forward, how the FCC might utilize that authority remains to be seen.

The FCC now has some choices to make as it contemplates its next step. In the meantime, broadband Internet Service Providers (ISPs) will be able to experiment with new traffic management techniques and business models.

In late 2010 the FCC adopted its “Open Internet” rules. The Commission was concerned that Internet service providers (ISPs) could, in the position of “gatekeepers” controlling access to the Internet, unfairly bar some Internet content providers (edge providers) or at least disadvantage some edge providers relative to others. Accordingly, to assure a level Internet-access playing field, the FCC stepped in, adopting three primary measures:

Continue Reading...

Comm Act Overhaul Underway . . . Sort of

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

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

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

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

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

Continue Reading...

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

Commission considers mandating captioning of video “clips”.

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

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

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

Continue Reading...

Can the FCC Handle Phone Service over the Internet?

Regulating IP telephony will be like updating the rules of the road from horse-and-carriage traffic to modern automobiles.

Slowly and carefully, the FCC is circling around a problem that may be its hardest ever. The digital TV transition? Piece of cake. First-on-the-planet incentive auctions? No sweat. But this one is tough: nothing less than a remake of the U.S. telephone system, all 120 million phones and 1.5 billion miles of wire.

The engineers and entrepreneurs have gotten out ahead of the FCC lawyers. Now the lawyers are scrambling to catch up.

Bell’s System

Imagine you’re Alexander Graham Bell. It’s 1876. You’ve just finished constructing the first two working telephones. You have made the first ever telephone call, to your assistant in another room: “Mr. Watson, come here, I want to see you.” The call needed a pair of copper wires between the telephones, to carry an electrical signal whose variations matched the sound waves of your voice.

Now you’re ready to scale, as we say these days – to start the rollout that will place a telephone in every home and business. Your problem: just like that first time, any two telephones on a call must have a pair of wires connecting them.

Continue Reading...

In-Flight Cell Phone Use Would Come With Strings for Airlines

Draft rules would license airlines to operate on-board base stations for data and/or voice service

Almost everybody agrees: letting airline passengers talk on cell phones is a terrible idea. Nobody wants to fly cross-country strapped in next to a blabbermouth. If the matter were up for national referendum, there would be no doubt as to the outcome. Even the people who don’t trust the government to get anything right will make an exception: they want the regulators to silence the individual in the next seat.

The problem is finding a regulator having the authority to do this.

The FCC is one place to look. And indeed, since 1991 its rules have prohibited the use of in-flight cell phones, at least on the original cell frequencies at 800 MHz. The ban originated because, in earlier times, airborne cell calls posed a threat to cell phone operations on the ground. (Contrary to many reports, protecting electronic equipment on the aircraft was never the objective.)

Since those days, however, engineers have figured out how to place a miniature base station on board the aircraft, which removes the threat to ground-based calls. Details are here. In addition to keeping the on-board phones at very low power levels, the base station equipment deliberately creates radio noise in the cabin that keeps the phones from attempting to communicate directly with base stations on the ground.

Continue Reading...

Incentive Auction Update: Projected Auction Date Moved into 2015

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

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

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

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

Continue Reading...

The FCC Wants to Know: How Fast is Your Phone?

Mobile app tests your speed, reports results to the FCC.

Perhaps you missed the opportunity, a couple of years ago, to install a device in your house that tells the FCC your broadband speeds. If so, and you’re still kicking yourself for missing out, you're in luck. Now, instead of having to hook up an FCC-provided “free wireless router”, you can download an Android app developed for the FCC that does much the same thing on your mobile device. (An iPhone equivalent is expected early next year.) 

This all began with the FCC’s shocking discovery that most people don't know their own broadband speeds. For those who are interested, there are websites that will test your speed; see the examples here and here. (CommLawBlog does not endorse these, or the others mentioned below.) But the FCC was not satisfied with you knowing your speed. They wanted to know, too. So they invited you to install a device called a “SamKnows Whitebox” on your computer that shared your speed information with the FCC.

At the same time, they asked for public input on how to get comparable data from mobile broadband users. That effort has now borne fruit. (Read the FCC’s fact sheet about the new app here, or click through its 11-slide PowerPoint here, or scroll/click your way through the FCC’s webpage on the subject here.)

Continue Reading...

Remaining Internet-on-Airplane Rules Now in Effect

More good news for commercial air travelers!

Hot on the heels of the FAA’s decision to allow on-board use of many (but not all) electronic devices from taxiing through take-off and on to landing, the final step in a different gadgets-on-airplanes proceeding, this one at the FCC, has now become effective.

Late last year the FCC decided to facilitate Internet access on airplanes with the establishment of a new “Earth Stations Aboard Aircraft” (ESAA) service. While the lion’s share of the new ESAA rules kicked in last April, a couple still needed to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. According to a notice in the Federal Register, OMB has signed off on those final loose ends (specifically, revised Sections 25.132(b)(3) and 25.227(b), (c), and (d)). Accordingly, they are now in effect.

Yet another FCC proceeding on data service to airplanes, this one using terrestrial towers, is still pending.

Both FCC matters are separate and distinct from the FAA’s recent action, but all of these signal an increasing governmental openness to the use of electronic devices on commercial flights. 

Happy skies!

FCC Releases Details on Workshop about Unlicensed Spectrum Issues

Workshop to take place November 8 at FCC headquarters.

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

Meet the New Boss(es) . . .

. . . same as the old bosses? Wheeler, O’Rielly finally confirmed.

OK, readers, how about a big “welcome aboard” to the two newest arrivals on the Eighth Floor?

The Senate has confirmed Tom Wheeler and Michael O’Rielly as Chairman and Commissioner, respectively, of the Federal Communications Commission. They are expected to be sworn in as soon as possible. The confirmations return the FCC to a full complement of five commissioners. 

For those keeping score, Wheeler will be the third Democrat commissioner (joining Commissioners Mignon Clyburn – previously the Acting Chairwoman – and Jessica Rosenworcel) while O’Rielly will be the second Republican (along with Commissioner Ajit Pai).

The confirmations were delayed briefly when Senator Ted Cruz placed a procedural hold on them because of concerns about possible changes in FCC policy to expand mandatory disclosures relative to television political advertisements. Wheeler and Cruz had a sit-down chat about the matter, during which Wheeler advised Cruz that imposing such disclosure requirements was “not a priority”. Cruz was apparently satisfied, and he lifted his hold.

With that, the normally creaky Congressional wheels suddenly began to spin with impressive ease. During the last two minutes of the Senate session immediately following Cruz’s announcement, Senate Majority Leader Harry Reid asked for unanimous consent that the nominees be confirmed. No objection was voiced, and that was that. 

The record will reflect that, also in those last two minutes, the Senate unanimously approved the designation of November 2, 2013, as National Bison Day. And, just in time (since the month was already pretty much gone), it approved the annual designation of October as National Work and Family Month.

Continue Reading...

New California Online Privacy Requirements Have Nationwide Reach

Mandatory disclosure of “Do Not Track” policies applies to ALL online operators collecting personal data from California residents

In an  effort to bring some  “transparency” to the murky practice of data collection on the Internet, California has expanded its Online Privacy Protection law (CalOPPA) to include two new disclosure requirements. 

Before you click away because, what the heck, you don’t live in California so this expansion couldn’t possibly affect you, think again. 

CalOPPA applies to ANY commercial website or online service that collects personally identifiable information (PII) about “individual consumers residing in California who use or visit its commercial Web site or online service”. So if your website collects PII (trust us, most websites do), and any visitors to your site happen to live in California (even if they’re not physically there when they happen to visit your site), CalOPPA appears to apply to you.

The new law, which takes effect on January 1, 2014, requires affected Internet operators to disclose in their online privacy statements (a) how their online operations “respond” to “Do Not Track” technology and (b) whether other parties may collect PII about visitors to the operator’s site. (The specific language is included in new subsections (b)(5)-(7) to Section 22575 of California’s Business and Professions Code.)

What is “Do Not Track” technology?

Continue Reading...

Buddy, Gonna Shut You Down (Reprise)

Tach it up! Tach it up! For the second time in two and a half years, FCC moves to DefCon1 in anticipation of government shutdown.

We posted a heads-up alert last week about the possible shutdown of the federal government and the effect that that could have on licensees. Now the FCC itself is getting into the act. It has just posted on its website a “Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations”. The Commission’s plan allots a total of four hours to complete “orderly” shutdown procedures.  They’re figuring that, of a total of about 1,750 agency employees, only 38 will be manning the battle stations during the shutdown; everybody else will have to go home and shelter in place . . . but only after they have completed their orderly shutdown procedures. (Comforting factoid: All three Commissioners will stay on board through the shutdown.)

Unfortunately, the Plan doesn’t shed any light on practical questions of importance to us out here in the Real World. For instance, will the Commission’s various e-filing portals remain open and operational? We don’t expect that anything that might get filed during the shutdown (assuming that any of those portals do stay up and running) would be given a file number or be processed in any way during the shutdown, but it would still be a relief to be able to file applications, etc., even if they remain untouched by any bureaucratic hand for the duration.

[UPDATE: Since we first posted the above item we have been informally advised by a member of the Media Bureau’s staff that no FCC systems will be available for any purpose during the shutdown. From this it’s probably reasonable to conclude that CDBS, ULS and the Commission’s other online filing systems are going to be shut down for the shutdown. It’s not entirely clear why that should be the case, since the Commission routinely closes up shop – every weekend, for instance, and all federal holidays – without feeling the need to seal off its e-filing portals. But we don’t make the news here, we just report it – and the word we’re getting is that uploading of materials through the Commission’s online systems will not be a happening thing during the shutdown.]

Net Neutrality 2013: The D.C. Circuit Hears the Arguments

Three-judge panel grills opposing counsel for two hours, seems to signal doubts about FCC’s Open Internet rules.

It’s been almost two years since net neutrality was the Big Issue here – and now it’s back! On September 9 the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in Verizon’s appeal of the FCC’s effort, dating back to late 2010, to impose “open Internet” rules on broadband providers. The importance of the argument could be seen from the turn-out at the court: it was SRO in the D.C. Circuit’s main courtroom, forcing the marshals to herd the overflow into a separate courtroom where they piped in the audio of the argument.

As we have repeatedly cautioned, trying to guess the result in a case based on oral argument is an iffy proposition. Judges are adept at keeping their cards close to their robes. But still and all, it sure sounded to us like the Commission’s net neutrality effort – or at least much of it – is skating on very thin ice. In particular, at least two of the three judges on the panel (Judges David Tatel and Laurence Silberman) seemed especially “dubious” – to use a term that popped up during the argument – of the anti-discrimination component of the Open Internet rules. And whether the remaining anti-blocking provision could survive in the absence of its companion anti-discrimination provision was far from clear (although at one point Judge David Tatel seemed to suggest that there might be some way to preserve the former without the latter). Judge Silberman, on the other hand, seemed convinced that the anti-blocking provision is also a goner.  (The third judge -- Judge Judith Rogers -- asked significantly fewer questions than her confreres.)

With respect to Verizon’s argument concerning the FCC’s lack of clear statutory authority for its Net Neutrality rules, Judge Silberman jokingly suggested that the Commission’s authority derives from “emanations from a penumbra” of some statutory language – which seemed to some observers, at least, to indicate that he may be more than a little sympathetic to Verizon on this point as well.  Tatel, on the other hand, seemed at times to suggest that he could see some statutory basis for the FCC.

In our post about the recent Ninth Circuit argument about Aereokiller, we observed that, in that argument, at least, the Ninth Circuit wasn’t particularly chatty. That was not a problem in the net neutrality argument. Although each side was originally allotted a total of 20 minutes of argument time, the whole affair ended up taking two hours – much of it because of extensive probing by the judges. But don’t take our word for that – listen yourself. As it turns out, effective September 9, the D.C. Circuit is now posting recordings of oral arguments on its website! Here is a link to the argument in the Verizon net neutrality appeal. Grab some popcorn and a drink and prepare to be entertained for 120 minutes.

Conventionally the D.C. Circuit takes at least a couple of months to prepare its opinions following oral argument. Because of the complexities of the net neutrality case, it may take the court longer to crank out its decision. You never know. Check back here for updates.

FCC Works its Will on the WISP

Wireless Internet provider fined $202,000 for interference to airport radar.

An FCC enforcement official once let us in on a bit of internal policy: “We keep jacking up the fines till we get their attention,” he said. At $202,000, we suspect the FCC has Towerstream’s attention.

The case is one more in a series of 5 GHz unlicensed transmitters causing interference to airport Terminal Doppler Weather Radar (TDWR) systems. In the past, the FCC has cracked down on illegally modified transmitters, as here, but when the interference comes from lawful transmitters, it has acted more gently. This case adds a third category: severe treatment for a repeat offender, albeit using lawful equipment.

Towerstream Corporation, according to its website, is a wireless Internet service provider (WISP) catering to business customers. At least some of its facilities use the 5 GHz unlicensed “U-NII” band, of which a segment is shared with TDWRs. Back in 2009, the FCC notified Towerstream it was causing interference to TDWRs at six different airports variously serving the New York City area, Chicago, and the Florida east coast. Towerstream subsequently assured the FCC in detail that it had fixed the problem.

The FCC found otherwise. In 2012 it notified Towerstream of interference from multiple devices to TDWRs at the JFK, Miami, and Fort Lauderdale airports.

Continue Reading...

Update: Comment Deadlines Set in Airborne Wi-Fi Rulemaking

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

Website Operators: Be Aware, and Beware, of COPPA

If you’ve got a website, you could have a problem. Welcome to the COPPA Rule, a complicated FTC regulation with (a) potentially expensive ramification, and (b) some new provisions about to take effect.

If you operate a commercial website that collects personal information from visitors, you’d better be familiar with COPPA – the Children’s Online Privacy Protection Act – and the COPPA Rule adopted by the Federal Trade Commission pursuant to the Act. Even a single COPPA Rule violation can lead to a $16,000 penalty, and the FTC hasn’t been shy about doling out seven-figure fines for cumulative violations. (For the faint of heart unwilling to wade into the actual law or FTC rule, you can check out the FTC’s COPPA FAQs. But even that resource weighs in at the equivalent of 58 printed pages.)

The principal goal of COPPA is to ensure that personal information relating to children under the age of 13 is not collected or distributed by website operators without parental consent. Since many broadcast stations may be collecting information on their websites (even without realizing it), we figure it’s a good idea to remind all our readers about COPPA.

And now is an excellent time to do so because a number of important changes to the law are set to take effect on July 1, 2013.

Continue Reading...

Number, Please! Comment Deadlines Set in Telephone Numbering Proceeding

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

Update: Comment Deadlines Set in Big House Burner Ban Proceeding

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

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

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.

Continue Reading...

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

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?

Continue Reading...

FCC Proposes Rule Changes for Obtaining Telephone Numbers

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.

Continue Reading...

Aereo Update: Next Stop, En Banc?

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.

Continue Reading...

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

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

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

Will ivi Wither on the Vine?

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.

Continue Reading...

Update: Rural Microwave Flexibility Policy Now In Effect

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

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

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

Continue Reading...

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

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

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

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

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

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

Continue Reading...

FCC Demonstrates Principle of Conservation of (Regulatory) Energy

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.

Continue Reading...

113th Congress: Cooperation and Convergence?

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

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

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

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

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

Continue Reading...

Judge Puts the Cuffs on AereoKiller

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.

Continue Reading...

FCC Boots Up Internet Service in Airplanes

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.

Continue Reading...

Incognito Incentive Auction Input Encouraged

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

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

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

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

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

Continue Reading...

Court Upholds FCC Role as Data Roamin' Umpire

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.

Continue Reading...

Update: Incentive Auction Comment Deadlines Extended

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

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

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

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

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

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

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

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

Continue Reading...

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

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

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

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

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

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

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

Continue Reading...

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

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

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

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

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

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

Continue Reading...

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

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

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

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

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

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

Continue Reading...

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

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

Hint: Maybe fewer folks than you might have thought.

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

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

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

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

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

Continue Reading...

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

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

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

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

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

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

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

Continue Reading...

DIRS Activated as Hurricane Sandy Makes Landfall

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

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

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

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

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

Continue Reading...

Congressional Resolution to Copyright Disparities Sometime Soon?

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.

Continue Reading...

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

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:

Continue Reading...

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

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.

FAA Rethinks Personal Electronic Devices on Airplanes

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.

Continue Reading...

ivi TV Loses Round Two

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.

Continue Reading...

New Broadcast-Related Top Level Domains Proposed to ICANN

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:

Continue Reading...

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

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).

Continue Reading...

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

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.)

Continue Reading...

Update: Aereo Allowed to Continue Operation During Copyright Challenge

 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.

Continue Reading...

The CRB Dodges an Appointments Clause Bullet

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.

Continue Reading...

Coping with Social Media in the Workplace III

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.

Continue Reading...

Amateurs Challenge Broadband-over-Power-Line Rules

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.

Continue Reading...

ICANN Publishes List of Requested New Top Level Domain Names

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



.AND     .ARE       .OOO


USF Contribution Reform Underway (Again)

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.

Continue Reading...

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

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

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

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

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

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

Continue Reading...

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

List of applicants to be disclosed on June 13.

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

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

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

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

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

Continue Reading...

Top Ten Tips for Telecom Transactions - Part V

[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.

Top Ten Tips for Telecom Transactions - Part IV

[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.

Continue Reading...

Top Ten Tips for Telecom Transactions - Part III

[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.

Continue Reading...

Top Ten Tips for Telecom Transactions - Part II

[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.

Continue Reading...

Media Access Project Exits Stage Left

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.

Continue Reading...

FHH Welcomes Back Kathy Kleiman

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

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

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

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

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

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

Top Ten Tips for Telecom Transactions

[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.

Continue Reading...

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

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.

Continue Reading...

Access of Evil? FCC Unveils NOITALS

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

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

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

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

How’s it going to do that? 

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

Continue Reading...

More Steps Toward TV Band Clearing

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.

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

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.

Continue Reading...

Aereo vs. the Broadcasters

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?

Continue Reading...

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

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.

White House Proposes Approach to Privacy Protection On-line

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?

Continue Reading...

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

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.

Continue Reading...

First Steps Toward TV Band Clearing Start

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.

Continue Reading...

Update: Incentive Auction Act Signed Into 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.

FCC Still Hooked on Speed

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.

Congress Opens Door for Spectrum Repurposing, Incentive Auctions

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:

Continue Reading...

Federal GPS Users Nix LightSquared

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.

Update: Comment Deadlines Set in Video Relay Service Overhaul

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.

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

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.

Continue Reading...

Commission Dismisses TV Channel-Sharing Proposal

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.

Continue Reading...

Update: FCC Invites Comments on Recon re New iTRS Rules

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.

FCC Proposes to Reform Video Relay Service

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.

Continue Reading...

Lowest Unit Rate and Internet Streaming

[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?

Continue Reading...

ICANN's New Uniform Rapid Suspension System

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.

Continue Reading...

Update: Effective Date of Revised BPL Rules Set

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.)

Net Neutrality Update: One Lonely Reconsideration Petitioner

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?

“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.

Continue Reading...

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

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.

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

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.

Continue Reading...

Update: Data-Roaming Complaint Process Now In Effect

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.

Net Neutrality: Verizon Lucks Out in Circuit Lottery

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!

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.

Continue Reading...

Coping With Social Media In The Workplace II

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.

Continue Reading...

Closed Captions for the Open Internet?

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.

Continue Reading...

Update: Effective Dates Set For Wireless Backhaul, iTRS Revisions

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

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?

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

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.

Continue Reading...

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

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.

Continue Reading...

Update: Last of New 700 MHz LTE Rules Takes Effect

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.

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

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.

Wireless vs. Broadcast: Chalk One Up for Wireless

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.

Continue Reading...

New 700 MHz LTE Rules Take Effect

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.

Reins Tightened on iTRS Providers

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.

Continue Reading...

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

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.

Continue Reading...

Net Neutrality Lands at OMB

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.

FCC Targets Spoofing

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.

Continue Reading...

Outage Reports On the Horizon for Interconnected VoIP Providers?

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).

Continue Reading...

"I See Dead Proceedings."

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?

Continue Reading...

S.911: Senators Set Sights On Spectrum

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:

Continue Reading...

Update: Comment Deadlines Set In BRS/EBS Rulemaking

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.

Broader Broadband For 4G Networks?

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.

Continue Reading...

The Chill Is On For TV Channel Changes

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.)

More Trolls On A Roll

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!

Continue Reading...

S.978: Sending Illegal Streamers Up The River?

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).

Continue Reading...

Update: New Roaming Rules To Take Effect June 6

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.

Update: FCC Process Reform Hearing Date Set

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.

Some More Observations About Copyright, Content Distribution And Technological Innovation

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.

Continue Reading...

FCC Process Reform: Change In The Air?

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.

Continue Reading...

FCC Seeks Input On Broadband Consumer Information

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.

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

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.

Continue Reading...

Update: New Comment Deadlines In VoIP/Accessibility Proceeding

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.