Pre-1972 Sound Recording Litigation: The Beat Goes On

Flo and Eddie, still on a roll in New York, face a decision; meanwhile, a new plaintiff surfaces in California

For those of you awaiting the next installment of “Flo and Eddie Get Sirius”, we have some news. Recall that last November, the former Turtles were oh-so-close to getting a judgment against Sirius XM in the New York version of their fight to collect for infringements of Flo and Eddie-owned copyrights covering a number of pre-1972 sound recordings. The only thing that stood between them and a favorable judgment was Judge Colleen McMahon’s invitation (actually, it was an order) to Sirius XM to show cause why judgment shouldn’t issue.

As we expected, Sirius XM came up with a number of arguments, none of which struck paydirt. It claimed that the plaintiff corporation, Flo and Eddie, Inc., didn’t really own the copyrighted works at issue – a claim Judge McMahon rejected. Sirius XM’s argument was based on the notion that, while Howard Kaylan and Mark Volman (who used the noms de disque Eddie and Phlorescent Leech a/k/a Flo, respectively) clearly held title to the recordings, it wasn’t clear that they had formally transferred title to their corporate persona, “Flo and Eddie, Inc.” Judge McMahon reviewed the available evidence and was convinced that the corporation held title.

Along the same lines, Sirius XM argued that Flo and Eddie had implicitly authorized the digital transmission of their works by appearing on (and hosting) various Sirius XM shows. Judge McMahon wasn’t convinced, mainly because anybody alleging such implied authority has a very high burden to meet (and Sirius XM didn’t meet it). Along the same lines Sirius XM claimed that Flo and Eddie had waived any infringement claims or that they should be estopped from raising them. McMahon concluded that this was akin to the “implicit authority” claim and rejected it.

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Push to Expand Online Public File Obligations Moves Ahead at Warp Speed

NPRM would include broadcast radio, cable, satellite providers in FCC-maintained online system.

Back in July – that would be less than six months ago – three public interest groups asked the Commission to revise its rules to require cable TV and satellite TV (DBS) operators to maintain online public inspection files akin to the online files that conventional TV broadcasters have been required to maintain for about two years. As we reported in August, the Media Bureau wasted no time in seeking public comment on the proposal (which the Bureau expanded to include radio broadcasters and satellite radio (SDARS) operators as well) a couple of weeks after the proposal’s submission.

And now, a mere four months later, the Commission has issued a Notice of Proposed Rulemaking (NPRM) formally proposing that cable and satellite operators (both TV and radio) – and radio broadcasters – all be subject to essentially the same online public file regime to which TV licensees are already subject.

While the FCC is moving unusually fast on this, we probably shouldn’t be surprised: the shift to online public files for TV licensees has proven to be relatively uneventful, and it has yielded a bounty of data for national public interest groups eager to slice and dice trends in political advertising. (That eagerness has already led to multiple complaints – check out our posts here and here, for example – in which watchdog public interest groups have questioned stations’ compliance with the political file requirements.) With this success under its belt, the Commission presumably figures that it’s a no-brainer to bring TV’s cable, satellite and radio sibs to the online public file party, too.

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D.C. Circuit Rebuffs SoundExchange in CRB Appeal of SDARS/PSS Royalty Rates

But Sirius XM, which succeeded before the CRB, may not be happy that its victory was upheld.

When it comes to setting copyright royalty rates, the Copyright Royalty Board (CRB) enjoys considerable leeway. Just ask the U.S. Court of Appeals for the District of Columbia Circuit.

In an across-the-board victory for the CRB, the Court has upheld the CRB’s final 2013 ruling determining royalty rates for the Satellite Digital Audio Radio Service (SDARS, a service with only one operator, Sirius XM) and Pre-existing Subscription Services (PSS) (e.g., the appellant in this case, Music Choice). While the particular rates at issue in the appeal are probably not of much direct interest to most of our readers, a couple of aspects of the Court’s opinion could come into play when the CRB eventually resolves “Webcasting IV”. That’s the proceeding that will establish rates and terms for webcasting by radio stations and other non-interactive services for the years 2016-2020.

First, there’s the question of how the CRB reaches a particular royalty rate. If the affected parties (i.e., service providers and copyright owners) can’t come to mutually agreeable terms, the question goes to the CRB, which conducts a trial-type proceeding. The interested parties propose rates, or rate ranges, and then offer evidence to support their respective proposals. Each side gets to challenge the other’s evidence. In the end, the CRB reviews all the evidence and comes up with rates to apply over the coming five-year term.

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Flo and Eddie Take Their Siriusly Winning Ways to the East Coast

Sirius XM loses on public performance claims for pre-1972 sound recordings … again.

I’ve already written about two lawsuits – both in California – based on infringement claims arising from Sirius XM’s public performance of sound recordings created before February 15, 1972. (You can read those two posts here and here.) In both cases Sirius XM suffered adverse rulings. It remained to be seen, however, whether Sirius XM (and other potential defendants engaged in the digital transmission of “pre-1972” sound recordings) might be in trouble elsewhere.

The answer is (drum roll, please) “YES”.

The plaintiffs in one of the California cases – former Turtles Mark Volman and Howard Kaylan, better known to many by their noms de disque, Flo and Eddie – also sued Sirius XM in New York. And now Judge Colleen McMahon of the U.S. District Court of the Southern District of New York has joined her West Coast colleagues by taking a big step toward granting Flo and Eddie summary judgment on the liability element of their claim against Sirius XM. (If she concludes that summary judgment is the way to go, the case will proceed to a damages phase where a dollar figure can be attached to that liability.)

But Judge McMahon went a bit beyond the California decisions: her opinion may pave the way for judges in other states to hop on the bandwagon more easily, and it may also include a veiled warning for broadcasters as well.

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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.

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New Hope for Old Performance Right Holders

Turtle vets Flo and Eddie walk all over SiriusXM, relying on state law in copyright infringement case. A boost for possible Federal performance right royalties?

The concept of performance rights royalties has been given a limited, but potentially significant, shot in the arm by a Federal judge in California. As a result, the date of February 15, 1972 could become less of a barrier preventing artists who recorded songs prior to that date from demanding royalties for the public performance of their recordings.

This is thanks to two of the Turtles, Howard Kaylan and Mark Volman a/k/a Phlorescent Leech and Eddie a/k/a Flo and Eddie. (Curious about those alternative names? It’s a long story that involves the Mothers of Invention .) They successfully sued SiriusXM Radio for royalties arising from its performance of pre-2/15/72 Turtles tunes.

The court win opens the door for mid-20th Century artists to recover royalties from services like Sirius XM, Pandora – and even, in some instances, broadcasters – for playing their songs. And make no mistake, the number of artists in question is huge, including the Turtles, obviously, but also the Beatles, the Stones, Hendrix, Led Zeppelin, the Beach Boys, the classic Motown acts, etc., etc., to name just a small handful of artists whose works are still on many playlists today, more than 40 years down the road.

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2014 Reg Fees Proposed: Good News for Radio, VHF TV; UHF TV, Not So Much

It happens every spring: the annual announcement of proposed regulatory fees that the FCC’s regulatees will be called upon to shell out toward the end of summer. While the Notice of Proposed Rulemaking (“NPRM”) laying out the proposed fees has in recent years tended to pop up in early May (or even April, back in 2010), the Commission is running a tad late this time around. 

Never fear – the proposed 2014 reg fees are here!

While the final figures (usually adopted in July or early August, payable in late August or September) may vary here and there from the proposals, generally any changes will be minor. The issuance of this year’s NPRM gives one and all an opportunity to comment on the proposals before they get etched in stone (although many may question the utility of trying to sway the Commission on the fee front).

There’s some interesting news for both TV folks and radio folks in the FCC’s proposals.

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Pursestrings 2014: New, Improved Effective Date for New Application Fee Schedule Announced

Last month we reported on the FCC’s announcement that its new application fee schedule would kick in as of June 6. We also suggested that there would likely be some slippage and that the actual effective date would be later. Sure enough, the Commission has announced that the real effective date of the new fee schedule will be July 3, 2014. The Commission promises that it will issue a further public notice confirming the date before then; it also says that new fee filing guides will be posted on its website before as well. We’ll keep an eye out and, if the date starts to move again, we’ll let you know.

In the meantime, if you have any applications that could be filed by July 2, you can save yourself at least a couple of bucks by getting them in before the prices go up.

Pursestrings 2014: Possible Effective Date for New Application Fees Announced

NOTE: This post has been UPDATED and CORRECTED since it was originally published (see explanatory note, below).

 As we previously reported, the Commission announced its routine cost-of-living-based application fee increases in an Order released in March. That Order has now been published in the Federal Register, as a result of which the new fees are set to kick in on June 6, 2014.

We understand that, as a practical matter, there may be some, probably minor, slippage of the actual effective date, as the Commission has to adjust its various online filing systems to reflect the changed fees. But since we know that the new fees will not in any event become effective prior to June 6, if you’ve got any applications you’re thinking about filing, you can save yourself at least a couple of bucks by filing now rather than waiting until June 6.

[Blogmeister’s Note: Nostra Culpa, Nostra Maxima Culpa – As noted, the post above has been substantially updated and corrected since it was originally published earlier today.

In its original form we referred to Section 158(b) of the Communications Act, which requires that the Commission provide Congress with any revised application fee schedule no less than 90 days before that schedule is to take effect. We suggested that that requirement might delay the effectiveness of the amended application fee schedule.

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Good Day Sunshine: "The Federal Communications Commission Process Reform Act of 2014"

Rob Schill shares his views on the latest Congressional effort to bid “good day” to the Sunshine Act.

[Blogmeister’s Note: The House recently passed H.R. 3675, the Federal Communications Commission Process Reform Act of 2014. If passed by the Senate and signed by the President, this bill would require the FCC to set certain deadlines and time limits for some of its activities, and also prepare some extra routine reports and the like. We’d go into greater detail on these nitty-gritty points if the bill were likely to get through the Senate, but the smart money currently says that that’s not going to happen, so we won’t bother our readers with unnecessary information. If the smart money turns out to have been wrong, for sure we’ll be reporting on the final bill.

One aspect of the House bill did attract our attention: a provision that would permit FCC Commissioners to meet in nonpublic sessions to discuss business. The longstanding Government in the Government in the Sunshine Act (the Sunshine Act) would ordinarily prohibit such closed door meetings, but the House is nevertheless apparently OK with letting the FCC bar the doors and shutter the windows. A nearly identical proposal was introduced in 2013. Our colleague, Kevin Goldberg, wrote – somewhat disparagingly – about it back then. In the interest of fairness and balance, this time around we’re offering a different take on the matter from our colleague, Rob Schill.]

The Federal Communications Commission Process Reform Act of 2014 (the 2014 Reform Act) raises the same essential question my friend and colleague Kevin Goldberg addressed last year: Is it conducive to “good government” to create an exception to the Sunshine Act that would allow more than two commissioners to meet privately when a few key transparency safeguards are included? Kevin and I reach different answers to that question.

The 2014 Reform Act seeks the happy medium between the competing needs of openness and administrative efficiency. The bill looks to provide for transparency and accountability while acknowledging the reality that the FCC often does not move at a pace consistent with the changing technology world it is tasked to oversee. The fact that the bill has bipartisan Congressional support, as well as the support of FCC members and industry representatives, suggests that perhaps Congress is onto something here. 

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Pursestrings 2014: New Application Fees Announced

Effective date TBD

If you’re planning on filing any applications in the near future, you can save yourself a few bucks by getting them on file sooner rather than later. That’s because the FCC’s schedule of application fees has just been given its semi-regular overhaul, resulting in an across-the-board uptick of about 8%. (That reflects the net change in the Consumer Price Index for all Urban Consumers since the last increase, a formula specified by Congress in Section 158 of the Communications Act.)

The Act gives the FCC no latitude when it comes to fee application cost-of-living adjustments: they’re supposed to be done every two years. Since the last increase took effect in 2011, we’re running a bit late this time around, but who’s keeping track?

The good news is that, while the 2014 fee hikes have been announced, they won’t become effective for at least a few months. The precise effective date is, well, not all that precise just now. Historically, this is where the fun begins. Long-time readers may remember our original “Pursestrings” series of posts, starting in September, 2008, and stretching out until mid-May, 2009. (Short version: Despite adoption of a new fee schedule in September, 2008, with an anticipated effective date of January 1, 2009 or thereabouts, that date was missed, and then several later announced effective dates passed as well. The fees announced in September, 2008, finally kicked in for real until May, 2009.) Things worked a bit more smoothly in 2011, the last time the fee schedule was hiked, but you never can tell.

According to this year’s announcement, the effective date of the new rates will be 30 days after the order is published in the Federal Register. Perhaps so, but Section 158(b) of the Communications Act requires that the Commission notify Congress of application fee adjustments “not later than 90 days before the effective date”. So the FCC’s going to have to let Congress know about the new fees, and then wait 90 days. It will also have to publish a notice in the Federal Register 30 days before they can take effect.

Bottom line: you’ve probably got another three, maybe four, months to take advantage of the current lower fees. We’ll keep our eyes open for further Federal Register notices and report on them in future posts.

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.

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Yeah, Who DOES Need the FCC?

A counterpoint to Mitchell Lazarus’s similarly-titled, but philosophically different, post.

[Blogmeister’s Note: When we posted Mitchell Lazarus’s item concerning the need for the FCC, we anticipated push-back. And sure enough, our colleague Jon Markman has stepped up. The views expressed in the post below are Jon’s alone. As was the case with Mitchell’s post, others here at FHH may share some or all of Jon’s views; some may not. Ditto for our readers. We again encourage anyone who agrees or disagrees with Jon to let us know by sending along a comment.]

In a recent post here on CommLawBlog, my colleague Mitchell Lazarus addressed some core functions of the FCC that make it “not only valuable, but indispensable to how we live”. With all due respect to Mitchell – who has forgotten more about the FCC, spectrum, and telecom law in the last month than I could hope to learn in a decade – I would like to offer a different take.

The government shutdown prompts a conversation on just what are the “essential” tasks of the Federal government (keeping in mind that the Federal government is just one of the many levels of government we have in the U.S.).

In his post, Mitchell alluded to some of the extreme posturing inspired by the government shutdown, such as claims that the shutdown demonstrated the irrelevance of the Federal government and proved that smaller government is good and no government is even better. I tend to believe that this was mostly rhetoric used by one side to rally their base and/or strengthen their bargaining position in the budget negotiations; I suspect that the speakers in fact support much of what the Federal government does. But insofar as they were representative of honest beliefs, they are indicative of a far more extreme position than the norm.

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Who Needs the FCC?

The operation of our culture and commerce depends on at least three of the FCC’s functions.

[Blogmeister’s Note: Despite Blogger Mitchell Lazarus’s use of the editorial “we”, the views expressed in this post are his alone. Others here at FHH may share some or all of his views; some may not. Ditto for our readers. We encourage anyone who agrees or disagrees with Mitchell to let us know by sending along a comment.]

The recent government shutdown was applauded by some who believe that small government is better, and so, by extension, that no government at all must be better still.

That got us to thinking. Not about the whole government, just the piece we know best: the FCC. Suppose the FCC closed for good. Would anybody notice? (Other than us; we’d have to find another line of work.)

In other words: How essential is the FCC to a functioning society?

A lot of what the FCC does has social value, in the eyes of many. But set that aside. Are any of the FCC’s responsibilities not only valuable, but indispensable to how we live?

We wouldn’t ask the question unless we had an answer.

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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.]

2013 Reg Fees: The FCC Proposes a Couple of Alternatives

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

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

But this year is different.

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

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

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113th Congress: Cooperation and Convergence?

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

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

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

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

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

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From the FCC Police Blotter: Misrep Lite - When Thinking You're Being Honest Just Isn't Enough

Texas AM whacked $25K for statement that might have been inaccurate.

One of the most fundamental axioms of communications law: correctness is essential, whether you’re filling out an application, filing a pleading, responding to an FCC inquiry, or whatever. When you tell the Commission something, you had better be right. We’re not talking about affirmatively lying to the Commission. That, of course, is even higher up on the list of mortal sins in the FCC’s catechism. But nowadays, any inaccuracy in what you tell the agency – even if it’s not an intentional inaccuracy – can land you in hot water, unless you can show that you had a “reasonable basis” for your statement. The FCC enforcement folks, whose contributions to the government's coffers have increased dramatically in recent years, have recently driven this point home with considerable vigor.

As we have previously observed, Section 1.17(b) of the Commission’s rules prohibits what we have referred to as “misrepresentation lite”. As my colleague Mitchell Lazarus described it, the misconduct prohibited by the rule

does not involve “misrepresentation” – what many of us know as “lying” – because that requires some element of deceit. No showing of deceit is necessary to trigger Section 1.17. All it takes is the filing of “incorrect” information “without a reasonable basis for believing” that the information is, in fact, correct. This seems to say that any mistake in an application could subject the applicant to a very substantial penalty, even if the mistake is purely unintentional.

An AM licensee in Texas found out about this the hard way.

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FCC Floats a Novel Way of Allocating Spectrum

Going beyond ordinary auctions, an FCC working paper proposes a new approach based on mathematical game theory.

The FCC is looking at a new way of allocating radio frequencies.

One of the FCC’s most difficult jobs is squeezing an ever-growing number of users into a fixed amount of spectrum. The variety of radio-based applications keeps growing, but the amount of spectrum suitable for each application is more or less fixed. True, engineering advances keep opening ever-higher frequencies, but the physics of radio waves limits those very high frequencies to a relatively narrow set of applications. Most new spectrum users must fit in and around the incumbents.

The parts of the spectrum best suited to most applications, very roughly from 30 MHz to 30 GHz, are complexly occupied. A band in this region may have primary and secondary allocations, under which secondary users are obliged to protect the primary users from interference, and must accept interference from the primary users. There may be multiple co-primary and/or co-secondary services, with those at the same level required to protect one another. The band may also have one or more types of unlicensed users, who must protect everybody else except each other, and must accept whatever interference comes their way. Much of the FCC-regulated spectrum is also shared with the U.S. government, which adds further layers of complexity.

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2012 Reg Fees Proposed: Up, Up and Away!

The FCC has performed that annual rite of spring – its announcement of proposed regulatory fees for 2012. These are the reg fees that, for the vast majority of Commission regulatees, will be due and payable by a to-be-announced date (probably sometime in August or September). As with most ritual activities, there are no real surprises here: the rates are, with very few exceptions, proposed to go up. 

In general, the Commission figures that broadcast-related reg fees should get bumped up between 4-7% or thereabouts, depending on the type of facility in question and the market in which it’s located. There are some exceptions, though. For example, commercial VHF TV stations in Markets 51-100 would enjoy a nearly 9% reduction (amounting to $2,205) compared to last year’s fee, if the FCC’s proposal holds. And fees for UHF stations in Markets 11-25 would drop $1,000 (about 3%) from last year’s levels.

We’re attaching a grid providing the proposed 2012 fees along with some comparative information showing the changes from the fees actually imposed last year. (Red entries reflect 2012 fees that would go up over last year’s fees; the small handful of green entries reflect fees that would go down this year.)

As always, the Commission is giving everybody a chance to comment on the proposed fees. If you’ve got something to say about the proposals, you’ve got until May 31, 2012 to file comment with the Commission. Reply comments may be filed until June 7

Over and above the fees themselves, this year’s Notice of Proposed Rulemaking (NPRM) contains a couple of elements of interest.

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Royalty Battle Royal: SiriusXM vs. SoundExchange

 One monopoly sues another -- for antitrust violations!  Is this a great country or what?  The Swami weighs in.

In some confrontations, it’s tough to say who to root for. Godzilla vs. Mothra, for instance. Or Duke vs. UNC. Or Liverpool vs. Manchester City.   (For the record, I’m going with (1) Godzilla, (2) UNC and (3) a draw with a number of red cards and several non-career threatening injuries thrown in for good measure.)

And now we have SiriusXM vs. SoundExchange.

SiriusXM – the monopolistic satellite radio provider that many radio broadcasters view as an archenemy – has sued SoundExchange – the monopolistic digital music licensing agency that many radio broadcasters view as an archenemy. SiriusXM’s claim is that SoundExchange (along with a co-defendant, the American Association of Independent Music (A2IM)) has engaged in antitrust violations and tortious interference with prospective economic advantage.

(The notion that SiriusXM, an entity created by the merger of the only two satellite radio providers, would complain that somebody else is violating the antitrust laws is rich with irony. But I digress.)

It’s still way too early for me, the Swami, to try to predict how this suit might eventually end up. But I don’t think it’s too early to imagine who the overall winners and losers might be as this litigation plays out. We’ll get to that in a minute.

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Access of Evil? FCC Unveils NOITALS

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

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

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

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

How’s it going to do that? 

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

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Hill's Bills Drill Process Ills

House, Senate proposals – S.1784, H.R.3309, S.1780 and H.R. 3310 – look to increase transparency, efficiency, predictability of Commission’s activities

On November 2, Rep. Greg Walden (R-OR), Chairman of the Energy and Commerce Subcommittee on Communications and Technology, and Senator Dean Heller (R-NV) took the wraps off  legislation aimed at improving regulatory process at the Federal Communications Commission (FCC).  Just how might that be accomplished? According to the bills’ sponsors, by imposing a number of procedural constraints on the Commission that would force it to act more transparently, more efficiently, and within more predictable time frames.

As we’ve previously reported, over the last several years FCC process has at times been a source of bipartisan frustration.  Concern about the absence of certainty in how – and how fast – the process will run has developed into a mini-movement to revisit agency process.  Agency practices that have given rise to this alarm include: texts of orders not being released until weeks or months after their nominal adoption; “shot clocks” for agency action that are inconsistently applied (when they exist at all); unilateral control of the Commission’s agenda being wielded by the Chairman (allowing the Chairman to prevent action on matters that a majority of Commissioners might prefer to vote).

And, perhaps, the attention of a divided Congress is more easily attracted to an agency that asserts itself into areas where its statutory authority is at best indirect and, in the eyes of some, even nonexistent (hard to believe? check out the D.C. Circuit’s 2010 Comcast decision on net neutrality).

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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.

Update: Comment Deadlines in Alien Ownership Proceeding Set

In August we reported on an FCC proposal to liberalize its approach to alien ownership of common carrier and aeronautical radio station licenses. The Commission’s Notice of Proposed Rulemaking has now been published in the Federal Register. As usual, that means that the deadlines for comments and reply comments have been set. If you’re inclined to file comments on the proposal, you’ve got until December 5, 2011; reply comments may be filed by January 4, 2012.

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.

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White House Would Send $5 Billion Bill to Spectrum Users

American Jobs Act calls for spectrum fees

As it waves a metal detector over every inch of the country’s economy, looking for any stray nickel or dime with which to fund its ambitious American Jobs Act (Jobs Act), the Obama Administration apparently thinks it’s hit a minor jackpot: spectrum fees. That’s probably not good news for spectrum users of any stripe (although TV broadcasters may get a pass, at least initially). As the national debate on the proposed bill develops, all spectrum users should keep their eye on this particular detail. Things could get pricey if this proposal finds its way into law.

 The issue arises in Section 278, which would require the Commission to collect nearly $5 billion over the next ten years through such fees. The fees would come in through annual assessments for spectrum use. The universe of fee payers would include pretty much anybody who holds any kind of spectrum license – except broadcast television and/or public safety licensees, and initial licensees/permittees who got their authorizations through the competitive auction process. (But note – that last exemption for auction winners gets them only through the initial license term or until their license is modified, at which point they join the ranks of the fee-eligible.)

The Jobs Act doesn’t say anything about the regulatory fees that licensees already pay, so presumably the proposed user fees would be in addition to reg fees. The likely rationale: regulatory fees are supposed to cover the cost of the FCC’s regulatory operations; spectrum user fees, by contrast, constitute a tax on the commercial benefits licensees can realize through utilization of their spectrum.

How exactly would the spectrum fee be calculated for licenses in the various services?

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Two More Days! Two More Days! Reg Fee Deadline Extended

This just in: the FCC has extended the deadline for the 2011 regulatory fees! If you haven’t paid yet, no problem: you now have until 11:59 p.m. ET on September 16, 2011, to get the cash into the Commission’s hands. The terse public announcement of the extension provides no insight into why the deadline is getting pushed back two days – but who cares? If you didn’t get your fees in by the original deadline (i.e., September 14), you can still avoid that pesky 25% late charge if you just can scrape together enough to cover what you owe the Feds by the extended deadline. Good luck.

Update: National EAS Alert Test Details Coming Into Sharper Focus

With the first National EAS Test just ten weeks away, more details regarding the exercise are emerging. The test is set for Wednesday, November 9 at 2:00 pm EST. (If you happen to have been in a sensory deprivation tank for the last several months and are drawing a blank on the whole National EAS Test question, check our previous posts to get caught up.)

At the appointed time, the Federal Emergency Management Agency (FEMA) will send out a “live” Emergency Action Notification (EAN) code activating the EAS for “a national emergency”. To forestall panic, the alert will include an audible “this is a test” notice. It’s a little iffy, though, whether the “live” EAN video message transmitted will be able to flash “this is a test” on video screens, which might be problematic for deaf or hearing-impaired viewers. FEMA and the FCC are working with EAS participants on possible technical solutions to mitigate the impact of this limitation.

Some of nitty-gritty details recently clarified include:

  • The test will conclude with transmission of an End of Message (EOM) code rather than an Emergency Action Termination (EAN) code. This means that EAS participants should not need to reconfigure their EAS encoder/decoder equipment.
  • The “location code” for the test will be Washington, D.C. The FCC presumes that most encoder/decoder devices will automatically forward an EAN with a Washington, D.C. location code without reconfiguration. But EAS participants unsure whether their device will do so need to check with either (a) the manufacturer of the box or (b) FEMA’s Integrated Public Alert and Warning System Office at Better to tie that detail down sooner rather than later.
  • The test will last approximately three minutes. (Author’s comment: Really? After the President – or whoever is speaking – goes through the standard script (repeat after me: “This is only a test. If it had been a real National Emergency, you would have been instructed ….”), he’ll have about two minutes and fifteen seconds left. What’s next – a national “Sweet Caroline” sing along? An abbreviated version of John Cage’s 4’33”?)
  • FEMA is working with selected states, EAS participants and manufacturers to conduct statewide pre-tests. A national pre-test will not be conducted. To find out if your state is among those doing a test-in-advance-of-the-test, check with your state’s EAS contact) or FEMA’s IPAWS Office.

Stay tuned for further details as Test Day nears.

Welcome Mat Out for Aliens?

NPRM proposes lower hurdles for alien ownership -- and alien investment.

With the issuance of an extensive Notice of Proposed Rulemaking (NPRM), the FCC is looking to liberalize its approach to permitting alien ownership of common carrier and aeronautical radio station licenses. While it’s not exactly a re-opening of Ellis Island, the plan should significantly expand opportunities for aliens to acquire or increase license ownership. The FCC correctly recognizes that its current policies and processes are burdensome to prospective foreign investors, unnecessarily impeding, delaying and obstructing the ability of aliens to buy, or buy into, FCC licensees – and thus also creating barriers to investment capital that could benefit U.S companies and U.S. consumers.

The starting point for any discussion of alien ownership of domestic U.S. communications interests is Section 310(b) of the Communications Act, a provision that dates back to the original 1934 version of the law.  Drafted in an era when foreign Fascists and Communists had to be prevented from acquiring control of our communications media, Section 310(b) strictly prohibited – and continues to prohibit – aliens from directly owning a broadcast, common carrier, or aeronautical radio license or even from owning more than 20% of a company that holds such a license. 

However, having erected a seemingly impenetrable fortress against evil foreign influences, Congress left the back door wide open.

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2011 Reg Fee Deadline Announced: September 14, 2011

Get out your calendars . . . and your checkbooks! The Commission has announced the deadline for filing this year’s regulatory fees. And that deadline is (drum roll, please): 11:59 p.m. ET on September 14, 2011.  (Ahem -- that would be the date our colleague Davina Sashkin predicted in her post a couple of days ago . . . not that we're looking for any credit or anything just because she had it right.)  As Davina reported there, the payment window opened as of August 12, 2011 (when the Fee Filer system started accepting reg fee payments), for those of you who want to (a) avoid any last-minute rush, and thereby also (b) avoid the 25% late fee that gets tacked on for folks who miss the deadline. Of course, the 2011 reg fees (formally announced last month) won’t technically become “effective” until September 9, since the order establishing those fees didn’t make it into the Federal Register until August 10. But it appears that the FCC isn’t going to let its knickers get wadded up about that kind of hyper-technical detail when cash coming into the Commission’s coffers is involved.

You can find a table of broadcast-related fees here. The entire list of fees for all services is included in Attachment C at the end of the Commission’s order

As we have previously cautioned, the Commission has stopped sending out any hard copy “pre-bills” to remind you that reg fees are due. If you want to know what the Commission thinks you owe, there’s a handy feature in Fee Filer that should give you the information that would, in the olden days, have been included in the “pre-bill”. But as we have also previously cautioned, heads up there – the Commission has been known to make mistakes, so “trust but verify” should be the order of the day. And in that vein, let’s not forget that the Commission does NOT routinely include the fees for auxiliary licenses in its own determination of fees owed – even though it still expects you to pay reg fees for such licenses. So don’t forget to inventory all your auxiliaries before you start the payment process, just to be sure that you’re paying everything you owe.

Enjoy the rest of your summer.

2011 Reg Fees: Pay Now, Avoid the September Rush!

The Commission’s 2011 reg fees still aren’t technically effective, and the FCC has yet to announce the deadline for paying those fees . . . but the Fee Filer system is ready – NOW – to take your reg fee payments.

If you’re the type of person who prefers to pay bills early to avoid pesky late charges and the like, here’s your chance. The Commission has opened up its Fee Filer system to accept payments of 2011 regulatory fees. The Pay Here/Pay Now window on the FCC’s website was apparently opened for reg fees as of sometime on August 12, even though there doesn’t appear to have been any formal announcement to that effect – just a fine-print notice at the top of the Fee Filer page reading “Fee Filer is presently ready to accept filings for 2011 regulatory fees.” 

Of course, the 2011 reg fees adopted by the Commission last month won’t be effective until September 9 (that’s according to the Federal Register notice that popped up a couple of days ago), so technically the new fees aren’t yet really on the books. But niggling details like that probably won’t stop the Commission from accepting your payment now.

The Commission has also not yet officially announced the deadline by which reg fees must be paid. Our sources indicate that that date is likely to be September 14, but we won’t know for sure until the Commission spreads the official word. We’re guessing that could happen this coming Monday, August 15.  Check back here for updates.

AstroTurf ® Filings Condemn AstroTurf ® Filings

Group that decries hidden interests keeps its true interests well hidden.

Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.

But once in a while even we get taken aback. No, not about the debt-limit debate, although that also strains our tolerance. We are referring to an unusual spate of filings in one of the FCC’s rulemaking dockets.

The rulemaking itself is an inside-the-Beltway matter. The FCC allows interested parties to file views on its proceedings even after the published comment schedule has expired. These late submissions are called “ex parte” filings, from the Latin for “one-sided,” which they generally are. In the past, they offered a way to put useful technical and policy information before the FCC staff. With the advent of electronic filing, the ex parte process has also become a way for special interest groups speaking through complaisant individuals to flood the FCC with dozens, sometimes hundreds, of nearly identical statements.

The rulemaking in question asks for comment on whether groups filing ex parte statements should have to identify who they really are. After all, an organization called “Citizens for Better Phone Service” may in fact be a telephone company seeking relief from regulation. “Coalition for a Free Internet” may be a front for a cable company opposed to network neutrality rules. And so on. Such groups are often called “AstroTurf®” entities: an artificial construct masquerading as a grass-roots organization. (AstroTurf ® is a registered trademark, even if the registration doesn't cover this particular use of the term.)

In addition to the usual suspects – lobbying groups that make frequent ex parte filings with the FCC – this rulemaking has attracted well over 200 identical submissions signed by individuals. They all read as follows:

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"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?

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Pursestrings 2011: Effective Date Of New Application Fees Announced

Effective date: June 20, 2011 (but check back for possible updates)

According to a notice published in the Federal Register, the new schedule of application fees first announced by the Commission a couple of months ago will take effect on June 20, 2011. That’s good news for all those radio licensees in Maryland, D.C., Virginia and West Virginia, whose renewals are due by June 1; not so good news for other broadcasters, who will end up shelling out $5 more per renewal application than their radio confrères in MD/DC/VA/WV.

A list of the new fees (all of which are going up by 3%-3.5% or so) is included in the Federal Register notice linked above. Also, be on the lookout for a new Application Fee Filing Guide to be posted on the FCC’s website. Historically, the Commission provides such guides in connection with the biennial changes in fees.

Whether June 20 will really be the effective date may be open to question. The last time the Commission modified its application fee schedule, it ran into considerable complications in implementing an effective date. (The final effective date turned out to be several months after the initially-announced date.) You can read about that saga in the posts (going back to 2008-2009) linked here. The problem appeared to involve a combination of factors which may be absent this time around, so we’re hoping that things go a bit more smoothly this year.

Under Section 158 of the Communications Act, the Commission must notify Congress of new fees “not later than 90 days before the effective date”.  Since the Commission initially announced the new fee schedule on March 3, and the recently announced effective date isn’t until June 20, it would appear that that requirement may have been met . . . if the Commission did in fact notify Congress sometime before March 22 (i.e., 90 days prior to June 20). The FCC may have done so, but the most recent Federal Register notice doesn’t specifically confirm that. 

Ruh-roh. Closer perusal reveals that, to the contrary, the notice says that the Commish “will send a copy of th[e] Order in a report to be sent to Congress . . . pursuant to the Congressional Review Act.” Hmmm. Does that mean that the Commission has not yet let Congress in on the new fees, or does it just mean that the FCC has to send Congress a second report reminding them of the first report that may or may not already have been sent? (When it comes to sending reports to Congress, you really can't send too many.)

For now, it’s probably best to assume that the new fees will take effect on June 20. If you have any applications that you’re getting ready to file, you might save a few bucks if you can get them on file by that date. But, based on what happened back in 2009, you might want to check back here for any changes in the effective date.

Consent Decree Is Beginning, Not End, Of Licensee's Troubles

When you agree to pay a fine, the FCC really does expect you to pay the fine.

It turns out that, sometimes, the job’s not over even after the paperwork is done. An AM licensee found that out the hard way when it got slapped with a $25,000 notice of apparent liability for failing to take care of a couple of items on a to-do list that it had promised the Enforcement Bureau it would take care of.

The story starts back in 2005, when the licensee (real name: “A Radio Company, Inc.”) received a notice of apparent liability for a short laundry list of problems, including incomplete public file, inadequate tower fencing, and operating with unauthorized facilities (seems the directional AM was using its daytime directional pattern at night). Total damage: $15,000.

The licensee dickered over the details and managed to get the fine backed down a grand (in 2007), but it kept the ball in play by appealing parts of the remaining $14K fine. In 2008, the licensee entered into a Consent Decree with the Enforcement Bureau that shaved another $6,000 off the bottom line. So at that point the licensee was looking at an $8,000 fine, a bit more than half the original amount. According to the Consent Decree, all the licensee had to do was pay the fine, set up a “Compliance Plan” designed to prevent future violations, and file three (count ’em, three) “compliance reports” with the Commission – one 90 days after the Consent Decree, the second a year after, the third two years after – confirming that the Compliance Plan was up and running. Good deal, right?

Apparently not good enough.

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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.

2011 Reg Fees Proposed: Going Up!

Remember last Spring, when the FCC issued its proposed 2010 reg fees and they had all gone down from the previous year, so we got all excited, and then when the final 2010 fees were announced, they had gone back up again and we were disappointed? Good news! This year, the FCC is sparing us that emotional whipsaw. It has just released its proposed 2011 regulatory fees, and with only few exceptions, they reflect increases – in some cases, significant increases – over last year’s numbers. This way, we won’t be surprised and disappointed in a couple of months when the final fees are announced.

While pretty much everybody’s fees are proposed to go up, the folks who would get hit hardest are full service UHF TV in Markets 11-25 and Market 26-50. Their fees would increase by 9.5% and 10.8%, respectively. We have prepared a table reflecting the proposed 2011 reg fees here. The numbers in parentheses reflect the amount of the proposed changes from last year’s fees – as a visual aid, we have indicated proposed fee increases in red, and proposed reductions in cool green.

As always, the Commission is giving everybody a chance to comment on this year’s proposed fees, but you’ll have to act fast. The deadline for comments on the proposed fees is May 24, 2011; reply comments may be filed through June 1.

This year’s notice includes a couple of noteworthy points.

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Ex Parte Follow-Up Paperwork Requirements Expanded

Additional proposals for increased reporting after ex parte meetings out for comment

Folks trying to get their way at the Commission routinely engage in what we professionals refer to as “ex parte” contacts – which usually consist of face-to-face, one-on-one meetings with Commissioners or Commission staff. Such meetings theoretically provide an up close and personal opportunity for the outside party to pitch its side of some issue to the regulators.

Ex parte meetings can be useful, but they also can be problematic from the perspective of due process and fairness. The term “ex parte”, after all, derives from the Latin for “one-sided”. If the issue which the private party is pitching in the meetings is contested, what are the chances that the other side of that issue will be fairly and accurately presented? (Non-FCC illustration: how would you feel if you found out that your soon-to-be-ex-spouse had had a private tête-à-tête with the judge presiding over your hotly-contested divorce case?)

In order to assure itself maximum access to potentially useful information (through, e.g., ex parte contacts) while still preserving at least the illusion of fairness and openness in the decision-making, the Commission has crafted a number of rules to govern the ex parte process. Those rules prohibit ex parte contacts in certain types of proceedings; in other types, such contacts are permitted as long as the private party follows up the meeting by submitting a notice summarizing the gist of the meeting (including any written materials that might have been handed out during the meeting). That notice is then placed in the FCC’s public files so that, theoretically, anyone with an interest in the proceeding at issue will be alerted to the meeting.

As happens periodically, the Commission has now adopted new rules clarifying, and expanding, the post-ex parte disclosure requirements.  Although the Commission announced the new rules back in February, they aren’t scheduled to take effect until June 1. (A couple of the changes involve “information collections” and, as a result, won’t be effective until approved by the Office of Management and Budget.) Additionally, the Commission has proposed further changes to those requirements.

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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.

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Buddy, Gonna Shut You Down

Tach it up! Tach it up! FCC moves to DefCon1 in anticipation of government shutdown

We’ve posted a couple of alerts about the possible shutdown of the federal government and the effect that that could have on licensees (read them here and here). 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. (The clock on that four-hour period apparently will start with the issuance of a “notice of decision to furlough” that will be emailed to all Commission employees to be sent home. Comforting factoid: All five Commissioners will stay on board through the shutdown.)


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

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

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

So much for the conventional wisdom.

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

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Update: EAS Rule Changes Published In The Federal Register

Last month we reported on the steps the Commission has taken toward conducting a national test of the Emergency Alert System (EAS). Those steps include revisions to Section 11.61(a)(3) necessary to flesh out some of the details of the unprecedented national testing process. The revised rule was spelled out in Appendix B to the Third Report and Order (Third R&O). And now it’s been published in the Federal Register.

The notice as published indicates that the Third R&O is effective as of the date of publication, i.e., March 8, 2011. Presumably that means the revised Section 11.61(a)(3) is now effective, although the Third R&O didn't include the usual paragraph specifically identifying the rule's official effective date. But not to worry: any question about the precise meaning of the Federal Register publication is almost certainly of no practical consequence because the revised rule does not impose any immediate obligations on EAS participants (except, of course, to stand ready for the FCC's eventual announcement of the national EAS test).

Pursestrings 2011: New Application Fees Announced

Effective date TBD

On the same day that it was cranking out hundreds of pages of Very Important Documents (including an NPRM on retransmission consent, a Report and Order on rural radio and related items concerning spectrum opportunities for Native Americans, updated rules governing accessibility for citizens with disabilities), the Commission also managed to slip out, with virtually no fanfare, a new schedule of application fees. It’s been more than two and a half years since the last revision to that schedule was announced. Since the Commission is required to review its fees every two years, this latest update is a tad late – but the last revision didn’t take effect until April, 2009, so if things move smoothly this time around, the process should be back on its biennial track.

It should come as no surprise to anybody that, at least on the broadcast side, almost all fees will be going up. In general, the increases are in the 3%-3.5% range – a figure tied to the Consumer Price Index. Note, however, that the fees for Ownership Reports ($60 per station), call sign changes ($95 per change), TV Translator/LPTV renewals ($60 per application) and AM remote control applications ($60 per) won’t be changing at all.

The Commission’s announcement left up in the air precisely when the new rates will kick in.  Historically, this is where the fun begins. Long-time readers may remember our “Pursestrings” series of posts, starting in September, 2008, and stretching out until mid-May, 2009. That series began with a simple announcement that new fees had been adopted and would be taking effect 90 days after notice of them was given to Congress. Easier said than done, apparently. After a number of odd twists and turns, those fees didn’t take effect until April 28, 2009, and weren’t incorporated into CDBS’s fee calculator until a couple of weeks after that. Read all about it in our archives.

This year’s notice specifies that the effective date of the rates will be 30 days after the order is published in the Federal Register. Perhaps so, but Section 158(b) of the Communications Act appears to require that the Commission notify Congress of application fee adjustments “not later than 90 days before the effective date”. Since the announcement of the new schedule is included in an Order and Notice of Proposed Rulemaking, with the comment dates on the proposed rulemaking portion tied to Federal Register publication,  our guess is that the Commission would like to get that order into the Register sooner rather than later. But if the order is published less than 90 days before notice of the new fees is sent to Congress, . . . well, you see where this could end up. We’ll keep an eye out for developments. Check back here for updates.

Striving For Perfection

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

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

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

Nationwide EAS Test: Report Deadline Clarified

A couple of days ago we reported on the Commission’s announced plans to conduct a nationwide test of the Emergency Alert System. Those plans include a required report that all participants will have to file once the test has been conducted – but (as we also reported) the Commission’s order were, um, a bit unclear when it came to when the report might be due. (“Unclear” in the sense that at some points the order said the report was due within 30 days of the test, while at other points the due date was said to be within 45 days of the test.) Just as we predicted, the Commission has now issued an Erratum clearing up that particular question. Answer: 45 days after the test. 

Comment Dates Set In Proposed Overhaul Of Experimental Licensing

A couple of months ago we reported on a Notice of Proposed Rulemaking (NPRM) which could lead to dramatic changes in the experimental licensing processes. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments relative to the NPRM.  Comments are due by March 10, 2011, and reply comments by April 11, 2011.

Goldberg On Webcasting On-Line

Webinar recording now available at SoundExchange site

Hey, it’s good news for all you webcasters who didn’t tune into the SoundExchange webinar on January 27 to catch FHH guru Kevin Goldberg address such useful issues as protecting one’s business and the nitty-gritty of sound recording licensing! You’ve got a second chance, because SoundExchange has posted a recording of the session on its website. You can find it here. Check it out. (And next time, try to catch Mr. G live – we can’t promise you’ll get lucky like this every time he strews his pearls of wisdom hither and yon.)

"This Is Only A Test..."

“Only” a test? Maybe so, but it’s a first-of-its-kind NATIONAL test.

If all goes as planned, sometime later this year it’s at least theoretically possible that we may hear the President himself reach out to all of us through the Emergency Alert System (EAS) for the very first time. Which is odd, because for nearly two decades the EAS has been available (as was its predecessor, the Emergency Broadcast System, for still more decades) to enable the President to do just that. Even so, the nationwide capability of the EAS has never been formally tested (with or without the participation of the Commander-in-Chief). But now, as part of its overall review of the EAS, the Commission has adopted a Third Report and Order (3rd R&O) which will, among other changes, lead to the first-ever national test of the EAS.

Weekly and monthly EAS tests and EAS activations at the state and local level have for years been SOP for EAS participants, “EAS participants” being a broad universe including broadcasters, cable operators, direct broadcast satellite operators and others. But there has never been a national test (much less an actual nationwide activation, thank goodness) of the EAS. About a year ago, acknowledging the need for “top-to-bottom” national testing of EAS to ensure that the system would in fact work should the necessity arise, the Commission issued a notice of proposed rulemaking (NPRM) looking to establish practices for nationwide testing. The 3rd R&O is the result.

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Misrepresentation Lite: Five-Figure Fine For Deceit-Free Fallibility

Inadvertent errors in applications draw $20K fine for Cricket

FCC enforcement procedures continue to baffle us.

Take the case of Cricket Communications. They are a cell phone company, as you probably know – their ads are hard to miss. To move their phone traffic from place to place, they operate dozens of microwave stations. The FCC rules require licenses for these. If you want one, you have to apply for it, but you need not wait for the license to be granted. Rather, you can begin operating as soon as the application is filed, assuming certain conditions are met. Once the FCC does grant the license, the licensee has 18 months to get its station built and on the air (if it isn’t already), and has 15 days beyond that to certify to the FCC that it has done so. Without that certification, the license cancels automatically.

Cricket had trouble with two of its microwave licenses.

As to one, it filed the construction certification on time, stating it had built the station within the 18 months allowed. But it later found the certification was in error, and had to amend. The new certification showed it had built and begun using the station much earlier, before it had even filed the license application. That amounts to unauthorized operation, which is a violation of FCC rules.

As to the other license, Cricket got the contents of the construction certificate right the first time. But it filed the certificate late, after the 18-months-plus-15-days had elapsed. And this certificate likewise showed that operation had commenced before the application was on file.

The Enforcement Bureau has proposed a fine of $20,000, which is exactly the expected penalty for two instances of unauthorized operation.

That should be the end of the story.

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

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

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

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

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

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

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

Catherine McCullough, Communicator

C-SPAN calls on CommLawBlog contributor

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

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

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

FCC Sets Out To Overhaul Experimental Licensing

New kinds of licensing promise innovators easy access to nearly all of the radio spectrum.

The FCC has always been friendly to experimenters, whether they are basement hobbyists or industrial researchers. Since 1934 the Communications Act has enjoined the FCC to “[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio . . . .” Just as important, many of the engineers at the FCC who began as teenage hams and tinkerers are eager to encourage the next generation. The FCC imposes only minimal regulation on amateur radio equipment, allows DIYers to design and operate home-brew transmitters with hardly any regulation at all, and offers “experimental licensing” so researchers and commercial innovators can test out new devices.

Nonetheless, while the pace of innovation accelerates, the rules on experimental licensing have stagnated. They require, among other things, separate FCC approval for each individual project. Ironically, considering their purpose, the rules are highly hospitable to minor variations on established uses of radio, while experimental licenses for more creative technologies can be hard to obtain. The FCC staff who do this work are technically capable and usually sympathetic to the applicants, but they are bound by the rules on the books.

In a burst of candor that may surprise equipment manufacturers and scientists, the FCC now concedes that the process for issuing these licenses can be a “roadblock to innovation.”  With this new self-awareness comes a comprehensive Notice of Proposed Rulemaking (NPRM) on experimental licensing rules so the FCC can (in its own words) “inspire researchers to dream, discover, and deliver” innovations to promote “a better way of life for all Americans.” The path to this Norman Rockwell ideal entails both updating the current rules and creating new licensing arrangements for research and development.

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FCC Doffs CAP Requirement . . . For Six Months, At Least

Commission persuades itself that waiver of the original deadline is warranted.

With Thanksgiving less than 36 hours away, the Commission has given us all something to be thankful for: it has extended until September 30, 2011, the deadline for all EAS participants to implement the Common Alerting Protocol (CAP) reception requirement. As we reported last month, that deadline originally fell on March 29, 2011, which would have given all affected parties precious little time to make the necessary arrangements. The additional six months provides some breathing room – but whether it will be enough remains to be seen. If you have questions about the CAP requirement, check out our posts from last month and from last April for background and related links.

Interestingly, the Commission says that it is waiving the March 29, 2011 deadline “on its own motion”. That’s interesting because not only had a bunch of folks questioned the adequacy of the original deadline months ago, but a petition specifically seeking extension of the deadline was filed in October.

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Sirius XM Says "Come On Down!"

RFP describes process for seeking diversity-dedicated channels set aside for “qualified entities”

It’s official! Sirius XM has posted the necessary forms, agreements, instructions, background, etc., etc., for anyone looking to lease one or more of the channels set aside for “qualified entities”. If you’re looking for a piece of that action, get out your fine-print reading glasses and head on over to, where everything is laid out in considerable detail.

We reported last month that the FCC had (after more than two years of cogitation) finally come up with a decision establishing the regulatory limitations it would place on the implementation of the set-aside process. With that guidance in hand, Sirius XM has crafted a Request for Proposals (RFP) and a couple of related agreements (including a “channel lease agreement” and a second item, bearing the deceptively simple title “Agreement”) for interested folks to slog their way through.

The RFP spells out the information would-be channel lessees will need to lay out.

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A Lobbyist's Look At Telecom In The Next Congress

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

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

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

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

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

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

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FCC Says: Send Us Toys!

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

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

Let us explain what this is really about.

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

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

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

Qualifying "Qualified Entity"

FCC finally sets eligibility guidelines for set-aside Sirius/XM channels

Look for diversity to start raining down from the skies. The FCC has finally filled in the details for implementation of the Sirius/XM set-asides which were initially approved, in non-detailed terms, more than two years ago. Those new rules are set to be implemented by April 17, 2011.

But the diversity we’ll be seeing may be different from the diversity that some folks might have expected.

Back in 2008, the FCC decided to let XM and Sirius merge. In response to objections that maybe, just maybe, reducing the number of satellite radio services from two to one might reduce competition and diversity, XM and Sirius took a bold step: they made a number of “voluntary” commitments aimed at defusing those objections. (We put “voluntary” in quotes here because the Commission’s 2008 order granting the merger made clear that, without those commitments, the merger would not have been approved.) One of those commitments involved setting aside 4% of the capacity on each of the Sirius and XM platforms for long-term leases for noncommercial educational (NCE) programming and programming by one or more “Qualified Entities”.

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Congress: Bringing Digital Eyesight To The Blind?

Wide-ranging legislation looks to expand access for blind and visually-impaired across the 21st Century communications videoscape.

Get set for a new set of sweeping changes cutting across all components of the communications universe, broadband and broadcast alike. On October 8, President Obama signed the Twenty-First Century Communications and Video Accessibility Act of 2010  (21CenComVidAccAct) into law. The new law dramatically expands disability access law to include accessibility requirements for a wide range of equipment and services, such as VoIP phones, browser-enabled smartphones, email and text messaging services, webcasts of TV programs, video and navigation devices, and others. 

While the debate over the FCC’s authority to generally regulate broadband rages on, in this area at least the discussion is over. As one FCC official noted during a panel discussion on broadband adoption, the 21CenComVidAccAct “ventures into broadband access like no legislation ever has” by giving the FCC an “enormous mandate” to ensure that various communications are accessible to people with disabilities.

And the implications of the Act may go beyond communications-for-the-disabled policy. 

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Final Ultra-Wideband Order Set To Take Effect November 12

Last chance for opponents to seek overturn of rules

The FCC order ending the ultra-wideband rulemaking appeared in the Federal Register on October 12, and takes effect November 12. After 12 long years of lawyerly and technical bickering, the proceeding is finally over.

Or maybe not. The same parties who have already filed four petitions for reconsideration – that is why we’ve been at it for 12 years – have the right to file yet again. But if they do, they are unlikely to prevail. For one thing, the FCC’s last order showed off the agency’s defensive drafting skills to good effect, with its lawyers carefully closing off each legal argument through which opponents might seek reconsideration. For another, the FCC’s procedural rules disfavor recidivist reconsideration petitioners. In cases where an earlier petition for reconsideration failed, as happened here, “a second petition for reconsideration may be dismissed by the staff as repetitious.” This rarely stops a determined serial petitioner – read about an extreme case here – but it may be enough to deter the cell-phone and satellite interests that have kept the proceeding going for so long.

Disgruntled ultra-wideband opponents have another option: an appeal to the federal courts. That would take about two years and, if the court decides the FCC should take another look, an additional year or two past that.

But the opponents are probably safe in spending their lawyers’ fees on something else instead. Their concern all along has been the supposed threat of interference from hundreds of millions of ultra-wideband consumer devices polluting the spectrum. Those have failed to materialize, for the reasons we explained here.   Unless ultra-wideband device sales pick up dramatically, opponents won’t have much to worry about.

EAS Update: CAP Conversion Countdown Commenced

EAS participants now have 180 days to prepare for CAP-based EAS alerts

That muffled noise you might have heard in the distance last week was the starting gun in the race to comply with new Emergency Alert System (EAS) standards announced by the Federal Emergency Management Agency (FEMA). With FEMA’s September 30 announcement of the applicable Common Alerting Protocol (CAP) standards, all EAS participants now have 180 days to prepare themselves to accept CAP-based EAS alerts.

There’s something of a handicap for the racers, though: the FCC still hasn’t amended its own rules to provide for CAP-based emergency messaging.

Our colleague Davina Sashkin saw all this coming last Spring, when she reported on an inquiry issued by the Public Safety and Homeland Security Bureau (PSHSB). The Commission itself had, back in 2007, announced that all EAS participants would have to get on board the CAP train within 180 days of FEMA’s announcement of the applicable CAP standards. Aware that FEMA was looking to make that announcement as early as third quarter of 2010, last March the PSHSB sought comments on how the FCC’s EAS rules would have to be modified to accommodate new CAP standards. (According to a quick check at ECFS, a relatively small handful of commenters responded to PSHSB’s invite.)

But since then, we have heard nothing from the Commission in the way of a formal proposal for amended rules to address the conversion to a CAP system.

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FCC Wraps Up Ultra-Long Ultra-Wideband Proceeding

A promising technology is slowed by regulators, then stifled in the standards-setting process.

After 12 years, the FCC has closed out one of the longest and most contentious rulemakings in recent memory.

Ultra-wideband was bound to be controversial from the start.  The basic idea consists of spreading a low-level signal across a very wide swath of spectrum, often a gigahertz or more. In principle, the level at any one frequency is too low to interfere with conventional spectrum users, but the power adds up across the wide bandwidth into a useful signal.

The FCC expected two main kinds of uses: data transmission, which can reach hundreds of megabits per second over short distances, and a variety of imaging and radar applications.

The Slow Grind of Regulation

When the FCC first proposed rules to allow ultra-wideband, virtually all major categories of spectrum users rose up as one to oppose it. The opposition included:

  • aerospace companies
  • amateur radio associations and operators
  • airlines and their associations
  • broadcasters
  • major cell phone manufacturers
  • cell phone service providers (especially vehement in their opposition)
  • U.S. Government agencies (including the Department of Defense, Federal Aviation Administration, and NASA)
  • the GPS industry association and several manufacturers
  • aviation radio interests
  • maritime radio interests
  • medical telemetry companies
  • many police and fire departments
  • satellite radio providers
  • many satellite companies and their association (likewise vehement)
  • telephone equipment manufacturers, and
  • many more.

Facing down this expensively lawyered force was a small handful of start-up companies, backed by a few established radar manufacturers. But the start-ups had something on their side even more powerful than lawyers: the laws of physics. Straightforward analyses showed that ultra-wideband, with appropriate safeguards, was non-interfering.  Opponents that tried to show otherwise had to make unrealistic assumptions in their math. At least, that is how the FCC saw it.

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Lucky 13?

Channel 13 leaves VHF ranks, migrates to UHF, according to some FCC reg fee materials

Here’s another CommLawBlog Reg Fee Tip: if you received one of the FCC’s snail mail reg fee notices, be sure to take it with a grain of salt. It has come to our attention that the fees indicated in those notices may be wrong. 

Not wrong as in incomplete because, say, they didn’t include fees for auxiliary licenses and the like. We knew about that problem (and have mentioned it here before).

No, we’re talking wrong as in, um, wrong. In particular, a number of TV licensees operating on Channel 13(maybe even all Channel 13 stations – we haven’t checked with everybody) have received notices advising them that they owe a reg fee calculated on the basis of the fact that they are operating on a UHF channel. (For any Doubting Thomases, here’s an example, from which we have redacted the identity of the specific station/licensee. We have more where this came from.)  

Hmmmm. Last time we looked, Channel 13 – i.e., the space on the RF spectrum encompassing 210-216 MHz – was in the VHF band, at least as that band is defined by, e.g., the International Telecommunication Union. And the FCC has historically taken the same position (probably because it’s got to, physics being what they are and also being as how the U.S. has been a member of the ITU for more than 100 years now). So unless there’s been some phenomenal warp in the spacetime continuum – like, maybe, a wormhole or something – that might have resulted in Channel 13 growing little RF legs and scurrying over to the UHF band, it’s safe to assume that 13 is still a V and any FCC notice suggesting the contrary is incorrect.

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Reg Fee Tip: Auxiliary Licenses May Not Show Up Automatically

. . . but you’re STILL required to pay reg fees for them, or else

Reminder to all you DIY reg fee filers: The FCC’s handy “Look-up Website” is not so handy when it comes to broadcast auxiliary licenses (licenses for, e.g., studio-transmitter links, remote pickups, etc.). When you query the “Look-up” for the fees you owe, it does not include records for auxiliaries. This can be problematic because Fee Filer will not necessarily pull up your auxiliary licenses when you punch in your FRN, either. (Our Fee Filer experience on that score has been at best hit-and-miss.)

There is a $10 reg fee for each auxiliary license that the FCC has you down for. In other words, if the FCC thinks you have an auxiliary, you owe the fee for it, even if it turns out that you don’t use that particular auxiliary and might even have forgotten about it. Because of that, it’s always a good idea to check both your records and the Commission’s, to make sure you have an accurate handle on just what licenses (auxiliary and otherwise) you’re on the hook for. And then, of course, you should be sure to include those licenses when paying your fees.

Failure to pay the fee for auxiliaries can end up being costly down the road. The late fee (25% on each late $10 auxiliary reg fee) is probably not going to kill you, as long as the lateness is limited to auxiliaries. But failure to pay any reg fee can trigger the FCC’s Red Light Rule, which can in turn have unpleasant, and possibly dire, consequences down the line.

Fee Filer Currently Accepting 2010 Reg Fees

The cash registers are opened for business at the FCC’s 2010 Reg Fee Extravaganza. The lines form to the left.

On Friday, August 6 (or possibly sometime late the day before), the Fee Filer site started displaying 2010 reg fees. There was an administrative lag between the FCC’s announcement of the deadline for this year’s reg fees and when you could actually pay them. Suffice it to say, you can pay them now. 

If you’re the adventurous sort and have confidence that by starting early enough and showing an adequate grasp of basic Internet skills, you will for sure avoid the 25% late fee payment that comes when you don’t get in the door with your fee by 11:59 p.m., Eastern time, on August 31, go to the Fee Filer page, enter the licensee’s FRN and password, and knock yourself out. If you would like help, call us.

Note that the Commission has provided a handy-dandy “Look-up Website” for Media Services Licensees. It not only lets you check what fees you owe, but it also lets you see whether or not the FCC’s records reflect that you’re exempt from paying anything. Generally, all non-profit entities (even those that happen to operate commercial broadcast stations) are exempt. 

Interestingly, if you think you’re exempt but the “Look-up Website” says otherwise, there is no way you can straighten that out online. In previous years, it was possible to claim an exemption with a couple of clicks. No more. Now you are required to email or fax documentation establishing your exemption to the Commission. (Appropriate documentation could include “a copy of your IRS determination letter showing your IRS section 501(c) tax exemption status, or state or government certifications, or proof of your station’s noncommercial educational (NCE) broadcast status at the FCC.”)

Remember, the fact that the fees are due by August 31 simply means that you will be able to enjoy that long Labor Day weekend with peace of mind.

Good luck.

Most WCS/SDARS Rule Revisions Become Effective September 1

We have previously reported on the FCC’s monumental Report and Order (R&O), adopted last May, which balanced technical interference considerations between the Satellite Digital Audio Radio Service (SDARS) and the Wireless Communications Service (WCS). After several errata correcting issues in the FCC’s first release, the FCC has finally published the R&O in the Federal Register, which in turn establishes the effective date for some – but not all – of the revised rules. That effective date is September 1, 2010.

The effective date does not apply to all the changes. The FCC expressly excepted from that effective date several rules which require further review from the Office of Management and Budget (OMB) before they can go into effect. Most of the delayed rules relate to newly-revised licensing and notice requirements. 

Of particular interest to WCS licensees are the new and very strict substantial service standards applicable to current and future WCS licensees. We described those standards, which are now set forth in Section 27.14(p) of the rules, in a recent article in our publication, FHH Telecom Law. The substantial service standards will  become effective on September 1, but the certification requirement contained in Section 27.14(p)(7) – i.e., the obligation of WCS licensees to notify the FCC that they have complied with the standards – is not currently subject to that date. So WCS licensees must start the process of bringing themselves into compliance with the substantial service standards, but need not (at least for the time being) certify their compliance to the Commission. Revised Section 27.14(p) is worded to give licensees until March 4, 2013 – a date certain – to achieve the new substantial service benchmarks.   Thus, the clock is already ticking with respect to compliance with those benchmarks.

Parties wishing to challenge the R&O now have until September 1 to file petitions for reconsideration.   Petitions seeking reconsideration of at least several elements of the R&O, including the substantial service requirements, are expected.


Reg Fee Deadline: August 31, 2010

It’s official!!! The deadline for filing reg fees this year is August 31.  We sure hope you didn’t have any plans for an end-of-summer get-away around then.  (If you did, don't forget to bring along your FRN password, the Fee Filer URL and a credit card.)

The Commission is required by statute to impose a hefty late fee amounting to 25% of any untimely fee, so now would be a good time for everyone to mark their calendars with a reminder to get their fees into the Commission by August 31.

Fees can be paid on-line through the FCC’s Fee Filer system. Electronic filing provides a quick and relatively simple way of getting the job done, as well as an instant proof of payment – which can come in handy in case any question arises about the timeliness of payment. Fee payers who choose to use snail mail do so at their own peril.

2010 Reg Fee Surprise

Final 2010 fees bounce back up, up, up from FCC’s initial lowball proposals

Remember how, back in April, when the FCC announced its proposed 2010 regulatory fees, we said that, historically, the final fees tend not to stray too far from the initial proposals? Silly us. The FCC has yet again proved us wrong by issuing its final 2010 reg fee schedule that strays dramatically from its April proposals. 

How dramatically? Perhaps the worst case scenario involves UHF TV licensees in Markets 1-10, who will see their reg fees skyrocket up by $6,975 over the rates proposed in April. Their UHF brethren in other markets above 100 will fare little better, with increases ranging from $3,325 to $5,225 over April’s proposals. 

Most radio licensees will also experience increases – the sole exceptions being Class B and D AM stations, who will remain at the levels proposed in April.

A handy table of the newly-announced final reg fees may be found here. The red figures in parentheses reflect the level of increase over the April proposals. The only fee (shown in green) that is reduced from the April levels is for AM construction permits.

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2010 Reg Fees -- Trending Down!

If it’s Spring, it’s time for the FCC to propose new regulatory fees that will be payable in late Summer. And sure enough, the Commission has released its annual Notice of Proposed Rulemaking laying out a tentative fee schedule. The Commission invites comments on its proposals, but if you think you might want to throw in your two cents’ worth, you’ll have to act fast. The deadline for comments on the proposed fees is May 4, 2010; reply comments may be filed through May 11.

The good news is that, unless you’re a UHF TV licensee (or a VHF licensee in certain markets), you’re probably not going to have a problem with the proposed fees. All AM and FM license fees are proposed either to go down or to stay at last year’s levels. All VHF license fees for Markets 11-25 and Markets from 51 on down would also go down (as would the fees for all VHF CPs). No change is proposed for translators/boosters – FM or TV – or LPTVs; ditto for broadcast auxiliary licenses. UHF CPs would go up (but only by $75), as would AM CPs (by $20), while FM CP would go down by $20.

All you full service TV operators – heads up. The Commission has previously exempted digital TV operations from reg fees because the DTV transition was still underway. As we all know, the transition was completed as of June 12, 2009, so we can kiss good-bye to the digital exemption. And while reg fees will be determined by the status of your authorization as of October 1, 2009, note that a special temporary authorization for DTV operation in effect as of that date will count as a “license” for fee calculation purposes this year.

We have prepared a table reflecting the proposed 2010 reg fees here. The numbers in parentheses reflect the amount of the proposed changes from last year’s fees – and as a visual aid, we have indicated proposed fee increases in red, and proposed reductions in cool blue.

The proposed fees are just that – proposals. We won’t know the final fees until sometime this summer, although historically the final fees tend not to stray too far from the initial proposals. We also do not yet know when the fees will be due, although that tends to be in September (or possibly August). Look for an announcement sometime mid- to late Summer.

One last highlight of the NPRM. The Commission is proposing to do away with the postcard notification system by which it has, for several years, alerted broadcast licensees of their primary fees. The postcards will still go out this summer, but starting in 2011, media licensees would be on their own to determine the fees they owe. (This is part of an effort by the FCC to become “more electronic and less paper-oriented”.) If you would like to comment on this particular proposal, the Commission is going to leave the comment/reply comment period open until September 30, 2010 for that limited purpose.

New Website Offers Detailed Info On Radio Spectrum

Users can easily search by frequency, service, many other options

Our friend Andrew Clegg, who knows as much about radio spectrum as anyone, has launched a website to help the rest of us catch up.

Enter a frequency and you find its allocations, services, band plans, channel plans, auction history . . . and a link right to the applicable FCC rules. Learn which frequencies are available for a particular service. Find the bands shared by two particular services. Get background information on usage. Search by ITU footnote. (Okay, that one’s obscure.) Obtain useful engineering data, including band designators and free space loss at various distances.

The website is still in development, but those who use this kind of information on a daily basis, as we do, will find it invaluable. It trumps by far the FCC’s “Spectrum Dashboard” we reported on the other day, both by frequency coverage and by extent of data provided.

Dr. Clegg asked us to stress that the site is still under development. He invites feedback at

Calendar Update

Procedural fine-tuning, ex parte NPRM comment deadlines set

Two months ago we reported on a couple of Notices of Proposed Rulemaking in which the FCC was looking to fine-tune aspects of its procedural rules and its ex parte rules. Those NPRMs have now appeared in the Federal Register – the procedural rules NPRM here, the ex parte NPRM here. Those publications in turn establish the deadlines for comments and reply comments on the Commission’s proposals. Comments in both proceedings are due by May 10, 2010, reply comments by June 8, 2010.

FCC Launches "Spectrum Dashboard"

Graphic database allows searches by frequency, location, name, or licensee category.

The FCC has released its “Spectrum Dashboard,” a graphic-interface database of frequencies and licensees from 225 MHz to 3700 MHz. (Check out the graphic to the left, which is a partial screen grab of the "Browse Spectrum Bands" function of the Dashboard at work.) You can search by spectrum band, geographic area, licensee name, or FCC licensee category.

Although very much a beta release, and limited in scope of spectrum, it is fun to play with. If you like that sort of thing. And we know some of you do.

FCC Fine-Tunes Procedural Rules

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

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

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

One NPRM proposes internal housekeeping changes which would:

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

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

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FCC Tells Sky-High And Down-To-Earth 7/10/13 GHz Users How To Co-exist

FCC formalizes coordination procedures between the birds, the B’s and the C’s

The FCC has issued a Report and Order adopting new rules formalizing frequency coordination requirements between Earth Stations in the Geo- and Non-Geostationary Orbit Satellite Services (GSO/NGSO) and Broadcast Auxiliary and Cable Television Relay Service (BAS/CARS) Stations in the 7, 10 and 13 GHz frequency bands.

Satellite operators use these bands to talk to their “birds” (satellites) through uplink and downlink earth stations. The same bands are used by BAS/CARS stations for fixed and mobile microwave feeds to TV stations and cable systems (such as studio-transmitter links and relays for news and other remote programming). The FCC normally requires interference mitigation through a coordination process prior to filing for a new license. That process involves sending notices to anyone in the FCC’s license database who might be affected, waiting 30 days for responses, and resolving any objections. The process is complicated enough that most applicants farm it out to  an engineering firm (such as Comsearch, Inc.),

Formal procedures have been in effect for some time for coordination between GSO/NGSO applicants and existing GSO/NGSO operations. Ditto for coordination between BAS/CARS applicants and existing BAS/CARS operations. But the Commission has not previously formally adopted any procedure for coordination between the two types of services. The FCC has now decided that the same “notice and response” rules and procedures will be in effect for coordination between as well as within the various services, when BAS/CARS stations are at fixed locations.

While the notice and response system works fine for fixed stations, it is not so simple for stations which move around, because you can’t coordinate if you don’t know where your station will be located at any given time. Therefore, the FCC has permitted mobile or temporary fixed BAS/CARS applicants to coordinate on an ad hoc informal basis, often through a third party like the local chapter of Society of Broadcast Engineers (SBE), which keeps track of who is doing what around town and when they plan to do it. The FCC has decided that all GSO/NGSO earth station applicants must use the notice and response system to coordinate with all BAS/CARS licensees, but temporary fixed and mobile BAS/CARS applicants may choose between notice and response and ad hoc coordination with GSO/NGSO entities.

When responding to a coordination request, temporary fixed and mobile BAS/CARS licensees are expected to seek protection only for frequently used locations and not for the entirety of a wide geographic area. The receive location for a temporary fixed or mobile system may be protected, as may frequently used program origination venues such as arenas, stadiums, and convention centers.

The FCC also looked at coordination in the 10 GHz band, used by terrestrial fixed microwave services and NGSO satellite links.  A while back, terrestrial operators proposed a “Growth Zone” policy, under which they could ask satellite operators to protect not only an existing path but also an anticipated future growth path. The FCC neither accepted nor rejected the idea but declined to adopt it at this time on the ground that the satellite parties who originally supported it are no longer pursuing 10 GHz licenses.   If the issue is raised again in the future, the FCC will take a new look at it.

FCC Seeks To Build A Better Website

With “Reboot.FCC.Gov”, FCC solicits public input to improve public interaction with agency

Depending on who you ask, 2010 may or may not be the start of a new decade. Depending on who answers, 2010 may or may not be the start of a new FCC. That’s because the FCC is relying on you (and you and you, the guy in the brown shoes reading this during his lunch break) to help decide on the direction in which the agency should be moving. They’ve labeled this process “Reboot.FCC.Gov” and, like all the kids are doing nowadays, they’ have not only set up a website at that domain, but also tied the whole thing together with the Blogging, and the Twittering and the Facebooking and the YouTubing (there’s a bunch of other social media connections as well, including, for some reason MySpace, in case the next big indie band wants to participate).

A more conventional format was used to launch the rebooting process on January 13: a press release (the website does contain a one minute “welcome” video from FCC Chairman Julius Genachowski).  As that release explains, the Commission is “soliciting public input on ways to improve citizen interaction with the FCC.” The Chairman elaborates on this, explaining that the goal is to “get input from all corners of the country on ways to improve usability, accessibility, and transparency across the agency.”

The project’s efforts focus on five key elements:

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2009 Reg Fees: Filing Deadline Set At September 22, 2009

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

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

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

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

2009 Reg Fees: Deadline Unsure Despite Letter

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

Don’t necessarily believe it.

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

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


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

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

2009 Reg Fees: A Break For Some DTV Stations

DTV-only as of October 1, 2008? This is your lucky fiscal year!

While pre-October 1, 2008, termination of analog operation was clearly the exception rather than the rule, it appears that stations which did shut down their analogs before October 1 are getting a free reg fee ride this year. In looking through the Commission’s recent reg fee order, we noted the following statement relative to DTV operation: “[S]tations that were broadcasting in digital only on October 1, 2008 would not be assessed regulatory fees for their digital license for FY 2009.”  (Stations that were broadcasting in both analog and digital modes as of October 1, 2008, however, will be required to pay regulatory fees, but those fees relate only to the analog operation.)

This exemption is limited: it does not get eligible stations off the hook for other regulatory fees that may be due, such as those for studio-transmitter links, remote pick-ups, satellite earth stations, and the like. Rather, the exemption relates only to the reg fee for the main broadcast license. (Of course, the payment for that license normally represents the lion’s share of the amount due.)

The FCC’s largesse is consistent with its treatment of DTV for the past several years.

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2009 Reg Fees Set

Filing deadline still unannounced

The Commission has adopted its final schedule of Regulatory Fees for 2009. You can find the new fees listed in Appendix C of this Report and Order. (Since the R&O – including its nine appendices – runs to 68 pages, it may be helpful to point out that Appendix C appears at pages 21-23 in the PDF version you will find when you click on the link.)

The new fees are, with one exception, the same as the Commission proposed last May. We described those proposed fees here. The sole exception is the fee associated with AM CPs. Here’s a surprise: the final fee ($400) turns out to be $80 less than the FCC had originally proposed!

The only real change this year is that electronic payment of all reg fees must be started through the FCC’s Fee Filer system as of this year. The Commission recognizes that some folks may not be able actually to pay through the Fee Filer system. (For example, the fees for some licensees may exceed $100,000, and credit card payments in such amounts may not be a happening thing.) But at a minimum, everybody is supposed to start at Fee Filer because that will enable them to generate a voucher Form 159-E which, the Commission assures us, “will have important electronic attributes associated with this regulatory fee payment.” With very limited exceptions, anyone not paying their fees through Fee Filer will need a voucher Form 159-E to accompany their payments.

Accessing the Fee Filer system requires you to have a current FCC Registration Number (FRN) and associated password. If you don’t have an FRN, we would be happy to help you work through the CORES system to get one.

As it has done for the past five years, the Commission will again send out “assessment notifications” to all broadcast licensees, advising them of the reg fees associated with their primary licenses. But, also as in past years, those notifications will NOT include any necessary fees for auxiliary licenses. This is important to remember, because even though auxiliary fees don’t show up on the FCC’s notifications, such fees are still required to be filed – and a failure to file even the weeny little $10 fee for, say, a remote pickup unit can result in “red light status” affecting all your licenses.

We expect the deadline for reg fees to be announced shortly.  Check back here to for updates.

Court Affirms Sat Radio Performance Royalty Rates

But separate opinion questions CRJ’s constitutionality

The U.S. Court of Appeals for the D.C. Circuit has released its decision in SoundExchange v. Librarian of Congress, No. 08-1078, affirming the royalty rate set by the Copyright Royalty Judges (CRJ) for performance of sound recordings by satellite radio services, i.e., XM Sirius.  The CRJ are the members of the Copyright Royalty Board.   While there is little surprising in majority opinion, a separate concurring opinion from one member of the three-judge panel could spell trouble for any decision coming out of the CRJ for the foreseeable future.

SoundExchange had appealed a 2008 CRJ ruling requiring satellite radio services to pay royalties in the amount of six percent of their gross revenue in 2007, with the rate eventually increasing to eight percent of their gross revenue in 2012. The CRJ also had to attribute a portion of the royalty for the making of an “ephemeral copy” of each sound recording played.  (The ephemeral copy is the digital copy stored by the satellite operator prior to playing the sound recording; because it is a “reproduction” of the sound recording, not a "performance" of the sound recording, a separate royalty rate is required.)

SoundExchange argued that the CRJ's decision was arbitrary and capricious.   According to SoundExchange, the CRJ, in setting the rates, improperly over-emphasized some considerations and under-emphasized others.   The Court disagreed, holding that the CRJ acted well within the bounds of its discretion.  No surprise there.

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Reg Fees, 2009 - Up, Up and Away!

The Commission has released its Notice of Proposed Rulemaking (NPRM) laying out its proposed 2009 regulatory fees. To no one’s great surprise, for the second year in a row all but one of the 61 categories of broadcast-related fees are proposed to go up. (The lone exception is the fee for a broadcast auxiliary license, which – also for the second year in a row – is proposed to remain at $10.) The proposed fees are listed in Appendix I to the NPRM.

And when we say “up” we mean “UP”. Reg fees for all full-service TV licenses in the Top 100 markets would increase by more than 9%, with UHF stations in the Top 10 going up by more than 14% and VHF’s in Markets 11-25 up by more than 13%. 

On the radio side, Class C AM’s in all markets are looking at double digit surges mainly in the 13%-14% range (and as much as 15.4% for stations serving populations of 25,001-75,000). Class D AM’s would fare only slightly better, with increases in the 11%-12% range (except for those serving fewer than 25,000 listeners – they’d only get whacked for a 9.5% increase). All FM stations are looking at reg fees that would be 5%-9% higher than last year.

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Pursestrings Update VIII (or is it IX?): CDBS Fee Calculation Glitch Apparently Resolved

It appears that the Commission’s technical team has successfully resolved the problem reported in our last update. Recent anecdotal observations indicate that the “new” application filing fees – you know, the ones which were adopted by the Commission last September, and which officially went into effect on April 28 – are finally being automatically generated by the Commission’s CDBS on-line application filing/fee payment systems.  (No word yet on whether the problem has been resolved on the Commission’s IBFS database.)

As recently as May 11, a glitch in the system was resulting in licensees being prompted to pay the old, lower, fees.  But as we reported then, the Commission will not be giving a free pass to those who paid the incorrect fees during this time.  The Commission may approach each licensee individually to request the difference in fees, or may announce a set of procedures for licensees to submit the additional fees.

Pursestrings Update VII (or is it VIII?): The Beat Goes On

Faithful readers will recall that we titled the last installment of our “Pursestrings Updates” series the “final chapter”. We spoke too soon. 

On April 28, the Commission’s new application filing fees finally went into effect, after a series of delays about which we dutifully reported here . . . and here . . . and here  . . . and, well, you get the point.  We figured that, with its formal announcement of the April 28 date, the FCC had things under control.

We should have known better.

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FCC v. Fox - The Supreme Court Rules

First reaction to the Big Decision

[Blogmeister's note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court's decision released April 28.  The following is one commentator's view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.

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Pursestrings Update: The Final Chapter (We Think)

New application fee schedule still set to take effect April 28, 2009.

For those procrastinating on filing applications with the Commission, now is the time to act if you want to save a few bucks.

As we reported on March 26, the Commission’s new broadcast application fee schedule will go into effect on April 28. (Application fee schedules for other services also kick in next Tuesday, April 28. You can find a collection of 2009 Fee Filing Guides for all services here.) The current fees have been in effect far longer than the Commission originally contemplated, as faithful readers of the first five or six installments of our “Pursestrings Update” series know.  But the fun ends on Monday night: all the new fee schedules will become effective at 12:01 a.m. on Tuesday morning.

Please let us know if we can help you pull together any last-minute filings to beat the deadline.

Spectrum Auction Bidders In Qui Tam Scam Jam

Whistleblowers can challenge bidding credit claims, reap big rewards

With the public issuance of letters (DA 09-822, DA 09-823 and DA 09-824) to certain winners in Auctions 58 (PCS licenses), 66 (AWS licenses) and 73 (700 MHz licenses), the Commission has lifted the curtain ever so slightly on a melodrama that has been playing out in the Federal District Court since 2007. While we still don’t know the entire cast of players, much less how the melodrama will be resolved, we can say one thing for sure: it is NOT a good idea to try to play cute with the FCC’s bidding rules in an effort to secure undeserved bidding credits. Even if the FCC doesn’t catch you, a little-known provision of Federal law provides private parties both a major league financial incentive to blow the whistle on such misconduct and a non-FCC forum in which to blow that whistle.

The source of the somewhat obscure process is the False Claims Act. Usually invoked by “whistleblowers” eager to call attention to waste in the government procurement process (think hammers bought by Uncle Sam for $5,000 a pop), the FCA permits anyone to file a complaint “on behalf of the U.S. Government” to recover ill-gotten gains. (The cognoscenti refer to such actions as “qui tam” suits – don’t ask why.)  To sweeten the deal, another provision of the law also permits the person making the claim to skim off up to 30% of any settlement or damages award that might result. And since the Act also provides for treble damages, the potential payday can easily reach into the eight digits.

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New Consolidated FCC Database System In the Works

A CommLawBlog scoop: Agency brainstorming on possible "consolidated licensing system"

Word on the street (actually, word around the FCC) is that the Commission is embarking on a quest for what some might view as the bureaucratic equivalent of the Impossible Dream: an Uber-consolidated on-line licensing system to unify the balkanized collection of existing systems currently in use. This would mean “hello” to a new “Consolidated Licensing System” and “see ya” to the Universal Licensing System (ULS), OET’s Experimental Licensing System, the International Bureau’s “MyIBFS”, and the Media Bureau’s (apparently mis-named, or at least prematurely named) “Consolidated Database System” (CDBS). At this point, it’s not clear whether any other systems – such as the FCC’s tower registration operation – would also be included.

On-line filing – whether it’s used for license applications, routine reporting, or other requests or notifications – is obviously a Good Idea. It streamlines processes, permits easy on-line access to filed materials, facilitates cross-checking and searching, pushes the initial inputting burden onto the applicant (rather than the FCC’s staff), saves paper, and generally makes life better. Oh sure, there have been the occasional complaints about the user-friendliness of, say, ULS (née 1998) and CDBS (née 2000). And yes, some users have carped about how you can’t simultaneously search the various databases for information about a particular entity, or a particular location, etc.

But maybe, just maybe, the FCC has heard those cries of despair and frustration.

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FCC Exiting Auction Bid-ness!!

eBay to Take Over Spectrum Auctions

It’s official!! The FCC has eloped with Internet auction giant eBay, forming a “strategic partnership” under which eBay will run all the Commission’s spectrum auctions. Citing “multiple significant synergistic” benefits, the FCC has turned its auction chores over to eBay, lock, stock and barrel: not only will eBay handle the bidding process, but it will also collect all payments through its PayPal system and even provide pre-auction screening of bidders through its established “feedback” system.

By relieving itself of the considerable administrative headaches of auctioneering, the Commission will now be able to devote more of its scarce resources to developing important spectrum management policies, such as increased monitoring of the completeness of broadcasters’ public inspection files and protecting the public from the all-too-occasional “fleeting expletive”.

In return for pulling the laboring oar in all spectrum auctions, eBay will receive a 20% commission on all auction proceeds collected. Additionally, it has been awarded naming rights to the Commission’s headquarters building (formerly known as “The Portals”) in Washington, D.C. 

According to the Commission, no current FCC staff positions will be terminated as a result of the eBay partnership. The existing staff of the Auctions and Spectrum Access Division of the Wireless Telecommunications Bureau – the folks who have historically handled FCC auction details – will help out with the transition of auction duties to eBay. After that, they’ll use their transitioning skills to help with the DTV Transition, staffing phone banks at the FCC’s Call-In Center and assisting in the installation of digital converter boxes and appropriate rabbit ear antennas. When the DTV Transition has been completed (projected date: 2015!!!), remaining FCC staff members will be assigned to serve on Skype Customer Support lines. Skype is an Internet-based telephone service owned by eBay. (Another benefit of the “strategic partnership”: selected FCC users will get a 0.5% bulk discount on Skype service!)

Some adjustments to the auction process will be necessary. For example, in order to accommodate the 20% commission due to eBay, the Commission will no longer permit the use of “bidding credits”, which have historically reduced the proceeds actually realized by the Commission from spectrum sales. Along the same lines, any bidder who has received two or more “negative” feedback comments in any eBay auction during the 10 years prior to an FCC auction will be subject to a 10% surcharge if it is the successful bidder.

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Pursestrings Update V (or is it VI?): The Party's Over

It’s official (we think) – New application fees to take effect April 28, 2009

Loyal readers have doubtless been on the edges of their seats since the last installment of our “Pursestrings Update” series. (Newbies can catch up by reading our earlier installments here, here, here, here, here,  and here.) We have a new development to report: the Commission has now formally announced that the revised application fee schedule first adopted last September (has it really been that long?) will take effect on April 28, 2009. Mark your calendars (and try to get any applications you’re working on filed by then – the new schedule reflects an across-the-board increase, tracking increases in the CPI).

The new effective date is just about four months later than the effective date which the Commission originally envisioned and indirectly announced. It’s also about three months later than the effective date that was formally announced in the Federal Register. And it’s a bit more than two months after the effective date that was posted, ever so briefly, on the Commission’s “application fee” webpage (and printed in some fee filing guides that the Commission posted, and then removed, from that webpage). 

But what the heck – better late than never. Actually, since the fees are going nowhere but up, the delay has been beneficial for those who have been filing feeable applications since December 30. 

But it does look like we’ve come to the end of the line.

Readers will observe that the latest public notice offers no explanation for the on-again-off-again-on-again-off-again-on-again-off-again effective dates so far. In fact, the notice makes no reference at all to any of that history. That’s probably for the best.

In any event, April 28 appears to be the day. We’ll keep our fingers crossed.

S. 649: The First Step Toward Spectrum Redistribution?

Senate bill calls for “inventory of airwaves” to identify spectrum for more broadband, advanced communications use

With several trillion dollars’ worth of bills stacking up on the kitchen table, the Senate is thinking about searching for quarters under the sofa cushions.

When times get tough around the household, what’s a tried and true way of generating some quick cash? A yard sale, of course. So in these dire economic times, some Senators have proposed – in S. 649, a bill introduced on March 19 – that Congress get ready for a Federal spectrum yard sale by making a list of all the spectrum controlled by NTIA and the FCC.   (The Senators in question are former presidential wannabe John Kerry and co-sponsors Olympia Snowe, Roger Wicker and Bill Nelson.) 

After all, the public picked up $20 billion in pin money from the 700 MHz auction. Maybe lightning can strike twice.

In fairness to the bill’s sponsors, their goal supposedly is to assure that we will all be able to find “additional spectrum” to “meet the growing demands and needs of consumers and businesses alike.”   The bill’s sponsors seem particularly interested in opening up space for more broadband and advanced communications services. But in her statement in the Congressional Record, Snowe correctly observed that “there is no new spectrum to allocate, only redistribute”, which would seem to put the kibosh on the notion of finding “additional” spectrum. So it appears that the sponsors contemplate that spectrum already in use is going to be changing hands – a process which has in the recent past tended to result in payments to the guv’mint.

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Spectrum Tax or Spectral Tax? YOU Make The Call!

The sharp-eyed policy wonks here inside the Beltway spotted a line item in President Obama’s budget proposal called a “spectrum license user fee.” This tax – sorry, fee – would be assessed against users of spectrum blocks that are licensed but not auctioned. These include most AM, FM, and TV, most two-way mobile radio and fixed microwave, and all satellite, amateur radio, and several other categories. Unlicensed spectrum, such as that used for Wi-Fi and Bluetooth, would be exempt. Even so, the new fee is projected to bring in $200 million in 2010, increasing steadily to $550 million by 2019.

Outraged at this extra dip into the pockets of hard-working Americans? We don’t blame you. But don’t call your congressman quite yet. The chances of anybody ever actually paying this fee are small. The reasons have to do with the annual Washington ritual of budget politics.

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Hey Jules!!!

Editors' Note: Let’s be honest. The first day on a new job usually stinks. Everything’s new and different. Everybody’s trying to weasel up to your good side. Big and Important Stuff definitely needs to get done, but right out of the box it can be hard to tell the Big and Important Stuff from the Totally Unnecessary and Possibly Counterproductive Stuff.

As a public service, we here at CommLawBlog have put together a "To Do" List for Julius Genachowski when he arrives on the Eighth Floor of the FCC. (We know he hasn’t been confirmed yet, but who really believes that that’s going to be a problem?)  

But what do we know? The Chairman-Designate would probably benefit even more from suggestions from CommLawBlog readers. We down here in the CommLawBlog bunker merely have our fingers on the pulse of the Regulated Nation; you ARE the pulse of the Regulated Nation.

We’re sure Mr. Genachowski would welcome additional input from the blogosphere for his To Do list. Check out our initial thoughts below, then post your own using the comment box at the end of our list.

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Power to the Parents?

At Congress’s direction, FCC inquires broadly about content-blocking technologies

When Congress tells the FCC to do something, the FCC has no choice: it’s got to follow orders. Back in December, Congress told the FCC to start an inquiry into “advanced blocking technologies and existing parental empowerment tools” so, sure enough, that’s what the FCC has done. On March 2 the Commission released a Notice of Inquiry just like it was ordered to.

The law that got this started – the Child Safe Viewing Act of 2007, which was signed by the President on December 2, 2008 – was not a model of specificity or precision. It directed the Commission to “initiate an inquiry to consider measures to examine”, in effect, the entire range of “blocking technologies” which might be available to “improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent, that is transmitted through the use of wire, wireless, or radio communication.”

Gamely attempting to comply with that near-infinite mandate, the Commission is now seeking comment on content-blocking generally.

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Pursestrings Update IV: The Continuing Mystery of the Disappearing Revised Fees

February 18 has come and gone, and the new application fee schedule which was supposed to go into effect on that day has NOT gone into effect. (By the way, if you want copies of the Commission’s now-you-see-it-now-you-don’t 2009 fee filing guides, let us know – we have a complete set of those bad boys and we’ll be happy to make them available to one and all.)

In response to our February 18 post, we heard from one off-the-record source that the folks charged with updating the on-line CDBS payment process have finished their work, so they’re apparently not the cause of the delay, contrary to our earlier suspicions. We also heard that at least somebody inside the Commission was saying that the effective date had to be postponed from February 18 because of some “legal ‘notice’” (the internal FCC memo reportedly included quotation marks around “notice”) requirement that they supposedly just learned about.

Just learned about? Since we’ve been on this topic like a hobo on a ham sandwich for weeks already – not to mention our original post about the new fees that appeared months ago – that suggests that they haven’t been reading, which hurts us deeply. 

But wait a minute – the Commission did put a notice in the Federal Register about the new fees back in January, which suggests that they do know about the notice requirements. Curiouser and curiouser.

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Pursestrings Update III: Adjusted Fee Schedule Is Apparently NOT Effective February 18, 2009

The latest word is that the adjusted application fee schedule which the Commission adopted six months ago, and which was supposed to go into effect on December 30 -- no, wait, make that January 29 . . . no, no, that’s not it . . . wasn’t it February 18? – will NOT be going into effect on February 18 after all. That rumor appears to have legs because the 2009 Fee Filing Guides – you know, the unofficial items that the FCC quietly posted on its site in early February, as we previously noted – have been equally quietly removed from the site. We checked this morning (February 18) and, sure enough, they had disappeared.

If we had to guess, we’d suspect that the on-going delay may have something to do with revising the automatic fee payment system in CDBS, which has to be adjusted to conform to the new fee schedule. And, of course, we do have to guess, because the FCC has not bothered to announce any of this to the public. So much for governmental transparency.

As a practical matter, the Commission’s delays on this particular front are welcome, as they postpone across-the-board fee increases. But it’s troubling that the Commission seems incapable of dealing with what should be a relatively mundane internal updating process, and it’s troubling that the Commission appears willing to ignore its own orders (e.g., its September Order expressly mandating that the new fees would become effective within a very specific time frame) without public explanation. And it’s even more troubling that the Commission hasn’t elected to let its regulatees – who, after all, are the ones most directly affected by the fee change – in on any of this.

Stay tuned. We’ll try to be your go-to site for Adjusted Fee Schedule updates.

Pursestrings Update II - OMD Says Adjusted Fee Schedule Is Effective February 18, 2009

Unofficial Fee Filing Guides said to trump Federal Register notice

True to our word, we have doggedly pursued the mystery of the effective date of the new application fees. Here’s what we found out.

Back in September, when the Commission adopted the new fees, it specified that “the amendment to the Schedule of Application Fees made herein shall become effective 90 days after notification to Congress.” The FCC then promptly notified Congress and, according to a representative of the Office of Managing Director (OMD), the 90-day waiting period ended on December 30, 2008. Now the FCC’s own language (i.e., “the Schedule . . . shall become effective 90 days” blah blah blah) certainly seems to be self-executing – that is, one might have thought that, once those 90 days elapsed, bingo, the new fees would automatically go into effect.

But no.

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Pursestrings Update: New Application Fees Won't Go Into Effect Until February 18, Maybe

A couple of days ago we reported that the new application fees adopted back in September had, at long last, become effective as of January 29. Our report was based on an order that appeared in the Federal Register on January 29 which specified that the new fees were, in fact, effective on January 29.

We suspected that something might be amiss, though, when the automatic fee calculator in CDBS continued to demand the former (i.e., lower) fees, rather than the newly effective “adjusted” fees, but that could just have been a problem with the CDBS administration.

Now the Commission has indicated that, despite the Federal Register directive, the effective date for the new fees will not be until February 18, 2009. We say that this was “indicated”, rather than “announced”, because the information showed up without fanfare (let alone public notice) on a page deep in the bowels of the FCC’s website. There the Commission posted revised Fee Filing Guides for the various services, with the link to each of the Guides labeled “Effective 2/18/09”. So it looks like February 18 is the official date.

But wait.

On the front page of each of the Fee Filing Guides is a notation which reads “This is an unofficial compilation of the radio services and requests for FCC actions that are subject to fees.”  Unofficial? Does that mean that the Federal Register date – which sure looks official, being in the Federal Register and all – supersedes the Guides? We’re looking into this and will post the answers if and when we get any.

Pursestrings Note: Increased Application Fees Now In Effect

Way back in September we alerted our readers that the Commission had “adjusted” its schedule of  application fees to reflect increases in the consumer price index. (Reminder: The term “adjustment” here is a euphemism for “4.9% across-the-board increase”.) But, as so often happens, the new rates weren’t put into effect right away. Instead, the FCC had to notify Congress of the changes and then sit back and twiddle its regulatory thumbs for 90 days. That process has now run its course, and on January 29, 2009, the Commission published a notice in the Federal Register letting us all know that the new fee schedule took effect as of that notice. Presumably the Commission will eventually get around to issuing revised versions of its Fee Guides for the various services. Until then, all of the revised fees may be found in the schedules included in the 1/29/09 Federal Register notice.

Finding the Harm in "Harmful Interference"

The concept of “harmful interference” is central to FCC spectrum policy. The FCC has never said just what the term means. Oddly, though, that might be a good thing.

Nearly every band of the radio spectrum is shared among two or more categories of users. If we think of the spectrum as being spread out horizontally, the users of each band are stacked vertically. To see how this looks, click here.

Each band has a predetermined pecking order among its users: primary, secondary, and unlicensed. The relationships among all of these turn on harmful interference. Specifically:

  • “Primary” users are protected against harmful interference from all other users.
  • “Co-primary” users – services in the same band jointly designated as primary – may not cause harmful interference to each other.
  • "Secondary” users may not cause harmful interference to primary users, and must accept harmful interference from primary users.
  • Unlicensed users may not cause harmful interference to primary or secondary users, and must accept harmful interference from everybody.

The notion of harmful interference being key to the whole enterprise, we might expect to find a crisp and objective definition in the FCC rules. But when we look, we find something else. It comes in two parts:

In the case of a radio-navigation service (like GPS) or a safety service (police, fire, distress beacons, etc.), harmful interference is anything that “endangers” its functioning.

In the case of any other licensed service, harmful interference is whatever “seriously degrades, obstructs, or repeatedly interrupts” the service.

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FCC Eases Rules for Smaller C-band/Ku-band Stations

Allows focus on off-axis EIRP, rather than signal shape, to open door to smaller, cheaper dishes

The FCC has adopted new rules making it easier to obtain routine and rapid processing of applications for small C-band and Ku-band transmit-receive earth stations. One purpose of the rule change is to facilitate and expedite approval of small earth station antennas that could be used to extend broadband services to rural areas.

Under the prior rules, the FCC routinely approved C-band antennas with a diameter of 4.5 meters or greater diameter and Ku-band antennas of 1.2 meters or more, as they are large enough to shape the beam to avoid spillover signals that could interfere with adjacent satellites. Smaller antennas could be approved, but only after case-by-case scrutiny to make sure that the antenna had no more potential for interference to adjacent satellites spaced two degrees apart than the FCC’s Rules permit.

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Application Fees: Up, Up and Away!

With just about everything else getting more expensive by the minute, why should filing applications with the FCC be any different? And sure enough, on September 22 the Commission announced that it was “making adjustments” to its application fee schedule to reflect changes in the Consumer Price Index. In this case, “making adjustments” is just a euphemism for “4.9% across-the-board increase”. The new fee schedule appears as an appendix to the Commission’s Order. The increases take effect 90 days after the FCC notifies Congress of the changes, so you have at least three months to get applications filed before the price jumps kick in.

Is Interference in Our SDARS or in Our Selves? FCC Seeks Input On New Interservice Interference Criteria

The FCC yesterday issued a Notice of Proposed Rulemaking intended to settle once and for all the long-simmering dispute between Satellite Digital Audio Radio Service (SDARS) licensees and neighboring Wireless Communications Service licensees.  A decade ago, the two satellite broadcasters were allocated 12.5 MHz each of spectrum in the 2300 GHz band in order to provide so-called "ancillary terrestrial service."  This was intended to permit the satellite operators to reach hard-to-serve terrestrial spots by using terrestrial repeaters.  Regular terrestrial broadcasters have long been wary that such "ancillary" operations could easily become a venue for locally directed programming - a key competitive element that distinguishes regular broadcasters from their satellite cousins.  At the same time, the Commission's existing rules have hampered the ability of either SDARS licensees or WCS licensees in the adjacent bands to go into operation without interfering with each other.

The FCC, having received competing proposals from both sides as to how to proceed, has put both proposals out for comment in an effort to come up with technical rules which are workable on a long term basis.  It also is considering placing clear limitations on the ability of SDARS licensees to distribute local programming over their ancillary facilities.  Comments are due within 30 days of the NPRM appearing in the Federal Register.  The NPRM may be found at FCC-07-215A1.doc. 

Taking Precedent Siriusly?

The FCC has asked for comment on whether a statement that it made ten years ago should be deemed a "binding rule" and if so, whether that rule should be changed or waived to permit the proposed merger of the only two U.S. satellite-delivered radio services, XM and Sirius. The notice of proposed rule making (NPRM) may be found here.

If you've been living in a sensory deprivation tank for the last couple of months, you may not have heard that XM and Sirius are proposing to merge. Back in the misty ages of time, when the Satellite Digital Audio Radio Service (SDARS) was barely a glimmer in the eyes of some visionaries - that is, back in 1997 - the Commission had occasion to contemplate the possibility of future consolidation in the SDARS business. At that time, the FCC held in unequivocal terms that "one [SDARS] licensee will not be permitted to acquire control of the other remaining satellite DARS license" (emphasis added).

Fast forward ten years to 2007. There are only two SDARS licensees, and they are proposing to merge into a single entity - precisely what the FCC declared would not be permitted. What about that pesky old prohibition? Not to worry. Echoing the famous words of the pirate Barbossa (in Pirates of the Caribbean: The Curse of the Black Pearl), XM/Sirius argue that the FCC's words weren't really rules, but more what you might call guidelines. And even if they were really rules, they should be waived, or modified, or whatever, in order to let the merger proceed.

The Commission wants to know what the Great Unwashed - that is, anybody who isn't XM or Sirius - thinks about all this. The deadline for filing comments is 30 days after the NPRM is published in the Federal Register; reply comments are due 45 days after FedReg publication.

Let us know if you have any interest in sharing your thoughts on these topics with the Commission.