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

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 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.

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

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

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

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

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

Don’t necessarily believe it.

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

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

Not. 

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

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

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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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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 CommLawBlog.com for updates.

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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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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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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.

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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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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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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.

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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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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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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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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.

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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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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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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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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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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 CommLawBlog.com, 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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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.

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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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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.

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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.

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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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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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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.

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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. 

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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.

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