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

UNLESS and UNTIL you’ve got consent – Section 73.1206 leaves very little wiggle room.

The telephone rule strikes again! Back in February of last year, we thought we made it pretty darn clear that, with very few exceptions, you’re not supposed to record any part of a telephone conversation for future broadcast unless you have first obtained consent from the other party to the conversation. You can look it up – it’s Section 73.1206. And yet, barely three months later, another licensee did just what it wasn’t supposed to do. If only it had paid attention to CommLawBlog.com, it could have avoided a $2,000 fine. Oh well, maybe next time.

Truth be told, this violation was not as bad as some others we’ve seen – including, particularly, the one we wrote about last year. In this case, a station’s morning team called some guy at about 6:00 a.m., possibly to discuss some dispute the guy was involved in. With the recorder running (but not on the air), the announcers ID’d themselves. The guy immediately asked whether he was on the air. No, responded the jocks, but they acknowledged that “[t]echnically you’re being recorded right now.” [Note: Why they qualified that admission with “technically” is not clear, since they were, in fact, recording him. But it was 6:00 in the morning, after all.] The guy astutely advised them in no uncertain terms that he did not consent to the broadcast of his voice.

To which the announcers replied: “Oh bummer”.

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

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

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

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

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

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

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

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

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

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

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You provide the coordinates, the tool provides the channels . . . maybe.

The inexorable advance of the LPFM juggernaut continues. Hot on the heels of two important decisions designed to (a) break the longstanding logjam involving LPFM proponents and FM translator applicants and (b) establish technical standards for the next round of LPFM applicants, the Commission has released a “Low Power FM Channel Finder” tool. If you’re looking for an LPFM channel, your life just got a whole lot easier.

The tool may be found on the Commission’s website. It’s a model of simplicity: all you have to do is enter the coordinates (in NAD 27, thank you very much, and complete to the nearest second), hit the button, and voilà! The tool will provide you with a list of channels potentially useable for an LPFM station at the chosen coordinates. 

The black box innards of the software that allow the tool to work its magic aren’t provided, but that’s probably just as well. What we do know is that it’s set up according to the latest technical criteria established in the recent decisions – including the elimination of third-adjacent channel separations (except to protect stations in Canada or Mexico, or to protect stations carrying radio reading services). The tool also gives you the option of including or excluding channels based on separate requirements for second-adjacent channels and/or Intermediate Frequency (I.F.) channels. While those latter spacing requirements are still technically on the books, the Commission (in the 5th Report and Order) has made clear that it’s open to waiving second-adjacent spacings, and it’s considering eliminating I.F. spacing requirements entirely for LPFMs with less than 100 watts.

Of course, there is no guarantee that any channels will be available at any particular set of coordinates. The fine print on the Finder Tool’s webpage makes that abundantly clear. The fine print goes farther, alerting potential users that even if the tool identifies an available channel, “[t]here is no guarantee that channels represented as ‘available’ will be technically acceptable at the time an application is filed”.

And then there’s this disclaimer (the italics are the FCC's):

Users should be aware that neither the FCC nor the United States Government shall be responsible or liable for any loss, expense, or damage arising from or incident to the use of this program or the underlying data.  This program cannot be used to file an application for an LPFM station or to amend a pending application.  Use of the search tool does not confer any authority to operate a radio broadcast station.

That seems a bit unnecessary. After all, who would think that, simply by running a channel search on the Finder Tool, you would automatically be getting a radio license, or even filing an application?  Perhaps the Commission, having already experienced LPFM applicants in past years, knows something we don’t.

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The Commission struggles to play the hand that Congress dealt it in the Local Community Radio Act

In this our third post in the last week on the subject of recent developments in the regulation of the low power FM (LPFM) service, we look at a number of rule changes proposed by the Commission in connection with its effort to clean up various aspects of that service. That effort, of course, was inspired (and in some respects mandated) by the Local Community Radio Act (LCRA). The proposals in question are contained in the “further notice of proposed rulemaking”  (NPRM) portion of the Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration (5th R&O). They encompass a wide range of LPFM-related topics, many involving considerable complexity. 

We’ll try to hit the high points and make as much sense out of it all as possible, but anyone with a serious interest in the FCC’s LPFM proposals – or in LPFM generally – should be sure to read the full NPRM. Be forewarned, though: the NPRM is not light reading. Keep your NoDoz® handy.

The proposals entail two broad categories of regulations: first, issues arising from the interrelationships between LPFM stations and other stations operating in the FM band; second, issues relating to the process of initially licensing LPFM stations.

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Most, but not all, third-adjacent separation requirements for LPFM stations set to go away as of June 4, 2012.

For those of you keeping score, the third-adjacent channel separation requirements for low power FM (LPFM) stations are about to be history – like they were back in 2000, before they were reinstated in 2001, at Congress’s express direction. But last year Congress had second thoughts, and so it’s “see ya” once again to the third-adjacent protections . . . except that some will still be with us.

As previously reported, the Commission has recently devised a complex Rubik’s Cube approach to sorting out the longstanding stalemate between FM translator applicants and the LPFM Insurgency (since LPFM is by definition a not-for-profit undertaking, it’s hard to call it an “industry”). But that was only part of the FCC’s recent LPFM-related work. In a separate decision – formally titled (deep breath first) the “Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration” (5th R&O) – the Commission has complied with Congress’s “unambiguous” direction and has tossed the on-again-off-again third-adjacent channel separation requirements applicable to LPFM stations.

The resulting rule changes, set out in the “Report and Order” portion of the 5th R&O, have now been published in the Federal Register. That sets the effective date for those changes. Mark your calendars: the changes are scheduled to take effect on June 4, 2012. (The “Further Notice of Proposed Rulemaking” portion of the 5th R&O contains a welter of proposed rule changes. Those have not yet been published in the Federal Register. We’ll address them in a separate post.)

The changes that have just been adopted are relatively narrow. 

In the Local Community Radio Act of 2010 (LCRA), Congress told the Commission to get rid of the third-adjacent minimum spacing requirements between LPFM stations and other FM band occupants (i.e., full-service FM, FM translators and FM boosters). How hard can that be? Just hit the Delete button every time “third adjacent” shows up in the LPFM rules, right?

Not so fast.

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Complex process aims to preserve LPFM opportunities while allowing grants of some long-pending translator apps

In 2003 the Commission opened its doors to new FM translator applicants – and more than 13,000 applications walked in. Now, nearly a decade later, some 6,500 of those applications are still pending. But never fear. With some Congressional prodding (in the Local Community Radio Act (LCRA)), the FCC has knuckled down and devised a complex system for processing the remaining translator applications while assuring that translators will not gobble up all the available spectrum to the exclusion of new low power FM (LPFM) applicants. That system, first proposed last summer, has now been officially adopted in a Fourth Report and Order and Third Order on Reconsideration (4th R&O).

Congress insisted in the LCRA that the LPFM service be treated as “equal in status” to FM translators and boosters. Congress was less clear as to what, precisely, it meant by the phrase “equal in status”. Sorting that out was left to the Commission. The first 14 or so pages of the 4th R&O are devoted to identifying the “broad interpretive principles” underlying the LCRA. Feel free to read through them if you’re interested. For our money, your time would be better spent on pages14-25, particularly starting on page 19. That’s where the Commission explains its “revised translator application processing and dismissal policies” – i.e., how it’s going to cull grantable translator applications without shutting out LPFM wannabes.

It’s not necessarily pretty, and it certainly isn’t easy, but the Commission’s system seems to do the trick, preserving theoretical opportunities for future LPFMs while still allowing relatively prompt grant of more than 1,000 (by the Commission’s estimate) new translators from the applications filed in 2003.

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Court resists FCC efforts to delay judicial review.

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

Then things got quiet.

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

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

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

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

Or maybe not.

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

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

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

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

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

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