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

Last minute reprieve gives FCC, EAS participants nine extra months of breathing space

The Commission has announced that the deadline for complying with the Common Alerting Protocol (CAP) requirements has been extended until June 30, 2012. Good thing, too, since the previous deadline was September 30, 2011, a scant two weeks away. Of course, given the number of still unresolved issues on the CAP front, most observers figured that an extension was an odds-on mortal lock, but “most observers” don’t carry quite the same clout as five (or even just three) Commissioners.

If you’re still a little hazy on what CAP entails, check out our post from April, 2010. The fact that all EAS participants are going to have to be CAP-ready eventually has been a given since at least 2007. However, the transition to CAP technology has involved both the FCC and the Federal Emergency Management Agency (FEMA), a lethal mixture when it comes to scheduling anything. Both agencies had to adopt new rules and standards, and before the FCC could do its thing it had to wait for FEMA to do its thing. As a result, while the Commission’s rules currently mandate that “all EAS Participants must be able to receive CAP-formatted alerts”, even the Commission admits that nobody can comply with that requirement just yet, because the Commission still hasn’t finalized the specs which will establish precisely what it means to “receive CAP-formatted alerts”.

The Commission may be on the final lap of its work, but until it hits the finish line, loose ends will remain. Because of that, the deadline for EAS participants to comply has been put off twice already – from the original March, 2011 date to September 30, 2011, and now to June 30, 2012. While that should be plenty of time for the Commission to wrap things up, you never know. Still, for planning and budgeting purposes, all affected folks should probably assume that the June, 2012 deadline will stick this time. We’ll let you know of any further developments.

One word of caution. Since the Commission doesn’t have its new CAP rules in place, it also is not in a position to certify any particular equipment as CAP-compliant. But that hasn’t stopped some equipment suppliers from marketing “intermediate” devices designed to provide some CAP capabilities. With such devices in mind, the Commission has “reminded” all EAS participants that

equipment that meets the definition of an encoder or a decoder under our rules must be certified under Section 11.34 of the Commission’s current rules. In addition, equipment used to receive CAP-formatted EAS alerts must, at a minimum, comply with the CAP requirements the Commission adopted in the Second Report and Order.

Bottom line – anybody that has bought some such “intermediate device” should be sure to verify, with the gear’s manufacturer and/or vendor, that the gear does in fact comply with Commission rules that are already on the books.

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Rumor mill: extension of CAP compliance deadline may be in the works

As the first ever nationwide EAS test rapidly approaches, the Federal Emergency Management Agency has announced another “virtual roundtable” designed to assist the government and industry in prepping for the Big Day (that would be November 9). Here’s the scoop, according to a FEMA announcement:

Please save the date for the final EAS Participant Virtual Roundtable discussion with government and industry leaders on September 30, from 1:30 PM - 3:30 PM ET. The discussion will involve a variety of topics and draft documents for feedback that will support updates to the EAS Best Practices Guide and Nationwide EAS Test Informational Toolkit. Some examples include:

Television and Cable EAS Background Slate

Nationwide EAS Test Message Transcript Draft

Public Service Announcement Audio Sample

Nationwide EAS Test Data Reporting

Required Monthly Test Activities and Findings

Event Details:

What: FEMA IPAWS Special Event - Prepared & Ready: The Final Stretch Before the Nationwide EAS Test When: September 30, 2011; 1:30 PM - 3:30 PM ET

Where: Microsoft Live Meeting 2007 (This link will be active the morning of September 30th) (https://www323.livemeeting.com/cc/eiip/join?id=IPAWS&role=attend)- Please note that if you have Live Meeting Client correctly installed, you do not need a pass code or username (Live Meeting instructions http://www.fema.gov/pdf/emergency/ipaws/livemtginstruct.pdf)

The event will finalize the best practices guide with industry for a formal release on October 3, 2011.

The “best practices guide” mentioned in the blurb is a project designed to produce a comprehensive guide covering end-to-end National EAS message procedures. If you want to learn more about that guide – or even contribute some ideas to it – check out A National Dialogue on the Emergency Alert System. You can also follow FEMA on Twitter (https://twitter.com/#!/NationalEASTest) for information updates and events.

Meanwhile, the September 30 deadline for implementing the Common Alerting Protocol (CAP) is also fast approaching – even though there remain a number of unresolved questions that could affect various aspects of CAP compliance. The Commission signaled several months ago that it might be amenable to extending that September 30 deadline, and a number of groups have specifically requested such an extension. To date, however, no word from the Commission – although some reports indicate that an item granting an extension has been drafted and is sitting somewhere on the 8th Floor. The smart money seems convinced that an extension is indeed in the works and will be announced shortly – but when that may happen, and how long an extension may be provided, well, you just never know. Check back here for updates. (Important Reminder: The nationwide EAS test will proceed on November 9 regardless of the deadline for CAP implementation.)

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As July slips into August, it’s time again to remind television broadcasters that Copyright Royalty Claim forms – for cable retransmission copyright royalties and/or satellite copyright royalties earned during 2010 – are due at the Copyright Royalty Board by August 1, 2011 (since July 31, the normal deadline, falls on a weekend this year). This is your opportunity to lay claim to a share of the annual fund from which television broadcast stations get paid for their programming that is retransmitted by cable and satellite service providers outside of their respective service areas.

In general, TV stations that are carried on cable systems as a distant signal, and those stations that provide programming to other stations that are carried as a distant signal, are entitled to royalty payments.  A cable system is “distant” vis-à-vis a station if the system is: (1) outside the station’s DMA; and (2) at least 35 miles from the station’s city of license; and (3) outside the station’s predicted Grade B contour.  Stations whose programming is carried on satellites to subscribers outside the station’s DMA are also entitled to royalty payments.

The Copyright Office encourages stations to file their Claim Forms online.  The forms can be found at:  http://www.loc.gov/crb/claims/.

If you need our assistance in preparing the forms, please let us know.

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Deadlines for comments on Third Further Notice of Proposed Rulemaking now set: comments due July 20, replies August 4; Nation-wide test set for November 9

The future of the Emergency Alert System (EAS) is here . . . almost. With the release of a Third Further Notice of Proposed Rulemaking (3rd FNPRM), the Commission has raised a welter of questions which, once resolved, should set the penultimate stage between the 20th Century’s Emergency Broadcast System and the 21st Century’s Next Generation EAS (NG-EAS). Perhaps the most important immediate question for broadcasters: should the current September 30, 2011 deadline for implementing the Common Alerting Protocol (CAP) for emergency messaging be extended? (Hint: In view of the number of open questions, the preferred answer is “Yes”.)  The deadlines for comments on that and the rest of the questions posed by the Commission have now been announced.

And on a separate but related note, the date for the long-awaited national EAS test – which we wrote about back in February – has now been set. Mark your calendars: November 9, 2011 at 2:00 p.m. EST. (Everybody take note: that date occurs just after the switch back to standard time.)

The process of converting from old-school, broadcast-centric EAS to a more ambitious NG-EAS, which will feature simultaneous messaging across multiple platforms (including cellular, internet, satellite and cable television providers, as well as broadcast radio and TV), has been in the works for several years. (Check out this post for more details.) The goal is to implement the CAP across the board. CAP is “an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices.”  It’s part of the federal government’s deployment of the Integrated Public Alert and Warning System (IPAWS). 

Plain language: The Commission wants to move emergency messaging from the historic but limited analog approach to a digital system that can take advantage of all modes of electronic communication.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Mediation yields no winner, so back to court we go!

As we reported last month, the Tennis Channel and Comcast initially opted for an off-the-court approach to try to resolve their differences regarding the latter’s carriage of the former. That is, rather than hammer away at each other in front of an administrative law judge, the players chose instead to use the FCC’s alternative dispute resolution (ADR) route. Optimistically, they advised the Commission back in October that they expected to have things wrapped up before Thanksgiving.

And sure enough, they did just that . . . sort of. On November 18 the parties notified the Commission that they had been “unable to resolve” their dispute through mediation. Which means, apparently, that it’s back to the courtroom for all concerned.  (Simultaneously with the joint notice of unsuccessful end of mediation, The Tennis Channel filed its own unilateral notice of appearance advising that it’s all set to go to trial.) 

There’s no word yet on when the next set in this match will start. Check back here for updates.

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

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

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

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

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

The Fast Track Evaluation illustrates a couple of things. 

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Mediation may be completed before Thanksgiving 

Comcast and the Tennis Channel have opted to try to resolve their differences through “private mediation using a third-party neutral selected by the parties.” So if you were planning on camping outside the FCC’s offices in hopes of snagging courtside seats in the FCC’s hearing room to watch a full-blown public hearing, your calendar just got freed up. The parties filed a “Joint Notice” advising the Commission of their decision to go the Alternative Dispute Resolution route. Since the notice was a mere two sentences long, it was somewhat lacking in detail – although Comcast and the Tennis Channel did say that they have agreed to “complete the mediation by November 24, 2010” and that they’ll be sure to let the FCC if they wrap things up before then.

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