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

FCC to host all TV public files in the cloud, once it figures out how to host all TV public files in the cloud

Coming soon to an Internet near you (well, maybe not that soon)!!!  The public files of every U.S. TV station, commercial and noncommercial, all hosted on a cloud-based system that the Commission promises to develop and manage. And radio and MVPD operators can probably expect that they, too, will eventually be required to make their public files available on the same system. In the latest possible culmination of a proceeding that has already lasted more than a decade, the FCC, turning a deaf ear to most of the objections of the broadcast industry, has directed television licensees to upload big chunks of their public files to a yet-to-be revealed web portal the FCC will host.

“Possible” culmination? Well, yes. Those familiar with the recent history of the public file requirement will recall that, in 2007, the Commission mandated that TV public files be made available online. But the Commission never jumped through the hoops that would have been necessary to translate that mandate into regulatory reality. Will this latest effort produce different results? It’s hard to say. The Commission sure seems serious about it, but there are a number of practical problems that could gum up the works, at least in the short term.

For background on the move to make public files Internet-accessible, check out this post from last October. The rules which the Commission has now adopted vary somewhat from the proposal described there, but the core requirements are pretty much the same. In short, TV public files are moving to the Internet (although some vestiges of the old-fashioned paper filing will remain.)

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Audio Division turns up the heat on the practice of “hopping” FM translators

The FM Translator Tango.  Always a complicated dance. Some may have figured that it was a harmless pastime, a no-lose bet with zero downside and nothing but upside. 

They may have figured wrong, as a recent Audio Division letter demonstrates. 

What’s the Translator Tango? It’s the dance in which enterprising FM translator owners hop their stations across significant distances to where they are more useful and more valuable. It’s a slow, gradual dance that uses a series of rule-compliant minor modification applications.  The choreography:  Starting with a construction permit specifying service to Nowheresville, the licensee moves the permit to Better Market. Better Market is invariably far away, so far that, under the Commission’s “major change” rules, the licensee could not ordinarily propose simply to move there in one giant leap. So the dance consists of a series of incremental steps, or hops, each moving the licensee farther away from Nowheresville and closer to Better Market.

Each incremental step involves a number of gyrations. The licensee has to file an application for a new construction permit specifying modified facilities. The Commission has to grant that permit. The licensee then has to construct the modified facilities and file a license to cover them. Then it’s supposed to go on the air from that location. The FCC follows by granting the license. Then the process starts again. Repeat as necessary to get to Better Market. 

We described this process in less terpsichorean terms several months ago. As we reported then, the FCC staff had signaled its great displeasure with the process of moving translators through a series of minor modification applications. You think? In a September 2, 2011 letter, the Audio Division put it about bluntly: “We believe the filing of serial modification applications [for FM translators] represents an abuse of process.” 

Harsh, but perhaps not totally daunting to the die-hard hopper.

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FCC adopts process to assure that Native American tribes get first dibs on commercial FM channels allotted pursuant to Tribal Priorities

For nearly three years the Commission has been working to develop mechanisms to promote new radio stations serving Native Americans. The process has been gradual, to say the least. Starting in 2009 with a proposal to create a Section 307(b) priority for Native Americans, the Commission has taken a series of steps looking to facilitate the entry of “Tribes” (a collective term used by the FCC to refer to federally-recognized Native American Tribes and Alaska Native Villages) into the ranks of broadcast owners.

In the closing days of 2011 the Commission took one more step in that process by creating a short-cut available to Tribes seeking new commercial FM stations primarily serving Tribal Lands. The new approach – which might also create opportunities for non-Tribal entrepreneurs willing to work with Tribal applicants in certain capacities – is designed to assure Tribal applicants the first opportunity to apply for such stations, free from competition from non-Tribal applicants. But the path blazed by the Commission imposes its own considerable set of hurdles.

The short-cut was necessitated by the fact that the allotment process for commercial FM channels is different from the process for allotting AM or noncommercial FM channels. For AMs and noncom FMs, a party who identifies the availability of a channel can get a lock on the channel simply by filing an application for it. In the case of commercial FM channels, on the other hand, the first step in the process merely allots the channel; after that, the channel is made available to the highest bidder at an auction, regardless of whether that highest bidder is a Tribe. 

And there’s the problem.

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Audio Division signals expansion of “minor mod” possibilities, but only in some circumstances; “Serial modification applications” – or “hops” – now officially disfavored.

It’s been a tough year so far for FM translator licensees, who have seemed repeatedly to get stuck at the back of the line – behind, in particular, would-be LPFM applicants – as the quest for spectrum ratchets up. But a decision by the Audio Division appears to loosen at least one of the regulatory provisions that have limited the efforts of existing translator licensees to improve their facilities.

That’s the good news.

The bad news is that the Division has now also explicitly declared verboten a practice by some translator licensees that the Division has historically condoned (if only tacitly) and that the Division concedes has not been (and is not now) prohibited by any specific rule. The now-taboo practice involves the filing of serial applications – or “hopping” – in order to relocate a translator away from its original, usually less-than-desirable smaller community to a distant-but-bigger community.

Let’s start with the back story.

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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 IPAWS@dhs.gov. 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.

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Regulators put the kibosh on effort to re-shuffle radio portfolio through parking trust mechanism

Townsquare Media (TM) thought it had a perfect, and perfectly legal, way to shuffle ownership of a bunch of radio stations in two small Washington state markets and finesse its way around the multiple ownership rules. But the only player at the table that really mattered – that would be the Media Bureau’s Audio Division – called a misdeal.

The result puts a new wrinkle in the use of “divestiture trusts”, a handy device used in large deals to address the occasional loose ownership end that does not fit comfortably within the Commission’s rules. Anyone contemplating the use of such a trust – sometimes known as a “parking” trust, because it permits the parties to “park” inconvenient stations with a trustee – should give this decision careful attention before moving forward.

As with any fancy card trick, this gets a little complicated, so keep your eyes peeled and stick with me.

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AM/FM allotment policies overhauled as Commission looks to discourage relocation of service from rural to urban areas 

If you’re looking to move an AM or FM radio station from a small community to a different, bigger, community, your job probably just got a boatload harder. The Commission has released a wide-ranging decision – technically, a “Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking” (ouch – let’s just call it the Second R&O for short) – in its two-year old “rural radio” proceeding. Unlike the Commission’s first order in that proceeding, the Second R&O tightens up radio channel allotment standards considerably.

Since radio broadcasting began, entrepreneurs have been inexorably drawn to the bright lights (and larger audiences) of big cities. Eschewing the bucolic delights of rural America, entrepreneurial folks have strived to locate stations in or near metropolitan areas. In response, the FCC has strived to keep the metro-bound tide in check. In recent years, though, the regulatory levees have been relatively easy to overcome, leading to a steady influx of channels to metro areas. With the release of the Second R&O, however, the flood barriers have been raised higher . . . much higher.  And, as a bonus, the Commission has made it harder for FM translators to pop in or out of the reserved portion of the FM band.    

First, some background.

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Enforcement Bureau NALs threaten loss of license for abdication of control

The FCC’s Enforcement Bureau has dropped two notices of apparent liability (NALs, in the vernacular) – each to the tune of $15,000 – on Birach Broadcasting Corporation (BBC). According to the NALs, BBC improperly handed control of its two Michigan AM stations over to the stations’ respective time brokers. The FCC also dinged BBC for failing to staff each station’s main studio with a BBC managerial employee and a BBC staff-level employee.  You can read the NALs here and here. If you’re a licensee with one or more stations LMA’d out to other folks, it would be worth your time to check them out.

  BBC’s trouble began in April, 2005, when FCC agents inspected the two stations, one in Zeeland, the other in nearby Rockford. According to the NALs, no BBC employees were present at either station. Instead, non-owners were there pumping out their own programming with no formal time brokerage agreement (“TBA”, a/k/a “LMA”) in sight at either station. Perhaps thinking, incorrectly, that he was helping BCC out, one programmer told the inspectors that the station was being operated on BBC’s behalf “pursuant to a ‘handshake’” TBA.)

Perhaps disturbed by the situation, the Bureau fired off a Letter of Inquiry (LOI) to BBC. (Actually, the Bureau could not have been that disturbed, since it took them not quite two years from the date of the inspections to get the LOI out the door.)  The LOI asked BBC to cough up any written TBAs it had. In response, BBC provided nothing entitled “Time Brokerage Agreement”, just some invoices signed by BBC and the programmers – one of which specified that the “Customer is responsible for any legal problem caused to the Station” – but no TBAs.

As to main studio staffing, BBC said its owner was responsible for operation of the stations. But according to the FCC’s records, that gentleman’s business address was roughly two hours away from the stations. Wouldn’t that, um, impair his ability to run them? No problem, said BBC’s counsel: given the state of technology, station operations can be supervised remotely.  Be that as it may, though, BBC advised the Bureau that, after the inspections, BBC had hired a management-level employee to work half-time at WMFN and half-time at WMJH.  

The Bureau was not favorably impressed with BBC’s response to the LOI.  (But, again, the Bureau could not have been that unfavorably impressed, since nearly three years passed between BBC’s response and issuance of the NALs.)

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Proposed rules would increase FCC restrictions on “robocalls”

You would think marketing experts would realize that making you crawl off your couch to field an unsolicited phone solicitation – especially one delivered via prerecorded message (i.e., a “robocall”) – is a poor way to generate loyal customers. But the practice persists.

Robocalls and other forms of telephone solicitation have been such an irritant that Congress, over the years, has passed several laws to regulate them, giving both the FCC and the Federal Trade Commission (FTC) authority to adopt telemarketing regulations. The two agencies’ regulations generally track one another, but sometimes gaps appear.

The FTC recently amended its rules to tighten the robocall restrictions. The FCC now wants to come into sync with the FTC, and accordingly released a detailed Notice of Proposed Rulemaking. 

You might ask: Why do we need both agencies to adopt regulations? Can’t we just rely on the FTC? Well, you probably could, if things were set up differently. But as it is, the FTC’s jurisdiction to regulate telemarketing, oddly enough, is less than universal: it doesn’t cover common carriers (e.g., telephone companies or airlines) when they are “engaged in common carrier activity”. Similarly, the FTC telemarketing rule does not reach banks, federal credit unions, federal savings and loans, or non-profit organizations. The FCC’s telemarketing jurisdiction, by contrast, covers promotions by all those industries.  Moreover the FCC has jurisdiction over both interstate and intrastate telephone solicitations, while the FTC’s rules cover only interstate telemarketing.

Under the proposed the FCC’s proposed new rules:

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First-come, first-served filing opportunity for rural facilities begins August 25; Nationwide opportunity slated to start January 25, 2010

Ever want to own your own television station? Your chance is just around the corner, as long as you’re willing to start small with a Low Power Television or TV translator station. The FCC has announced that the welcome mat for applications for new LPTV/translator stations (and major changes to existing stations) will be out as of August 25, if you want a rural station; if you’re looking for Bright Lights/Big City action, though, you’ll have to wait until next January.

In a Public Notice released June 29, the FCC announced a two-phase plan for the filing of applications for new digital-only LPTV and TV translator stations (we'll call them LPTVs collectively) and for major changes of existing LPTVs.  Also, any analog LPTVs that didn't pick up a digital companion channel in the last go-round back in 2006 will now get another chance.

Phase 1 begins August 25, 2009, when the FCC will begin accepting, on a first-come, first-served basis, applications for new digital-only LPTV stations, major changes in existing LPTVs and digital companion channels in rural areas only.

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