One-Week FM Translator Filing Window for Class C and D AM Stations Opens July 26

The long-awaited filing window for certain Class C and D AM stations to apply for new FM translators will open at 12:01 a.m. EDT on July 26, 2017, and will close at 5:59 p.m. EDT (not at 11:59 p.m.) on August 2, 2017.

A second window for eligible Class A and B AM stations (and for eligible Class C and D stations that for some reason do not file in the window just announced) will open at a later date.

The FM translator filing window is in essence an FCC auction.  Indeed, it has been designated as “FCC Auction 99.”  That means most of the FCC’s auction rules will apply to the process.

On June 6, 2017, the FCC released a detailed Public Notice announcing filing instructions for the “Cross-Service FM Translator Auction Filing Window for AM Broadcasters.”  (AU Docket No.  17-143, DA 17-533).  The Commission also announced that between July 19th and the close of the filing window on August 2nd, there will be a temporary freeze on the acceptance of any FM translator minor change applications, Low Power FM minor change applications, and FM booster construction permit applications.  The Media Bureau will dismiss any applications filed during the freeze.

Here’s a brief summary of the June 6th Public Notice, as well as other requirements and restrictions relevant to this filing window. Continue Reading

Major Changes Sought in Nascent Citizens Broadband Radio Service

tower-4The Citizens Broadband Radio Service (CBRS) has not even been born yet, but already major industry players want to change its basic character.  CBRS, as its name implies, was conceived and approved by the FCC a couple of years ago as a broadband service for locally-focused businesses.  The regulatory paradigm included both a large swathe of generally authorized access (also termed “licensed by rule”) channels that would be made available opportunistically to any entity and licensed channels made available on a census-tract basis for generally non-renewable three year terms.  This generated quite a bit of opposition from larger carriers who insisted that the small license areas and short, non-renewable terms would make the band unsuitable for significant investment.  Yet the FCC stuck to its vision for this “citizen”-oriented service and adopted rules which are now effective, though users cannot be up and operating until the spectrum managers begin administering access to the spectrum. (Details on how the spectrum access databases (SAS) will work can be found here.) Continue Reading

NTIA Seeks Comments on Cybersecurity Threats

We’ve previously reported on a drone-related multistakeholder process convened by the National Telecommunications and Information Administration (NTIA), which is part of the Department of Commerce and is responsible for telecommunications and technology policy. For several years, NTIA has considered important policy issues related to emerging technologies through these “multistakeholder processes,” which bring together industry, public interest groups, and other interested parties to develop a consensus position or guidelines – generally non-binding and voluntary – for industry and others to follow. Recent multistakeholder discussions have included drones, the Internet of Things, and cybersecurity.

On the cybersecurity front, NTIA previously sought comment on the subject of “Stakeholder Engagement on Cybersecurity in the Digital Ecosystem,” which in layperson’s terms means “how we can protect data.” That resulted in an initial set of findings, recommendations, and suggested resources put together by the participants. Continue Reading

UPDATE: FCC Announces Deadline for Comments on Proposed Elimination of the Main Studio Rule

In a previous entry, we discussed thefcc building-1 Federal Communications Commission’s Notice of Proposed Rulemaking (NPRM) to eliminate the main studio rule, which requires radio and television broadcasters to maintain a main studio located at or near a station’s community of license.  The NPRM was published in the Federal Register on June 2, 2017, which means that comments regarding the NPRM are now due on or before July 3, 2017, and reply comments are due on or before July 17, 2017.

Please contact Dan Kirkpatrick at (703) 812-0432 or Keenan Adamchak at (703) 812-0415 if you would like to submit a comment in the main studio rule elimination proceeding, or have any questions regarding the potential changes to your station’s compliance obligations as a result of the proceeding.

FCC Imposes $55,000 Fine for Inappropriate Use of EAS Tones

Continuing its historical hard line on misuse of EAS tones, the FCC announced on May 30 that it had settled an investigation with WTLV, a TEGNA-owned television station in Jacksonville, Florida regarding unauthorized EAS tones appearing in an ad for the Jacksonville Jaguars (the local NFL team).  As part of the settlement, TEGNA entered into a Consent Decree in which it agreed to pay a $55,000 fine and to comply with various reporting conditions over the next few years.  Continue Reading

FCC Looks to Modernize Media Regulations

police-warning.kozolLast month, the FCC launched a new proceeding with an extremely broad goal of modernizing its media regulations.  The very brief (less than three page) Public Notice launching the proceeding, which Chairman Pai previewed in his speech at the NAB Show in Las Vegas, asks for comment on almost any media regulation considered “outdated, unnecessary, or unduly burdensome.”  The Notice requests comment from broadcasters, cable operators, and satellite television providers, and applies to almost all regulations effecting the media industry.  Notably, however, the Notice carves out from comment here media ownership rules, which are subject to quadrennial review under the Communications Act, and video accessibility rules, which the Notice points out were just revised under a complex legislative mandate.  Other than these two areas, it seems that any aspect of media regulation is open for review in this proceeding.

In addition to the broadcasters and multichannel video programming distributors (MVPDs) specifically noted in the Notice, other entities with an interest in the media industry may want to monitor this proceeding as well.  Among the rule sections the Commission identified as those most applicable to the proceeding were Parts 15 and 17 of the Commission’s rules, which govern radio frequency devices and antenna structures (i.e., towers), respectively.  Any changes to those rules could clearly have impacts on players well outside the traditional media industries.

Where this proceeding ends up is a rather open question, as its scope is so potentially broad.  It is almost certain to draw significant comment, as almost every regulatee in the media fields probably is eyeing at least a few regulations they would like to see repealed.  Comments in the proceeding (MB Docket No. 17-105) are currently due on July 5, and reply comments on August 4.  We will continue to monitor the proceeding and keep you updated.  Please contact us if you are interested in participating.

FCC Proposes 2017 Regulatory Fees

Just in time for the unofficial start of summer, the FCC has issued its 2017 Regulatory Fee Notice of Proposed Rulemaking (NPRM), beginning a process that culminates with the payment of regulatory fees sometime between late August and the end of September.
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Small Break for Hobbyist Drone Operators: D.C. Circuit Tosses Aircraft Registration Rule

fhh drone-3FAA Violated Clear Language of the Law

The United States Court of Appeals for the D.C. Circuit last week, in Taylor v. Huerta, determined that the FAA’s registration rule cannot apply to small unmanned aircraft (aka, sUAVs, or drones) operated for recreational purposes.

Drones operated for recreational purposes, which FAA terms “model aircraft”, are defined by the FAA Modernization and Reform Act of 2012 (the “Act”) as “unmanned aircraft that [are] – (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”

As we’ve reported, the registration rule, adopted by the FAA in 2015, requires that owners of model aircraft register with the FAA, and imposes civil and criminal penalties (including prison time) for those model aircraft owners who don’t comply.

John Taylor, a model aircraft hobbyist in the D.C. area, challenged the registration requirement (as well as an Advisory Circular, discussed below) on the basis that the FAA lacked the authority to issue the rule. Much to his delight, and likely the Court’s, this was one of the simplest cases of statutory interpretation the Court has ever seen. In a few short paragraphs, the D.C. Circuit determined that adoption of the rule was in violation of Section 336 of the Act, which directly prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.”

Taylor’s Advisory Circular challenge was less successful. Advisory Circular 91-57A, which the FAA revised in 2015, provides that model aircraft can’t fly within the Flight Restricted Zone covering Washington, D.C. and the surrounding areas without specific authorization. For those living in the D.C. area, these flight restrictions really limit the fun, forcing sUAV pilots to drive far out of the city to find lawful airspace. Taylor argued, among other things, that the Circular violates Section 336(a) of the Act because it, too, is a rule regarding model aircraft. Unfortunately, Taylor missed the bus (or should we say aircraft) on this one. The Court did not even reach the merits of the claim, instead throwing it out as untimely. (A person seeking to challenge an FAA order must do so within 60 days of the order’s issuance. Taylor, however, didn’t file until more than two-months after the 60-day deadline had passed.)

So, to all the amateur model aircraft operators out there, fly on. But if you’re local to us in the D.C. area, just be careful where you do it.

FCC Begins Rollback of Net Neutrality Rules

On May 23, 2017, the Federal Communications Commission released a Notice of Proposed Rulemaking (NPRM) proposing the reversal of the agency’s 2015 Title II Order which subjected Internet service providers (ISPs) to regulation as telecommunications services pursuant to Title II of the Communications Act of 1934, as amended.

In a 2-1 vote along partisan lines, the Commission proposed rolling back the net neutrality rules based largely on the grounds that the Title II regulatory framework for ISPs has dramatically decreased broadband infrastructure investment.  Instead, as stated by Chairman Pai, the repeal of the “utility-style regulation of the Internet” would enable a return to the “Clinton-era light-touch framework that has proven to be successful” in encouraging investment and innovation in the Internet.  However, reflecting the highly partisan nature of the decision, Commissioner Clyburn opposed the adoption of the NPRM on the grounds that she had “yet to see a credible analysis that suggests broadband capital expenditures have declined” since 2015, and over concerns regarding the anti-consumer effects of repealing the net neutrality rules.

Proposed Changes

The Commission proposed the following changes to the net neutrality regime in the NPRM:

  • Reclassification of Broadband Internet Access Service Providers. The Commission proposed to reclassify broadband Internet access service (BIAS) providers as information service providers regulated pursuant to Title I – as opposed to classifying such providers as telecommunications service providers regulated under the more burdensome provisions of Title II.  The proposal to reverse the regulatory classification of BIAS providers was based on three factors:  (1) the plain meaning of the definitions of “information services, ” “telecommunications,” and “Internet access services” in the Act; (2) pre-2015 FCC precedent reflecting a bipartisan consensus favoring regulation of Internet access services as information services; and (3) studies indicating that Title II regulation of ISPs has “depressed broadband investment and reduced regulatory innovation” due to increased regulatory burdens and uncertainty.
  • Reclassification of Mobile Broadband Internet Access Services. The FCC proposed to reduce regulatory burdens on wireless Internet services through the reclassification of mobile BIAS as private mobile services – as opposed to being classified as commercial mobile services.  Relatedly, the Commission also proposed to reinterpret the meaning of “public switched network” under Section 332(d)(2) of the Act to focus only on the traditional public switched telephone network to prevent mobile BIAS from being considered the “functional equivalent” of commercial mobile services – while otherwise being classified as private mobile services.  The Commission stated that reclassification of mobile BIAS would “substantially benefit the wireless marketplace and consumers and have few, if any, policy disadvantages.”
  • Elimination of the FCC’s Authority over ISP Privacy Practices. The Commission proposed to “respect the jurisdictional lines drawn by Congress” providing the Federal Trade Commission with authority over ISP privacy practices given the FTC’s “decades of experience and expertise in this area.”  The FCC stated that it was compelled to cede all of its authority over ISP privacy practices to the FTC due to Congress’s rejection of the 2016 Privacy Order pursuant to the Congressional Review Act.
  • Elimination of the Internet Conduct Standard. The FCC proposed to eliminate the Internet conduct standard, which allows the Commission to prohibit practices that unreasonably interfere with or disadvantage the ability of consumers to access Internet content.  The Commission stated that the standard was too vague to administer successfully, and was based on “theoretical problems” requiring ISPs to “guess at what they are permitted and not permitted to do.”  In keeping with the NPRM’s deregulatory approach, however, the Commission did not propose an alternative approach to monitoring the conduct of ISPs – elsewhere suggesting the regulation of ISPs through either self-governance or an ex post enforcement mechanism.

Additionally, the Commission proposed the review of the following elements of net neutrality:

  • ISP Bright-Line Rules. The FCC requested comment on whether to keep, modify, or eliminate the bright-line rules regarding ISP conduct (e., no blocking, no throttling, no paid prioritization, and transparency rules).  In supporting the need for the review of the rules, the Commission contended that there was “virtually no quantifiable evidence of consumer harm” which the rules sought to prevent, and reasoned that the rules were unnecessary in light of the fact that existing antitrust regulations sought to curb the anticompetitive conduct prohibited by the regulations.
  • Ex Ante Enforcement Approach. Relatedly, the FCC questioned in the NPRM whether the agency’s ex ante enforcement approach to broadband regulations was necessary.  Instead, the Commission requested comment on whether either self-governance by ISPs or an ex post enforcement framework would serve as a sufficient enforcement framework for the broadband industry under a Title I regulatory regime.


Although the Commission proposed the elimination of many aspects of net neutrality championed by the Wheeler administration, the agency proposed to maintain Lifeline support for broadband services and facilities.  Citing its previous decision in the 2011 Universal Service Transformation Order, the Commission reasoned that Section 254 of the Act enabled the agency to continue universal service support for broadband services and facilities following the reclassification of ISPs as information services.

Legal Authority

Finally, the Commission requested comment on the legal basis for the rollback of the net neutrality rules – specifically whether Sections 706 and 230 of the Act provide sufficient authority for such an action.  The Commission questioned whether the agency should continue to maintain the post-2010 interpretation of Section 706 (i.e., that the section provides the FCC with an express grant of rulemaking authority in the area of BIAS), or return to the pre-2010 hortatory understanding of the section – therefore requiring the Commission’s legal authority to be based elsewhere in the Act.  Likewise, the Commission requested comment on whether Section 230 permitted the FCC to retain any rules adopted in the Title II Order by providing the agency with express statutory authority over BIAS.

Cost Benefit Analysis

Seemingly reflecting upon the emotionally-charged atmosphere surrounding the review of the net neutrality rules, Commissioner O’Rielly requested that commenters in the proceeding support their arguments for and against the rollback of the Title II Order by providing evidence substantiating their claims.  As such, the Commission proposed to conduct a cost-benefit analysis (CBA) regarding the rollback of the net neutrality rules – which is to be presumably based on quantifiable data provided by commenters.  In conducting the CBA, the FCC proposed to follow the Office of Management and Budget’s standards for “Identifying and Measuring Benefits and Costs.”  Nevertheless, the Commission questioned whether there were any concrete benefits to preserving the current net neutrality regime.

Comments in the proceeding are due July 17, 2017, and Reply Comments are due August 16, 2017.

Please feel free to contact our firm should you be interested in submitting comments in the proceeding, or have questions regarding the regulatory changes for ISPs proposed in the NPRM.

The Commission Extends Transition Progress Reporting Requirement to Non-Reimbursable Stations

Last week, the Commission adopted transition progress reporting requirements for broadcast television stations that will be changing channels during the post-incentive auction transition, but that are ineligible for reimbursement from the TV Broadcast Relocation Fund. The Commission had already decided back in January that TV stations eligible for reimbursement from the Fund would be required to report their progress by detailing the status of their construction and how they have spent reimbursement funds.

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