FCC Drops 40-Mile FM Translator Siting Cap for AMs

tower-4As anticipated, the FCC adopted at its February 23 meeting a rule change to ease FM translator siting restrictions for AM owners. (The FCC signaled previously that such a change was forthcoming by releasing a draft decision three weeks before the meeting at which the item was voted upon. That release was part of an experiment to increase transparency in the agency’s rulemaking process led by new Chairman Ajit Pai.) The rule change, enacted through the “Second Report and Order” (2nd R&O) in the AM revitalization docket, concerns only where an FM translator used as an AM fill-in may be located. The Commission states in the document the agency has now opened and closed two filing windows in which more than 1,000 applications were granted so AM owners could acquire and move FM translators to increase their signal coverage. Because of the strong need for siting flexibility, the FCC acted on this proposal now. Action on other AM revitalization proposals will come later.

Under the previous rule, an FM translator rebroadcasting an AM station must be sited so that the 60 dBμ contour of the FM translator is contained within both (a) the 2 millivolts per meter (mV/m) daytime contour of the AM and (b) a 25-mile radius centered at the AM transmitter site. Continue Reading

ATSC 3.0 NPRM Adopted

ATSC logo-1The FCC has adopted its anticipated Notice of Proposed Rule Making looking toward allowing television broadcasters to transition from the present ATSC 1.0 technical standard to the new, recently developed ATSC 3.0 standard. ATSC 3.0 is Internet Protocol (IP) based and offers many potential benefits, including both multiple broadcast streams and non-broadcast IP services; but it is not compatible with existing receivers, so viewers will have to buy add-on devices or new TV sets to receive the new services.

The transition will be completely voluntary. No station will have to convert to ATSC 3.0, and no multi-channel video program distributor (MVPD, cable or satellite) will have to carry an ATSC 3.0 signal under must-carry rules. The FCC has also tentatively concluded that it will not mandate that ATSC 3.0 reception capability be built into television receivers.

However, the FCC has proposed some roadblocks that impose burdens that may keep some broadcasters from making decisions in a completely free marketplace.

First, and most importantly, every TV station that converts to ATSC 3.0 will be required to continue to provide ATSC 1.0 service. Because a given facility can broadcast in only one standard, that means that ATSC 3.0 cannot be implemented unless the converting station enters into an agreement for carriage of its programming in ATSC 1.0 by some other station that is not converting; in other words, some stations have to stay behind for a while and be willing to host their competitors. (Duopoly owners, however, could potentially operate one station in each standard, avoiding the need to negotiate with, or involve, third parties). No station will be required to agree to serve as an ATSC 1.0 host, nor will the FCC regulate how much the host station may charge for its services or whether it may charge different amounts to different stations.

Second, MVPD must-carry rights will apply to only the ATSC 1.0 service. The FCC asks whether it should permit TV stations that have elected retransmission consent to demand ATSC 3.0 carriage as part of their negotiations with MVPDs. Since most TV stations deliver their signals to MVPDs over fiber or microwave in an IP format that is neither ATSC 1.0 nor ATSC 3.0, we are not sure why the FCC is so concerned about this issue, other than the fact that they have been pressured by MVPD interests to block broadcaster pressure to carry ATSC 3.0 streams.

Finally, stations will be obligated to undertake, and absorb their own costs for, a consumer education program with announcements warning viewers about the migration of their ATSC 1.0 service to another station.

The FCC is concerned that viewers not lose any services they now enjoy, so requirements for children’s programming requirements by full power and Class A stations and local programming by Class A stations will apply to ATSC 3.0 broadcast streams. This new concern about loss of service to the public contrasts rather starkly with the position the FCC took during the recently concluded incentive auction that there would be no harm to the public if a community were left with no public television, or no television station at all, as a result of station shut-downs after the auction. (In the end, few enough stations were bought in the auction that it is not likely that any community will be left without any service.)

The Commissioners have expressed considerable excitement about the potential of the new technology, including hyper-local content directed to sub-zones of a station’s service area and the numerous benefits of IP format transmission. However, they may not recognize some of the complexities they have put on the table. For example, concern was expressed over loss of high definition (HD) ATSC 1.0 service. If stations convert to ATSC 3.0 and move their ATSC 1.0 service to another station acting as a host, there may not be enough room for continuation of ATSC 1.0 services in HD rather than standard definition (SD) format, because one station can normally accommodate only two HD streams. In addition to technical concerns, compressing signals onto a single ATSC 1.0 host will create business issues that will need to be worked out between stations and their program providers (e.g. networks and syndicators). Moreover, Commissioner Clyburn expressed concern about the loss of diverse programming now carried on ATSC 1.0 subsidiary streams (dot 2, dot 3, etc.). Will the FCC require all ATSC 1.0 streams to be moved to a host station? If so, there will likely not be room for all the streams, and the conversion to ATSC 3.0 will be stymied.

The draft NPRM that we saw included Class A and low power television (LPTV) stations in the proposal, rather than leaving those stations out of the transition until later (LPTV was left out of ATSC 1.0 digital transition until after full power rules were in place). However, the problem of finding a host for ATSC 1.0 service may be more difficult for LPTV stations than for full power stations, as not all communities have enough LPTV stations to serve as hosts to accommodate many streams, and many LPTV stations transmit 4 or more program streams that would be too numerous to accommodate on a host station in anything but a low-grade SD format.

In other words, the FCC is not really ready to let television evolve in a completely free marketplace. But with the recent resurgence of over-the-air viewing, and the ability of ATSC 3.0 to reach ever more pervasive mobile receivers, should the TV industry instead be left completely free to use their best judgment all around? Will the demands and preferences of viewers and advertisers act as sufficient constraints to allow the FCC to take a fully “hands-off” approach? These questions and others will undoubtedly be addressed in comments on the NPRM.

The deadline for comments in GN Docket No. 16-142 will be known when the NPRM is published in the Federal Register.

If you have any questions about the FCC’s proposals or the potential benefits and detriments of converting to ATSC 3.0, FHH attorneys stand ready to help.

Wi-Fi Holds its Breath as FCC OKs LTE-U

wifi-in-tsunami-1Wi-Fi is one of the great technological successes of our age. It gives fast, reliable data transmission by anyone for any purpose. No FCC license is needed. No single provider controls the technology. The equipment is inexpensive and available in a large, competitive marketplace. It almost always works.

Was it too good to last?

We explained a year ago that carriers want to move traffic off their expensive auctioned frequencies and onto the same free-of-cost, and unlicensed, frequencies that Wi-Fi uses. We kept you current on the process of setting standards for the various technologies the carriers want to use, to include LTE-U, LAA, and MulteFire – see here and here – including the controversial issue of whether LTE-U would interfere with Wi-Fi.

Interference to Wi-Fi? Isn’t that illegal? Prepare to be surprised. The convenience of Wi-Fi being unlicensed has a cost: no unlicensed technology has any legal protection from interference. (We’ll pass over a minor exception.) The FCC regulates the power and other properties of unlicensed equipment to make sure it doesn’t interfere with licensed services. The very smart people who invented the Wi-Fi standards, and who design other devices for the same bands (like Bluetooth), are careful about coexistence, which is why all this equipment usually works well together. But coexistence is not a factor in whether the FCC will certify a device for sale as being compliant with its rules.

The FCC has now issued its first certifications for LTE-U devices. (The first LAA devices, a tad less controversial as to their ability to co-exist, were approved months ago.) The announcement reiterates that coexistence with other unlicensed devices is not an FCC requirement. But it mentions that the new devices were successfully evaluated for coexistence under a test plan worked out by industry – in this case, LTE-U and Wi-Fi stakeholders under the auspices of the Wi-Fi Alliance. That last is the group responsible for making sure that Wi-Fi-branded devices all connect to each other properly.

The real test of coexistence between Wi-Fi and LTE-U begins now, in the millions of homes and offices that rely on both Wi-Fi and cell phones to stay connected.

Mobile Now Legislation, Moving Along

capitol-unlicensed search-1High-stakes spectrum lobbying gears up

Last year, we reported on the proposed Mobile Now Act, the darling of U.S. Senators John Thune (R-S.D.) and Bill Nelson (D-FL), the Chairman and Ranking Member of the Senate Commerce Committee, respectively. The bill aims to encourage broadband deployment. At that time, we noted that the Act had a chance of being one of the few non-routine pieces of legislation to be approved in the last Congress. While it ultimately died, the Act has been teed up again by the Senate Commerce Committee, and we think that it has a good chance of being passed this year.

The current version is substantially the same as last year’s, with provisions to open more federal spectrum to both licensed and unlicensed commercial users in various frequency bands. As we highlighted last year, the legislation notably addresses:

  • Making up to 500 MHz of spectrum available for wireless broadband;
  • Considering permitting mobile or fixed wireless operations on mmWave federal spectrum;
  • Opening 3100-3550 and 3700-4200 MHz for shared (federal and non-federal) use; and
  • Providing for unlicensed use of newly formed guard bands.

Additional provisions to facilitate broadband deployment include improving access to easements, rights of way and leases on federal property, and providing “relocation incentives” to pay federal users to move to different frequency bands.

The cellular industry and others looking to make big plays in the Internet of Things will be pushing this legislation along.

As with most legislation this year, there is uncertainty as to the impact of the new administration on the Hill’s agenda. While Congressional Republicans are certain that they will be able to adopt much more legislation with a Republican in the White House, it is unclear what type of support this type of legislation will receive. For one, the legislation would require a good deal of work by a host of federal offices and agencies, including the Departments of Commerce and Transportation, the Federal Communications Commission, the Office of Management and Budget, and even the Government Accountability Office. And, it would require new regulations. Since this work is at odds with the President’s agenda of freezing new regulations, reducing government spending and cutting the federal workforce, the ultimate fate of the legislation, even if adopted, is not clear.

Upcoming FCC Broadcast, Telecom Filing Deadlines

Do you know what upcoming FCC filing deadlines now and through early April apply to you? We do. Note our list is not comprehensive. Other proceedings may apply to you. Please do not hesitate to contact FHH if you have any questions. 

March 1, 2017 – Local Telephone Competition and Broadband Report – Facilities-based providers of broadband services to end-users must report certain broadband deployment data on FCC Form 477.

March 2, 2017 – Implementation of Data Security Practices – Deadline for implementing new data security practices adopted by the FCC in the November 2, 2016 Report & Order titled In the Matter of Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, WC Docket No. 16-106, FCC 16-148.

March 8, 2017 Comments are due March 8, 2017, and reply comments due April 7, 2017, in the FCC’s small cell deployment rulemaking, WT Docket No. 16-421.

March 31, 2017 – Section 43.62 International Traffic and Revenue Reports – Certain Section 214 licensees and Interconnected VoIP service providers must report circuit capacity data for the preceding calendar year. Reporting requirements applicable to:  (1) any facilities-based common carrier with active satellite or terrestrial circuits between the United States and a foreign point; (2) any non-common carrier satellite licensee with active circuits between the United States and a foreign point; (3) any licensee of a submarine cable between the United States and a foreign point; or (4) any common carrier with capacity on a submarine cable between the United States and a foreign point. Continue Reading

Second Circuit Gives Belated Valentine’s Day Gift to Music Licensees by Ruling for Sirius XM Regarding Its Use of Pre-72 Sound Recordings

turtle-siriusXM-3We previously told you about the Christmas gift that New York’s highest state court had given to licensees that play “oldies” recordings by finding that the owners of those recordings had no right to demand payment when the recordings were publicly performed in New York.  That ruling came in one of many lawsuits that Flo & Eddie – a company owned by two members of The Turtles (of “Happy Together” fame) – had filed against Sirius XM Radio challenging Sirius XM’s use of sound recordings created before February 15, 1972.

[Recall that February 15, 1972 is a magic date because sound recordings fixed on or after that date are protected by federal copyright law.  Sound recordings fixed before that date are protected – if at all – under the widely varying state copyright laws, with state-law protection expiring on February 15, 2067.]

The Second Circuit has now followed suit by giving licensees a belated Valentine’s Day gift – it has found for Sirius XM on each of Flo & Eddie’s claims, which ends Flo & Eddie’s New York lawsuit. Continue Reading

Incentive Auction: Carrier Bidding Gets Specific

FHH has been following the FCC’s broadcast incentive auction, see the latest stories here and here. Now the auction moves to the next stage — where wireless participants will bid on specific spectrum blocks. This next step, which the Commission calls “assignment phase bidding” begins on March 6th.

The 600 MHz band plan is designed to provide both large and small bidders a fair opportunity to acquire spectrum; it consists of paired uplink and downlink bands offered in 5+5 megahertz blocks across 416 market areas called Partial Economic Areas [“PEAs”].

Bidders that won at least one generic block of paired spectrum in one PEA in the clock phase of the forward auction can take part in the assignment phase, according to the Public Notice  released this week by the Incentive Auction Task Force and the Wireless Telecommunications Bureau. Eligible companies can download their bidding options, which correspond with their earlier bids, from the agency’s website on February 21st.  The FCC will send bidders a link so they can log in to the assignment phase bidding system for a preview period. That way, they can also see the sequence and timing rounds for all PEAs, and decide what specific bidding rounds they want to participate in.

All the spectrum blocks are Category 1, which means they have minimal or no impairments under the band plan associated with the 84 megahertz clearing target, so the FCC can assign every winning bidder contiguous blocks of frequency-specific licenses.

The FCC is giving wireless bidders time to figure out the auction quirks. There will be a practice bidding round on February 22 and a mock auction on February 28. In the meantime, the agency has put together an online bidding tutorial; find that under the “Education” section of the Auction 1002 website: (www.fcc.gov/auctions/1002.)

The first round of bidding begins on March 6th, and is scheduled to end by March 30th. The news means a notice concerning what stations broadcasters sold and how much money they will receive will come out of the Commission in early April — before the NAB show later that month.




Better Legal Protection for Emails?—My Fault That It’s Needed

A bill moving through Congress would require a warrant to access the contents of an email, even an email more than six months old.


You read that right. Today’s law says the police need a warrant to read your newer emails. But as soon as one has been on the server for 180 days, they can use alternative procedures. There’s no need for a judge to find probable cause. 

Who would ever write such a stupid law?

Uh, that was me. Quoting the father of Star Trek’s Mr. Spock, when asked why he, a hyper-rational Vulcan, had married a human woman: “At the time, it seemed the logical thing to do.”

Here’s what happened.

The current law, the one I worked on, was enacted in 1986. There was, as yet, no public Internet. Specifications for the World Wide Web did not appear until 1989, and the first successful browser came in 1993. In the mid-1980s, though, businesses were transmitting fast-increasing amounts of data. When modems over voice lines became inadequate, AT&T and its long-distance competitors built packet-switching networks to move more data more quickly. Continue Reading

.RADIO Domain Names Available Soon, But Many Unanswered Questions about Availability

After many years of preparation, the roll-out of .RADIO domain names will finally be underway shortly. The news has potential for broadcasters worldwide (for example, you could have Nashvillehits.radio as your URL.) Yet there are many unanswered questions about how .RADIO domain names will be allocated and what happens when multiple parties want the same name. This article provides an overview of the history of the .RADIO ownership disputes, new dates recently announced by the European Broadcasting Union (EBU), and questions that the EBU still needs to answer about the .RADIO domain name roll-out ahead.

Quick Background

In 2012, the EBU applied to the Internet Corporation for Assigned Names and Numbers (ICANN)  for the rights to operate .RADIO (ICANN manages the Domain Name System and assigns Generic Top Level Domains, such as .RADIO, by contract). Three other applicants for .RADIO sought .RADIO: large top level domain name registries Afilias and Donuts, as well as George Bundy’s BRS Media (well known for its management of.FM and .AM). It took four years of fighting but, on May, 18, 2016, EBU won when its competitors withdrew their objections against the EBU’s .RADIO application.

The main reason that the EBU won (or “prevailed in the contention set,” per ICANN lingo) is because it was the only registry to apply for .RADIO as a “Community-based” Top Level Domain. This is a special category of applications created by ICANN to allow representatives of well-known, well-contained communities to offer domain names designed to closely serve those communities. In its application to ICANN, the EBU promised to make .RADIO into “a platform through which radio broadcasters and other radio industry stakeholders worldwide will collaborate to promote audio content distribution and community-wide services, promoting quality and competition in the public interest, for the benefit of listeners and Internet users.”

The EBU promised to serve not only its own European members, but the worldwide broadcasting community. In fact, the EBU submitted its application with the support of worldwide broadcasting organizations, including NABA (North American Broadcasters Association).

New Information

The EBU recently issued a new webpage laying out its plans for .RADIO domain name launch. There are three key issues of note to interested broadcasters (and others who might be eligible for .RADIO):

Registrants — Who will be allowed to register a domain name in .RADIO?

The EBU writes that it will accept certain categories of radio use for .RADIO domain name registration, specifically:

  • “Radio broadcasting stations”
  • “Unions of Broadcasters,” such as the EBU itself
  • “Internet radios”
  • “Radio Amateurs”
  • “Radio professionals (journalists, radio hosts, DJs, …)” and
  • “Radio-related companies selling radio goods and services.”

Thus, all U.S. broadcasters licensed by the FCC (and others involved in the radio industry, including individuals) will be eligible to submit their call signs to EBU for a .RADIO domain name.   BUT NOTE: this does not mean U.S. broadcasters will receive these domain names (as per the discussion below)

When will the .RADIO domain names be available?

The .RADIO domain names will actually be made available in two stages: (1) a planned “pre-launch period” exclusively for radio stations and (2) a second stage for other eligible parties.

The EBU plans a special “Pre-Launch” period from May 3 to July 5, 2017, though ICANN approval for this proposal is still pending. During this pre-launch period, registration will be by a special process.  Rather than use the tried and true “first-come, first-served” method we see in .COM and so many other generic top level domains,. the EBU will try to balance various interests around the world and allocate domain names to “Official Radio Operators”. As the EBU (vaguely) explains: “The .radio team will seek to optimize domain name allocation to solve contentious issues and prioritize existing radio services. The pre-launch is exclusively reserved for radio stations.”

This .RADIO Pre-Launch allocation process could raise serious problems for U.S. broadcasters. If the call sign allocation pattern of other countries is the same (or similar), multiple stations around the world may want the same domain name, e.g., WXYZ.RADIO. To whom will the EBU register the domain name?  We asked EBU representatives whether other counties have similar call sign allocation patterns, and what will happen when two broadcasters in two different countries with two different licenses seek the same domain name? No answers have been forthcoming. We will continue to ask, investigate and provide insight and answers.  Radio stations interested in participating in the pre-launch should be prepared for anything and should consider consulting an attorney with experience in ICANN matters.

The EBU is planning to have a second part of the pre-launch rollout from Augsut 20 to November 1, 2017.   Domain name registrations will be open to: unions of broadcasters, Internet radio, radio amateurs, professionals and companies and trademark owners (the latter being a specially protected group under ICANN rules.)

We will share additional details on both phases as the plans become approved and clarified.

How much will .RADIO domain names cost?

While domain names in the “new generic top level domains” of .MEDIA, .PHOTO, .CAR and .FLOWERS are generally higher than the original generic top level domains (.COM, .ORG and .NET), domain names in .RADIO will be higher still. EBU’s website states that “for companies, we expect typical prices between 200€ and 250€ per domain each year.” That’s $213 to $267 a year.

CommLawBlog will continue to monitor the roll-out of .RADIO domain name and seek answers to important questions U.S. broadcasters will need to know. Please don’t hesitate to contact us with any questions.


Renewed Push for FM Class C4

What may happen to the petition to create an FM Class C4 designation under FCC Chairman Pai’s leadership? Readers may recall SSR Communications CEO Matthew Wesolowski and the Minority Media and Telecommunications Council petitioned the FCC in 2013 to add a new FM class in between Class A and Class C3. The proposed class would feature maximum ERP of 12 kW and maximum antenna height of 100 meters.

“The 12 kW Class C4 allocation would fill in the gap of the currently incompatible maximum effective radiated power relationship between FM Class A and FM Class C3,” said station owner Wesolowski, who’s also an engineer, in his petition. “Every adjacent FM ‘C Class’ allocation’s power level is 3.0 dB from the next (C3 to C2, C2 to C1, et cetera), while Class C3’s 25 kW is slightly more than 6 dB higher than Class A’s 6 kW. A 12kW authorization would be about 3.0 dB between either A or C3.”

Last fall, Commissioner Pai spoke at the NAB Radio Show about the concept, saying he thought the idea is worth considering. “An NPRM would allow us to ask the right questions, explore the advantages and disadvantages of the proposal, and receive the views of all stakeholders,” Pai said at the time, according to prepared remarks.

Recently, MMTC President Emeritus and Senior Advisor David Honig discussed the proposal in a letter to Chairman Pai and fellow Commissioners Mignon Clyburn and Michael O’Rielly. The Commission previously invited public comments on the Petition for Rulemaking (RM-11727) and Honig stated that nearly 800 Class A FMs could potentially “double their power from 6,000 watts to 12,000 watts, and allow hundreds of stations of all classes to improve their technical facilities without impacting the protected signal contours of neighboring stations.” Honig asked the Commission to issue a NPRM on the initiative, noting that “Under the current regulatory environment, many independent and minority-owned stations are and will be forever unable to upgrade their facilities,” without the C4 classification.

Given the speed at which Chairman Pai is making decisions, we should know soon what the state of this petition is. FHH can help you decide if the new allocation would affect you.