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

FCC invites preliminary comment on Geo Broadcasting proposal for program origination by FM boosters.

Now that the DTV transition has been in effect for almost three years, multi-channel TV broadcasting is fairly commonplace.  But what about FM radio?  Thanks to digital FM technology designed by iBiquity and authorized by the FCC, FM stations have for years been able to provide up to two additional programming streams beyond their main channel.  And yet, development of an economically sound model for multi-channel audio services has been much slower than on the TV side.

Enter Geo Broadcasting Solutions, LLC (Geo).  The folks at Geo have come up with an alternative approach to multi-channel FM service.  They are proposing that on-channel analog FM boosters be permitted to originate programming separately from the parent station.  The concept is that each booster could transmit hyper-local material to the audience in its immediate vicinity – mostly commercial spots, but also other material if a licensee so desired. 

Boosters are like translators – low-power transmitters that permit licensees of full-power stations to improve the coverage of their full-power stations within their already protected contours.  The difference between boosters and translators is that a booster operates on the same frequency as the full-power station whose signal it is “boosting”.  Translators, of course, operate on different frequencies from their primary stations. (Boosters are authorized only to the licensee of the primary station and may not expand the primary station’s service area. Commercial translators funded by the primary station also may not expand the primary station’s service area – a restriction that does not apply to non-commercial translators or independently-funded commercial translators.)

Since boosters are on the same channel as the primary station, booster operation generally poses considerable potential for interference. That’s one reason why boosters have not been widely used over the years, even though the FCC’s rules have provided for them for more than four decades.  In recent years, however, modern computer control techniques allowing precise synchronization of the parent and booster signals have improved performance.  A quick glance at the FCC’s database indicates that a few hundred FM boosters are currently authorized.

Geo claims to hold patents on techniques that shape signal coverage to avoid interference both (a) between a booster and its parent station and (b) between multiple boosters each rebroadcasting the same parent.  According to Geo, its technology will allow the insertion of separate material into the programming on each booster.  In other words, a licensee with multiple boosters could include different programming on each separate booster – allowing the licensee to direct different content to specific areas within its main station’s primary contour.

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“Specialty station” list updated; MPAA objections rejected

As we reported last November, the U.S. Copyright Office (CO) was then in the process of updating its list of “specialty stations”. Those are stations that, when carried on cable systems as “distant signals”, trigger lower royalty burdens for the cable operator than other “distant” stations do. (Check out our earlier post for a more detailed explanation of how that works.) 

The CO has now completed its updating process. In a Federal Register notice, it has announced that all stations that had claimed to be “specialty stations” will be included in its official listing. This should not come as much of a surprise, since the CO has long accepted self-certifications from stations looking to get on the list.  Think of it as a kind of honor system.

That didn’t stop the Motion Picture Association of America (MPAA) from objecting to several of the proposed additions to the list. MPAA’s members receive distributions from the copyright royalty pool generated by (among other things) distant signal royalty payments. So MPAA’s members benefit more from distant signal carriage charged at full copyright rate, rather than carriage at the discounted “specialty station” rate. In its objections, MPAA urged that the CO both can and should wade into – and independently resolve – disputes concerning “specialty station” status. Needless to say, MPAA also argued that some of the claims of “specialty” status were just self-serving noise.

Sorry, the CO has now ruled – we stand by the position we’ve always taken, which is that we don’t have any legal authority to resolve disputes of that kind. We will maintain our self-certification honor system. Here’s our new specialty station list, which includes the stations whose status was contested.

What happens now?

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Sixteen more Class A stations face the loss of their Class A status.

The thinning of the ranks of Class A TV stations continues.  We reported recently that the FCC has started to propose the downgrading of a number of Class A television stations to LPTV status, presumably to make room for the almighty broadband to take over TV spectrum.  The stations targeted in the first round of that effort had (a) failed to file Children’s TV Reports and (b) failed to respond to FCC’s inquiries about the whereabouts of those reports.  (The Commission later fined a number of other stations which had also failed to file kidvid reports; they escaped the dreaded downgrading because they had at least responded to the FCC’s inquiries.)

Another 16 Class A’s now face the prospect of being demoted to LPTV status. 

Like the stations we’ve already reported on, the latest batch of targeted Class A’s got onto the FCC’s radar by not filing Children’s TV Reports.  In response to the FCC inquiry about those missing reports, each of the three licensees (one holding 13 licenses, another two, and a third one) acknowledged their respective failures to file.  Each also acknowledged that their stations had operated, at most, only sporadically over the last several years.  Two blamed the economy for the extended darkness; one claimed that its non-operation – its two stations had operated a total of less than four months in the last five years – arose from a “need to locate permanent transmitter sites”.   Two of the three licensees’ responses also indicated that their stations no longer had main studios (much less public files located their main studios).

In order to qualify for Class A status, a licensee must maintain a main studio and broadcast a minimum of 18 hours per day, with an average of at least three hours weekly of locally-produced programming and three hours of children’s programming.   From the responses described above, the Commission concluded that none of the 16 stations still qualified to be Class A – accordingly, they’re looking to be downgraded.

The FCC suggests that Class A stations who find themselves temporarily unable to meet the minimum regulatory requirements for Class A status may, in some circumstances, be eligible for special temporary authority to operate at variance from those requirements.  But such STA would be only temporary, and would not cover extended time periods of noncompliance, particularly when the reason for the STA is financial distress.  The Commission is particularly skeptical about stations that close their main studios and/or de-construct their transmission facilities. The result of this strict approach, of course, is to impose the greatest hardship on the most vulnerable. 

The other side of the argument is that no one is proposing to take away licenses; rather, all that’s involved here is a status downgrade (from Class A to LPTV), which still allows the stations to resume operation.  Whether there is a difference between taking away the license and taking away only Class A status remains to be seen after we know more about the prospects of space remaining for LPTV stations after implementation of the FCC’s plan to truncate the TV spectrum by 10-20 channels.

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FCC is an equal opportunity whacker when it comes to doling out fines.

Last month we posted about the FCC’s apparent effort to thin the ranks of Class A stations, presumably to free up spectrum for broadband.  The targets there were 16 Class A licensees who had not filed all their Children’s TV Reports (FCC Form 398) and who did not respond to the FCC’s letters of inquiry about that failure.  As we suggested then, it wasn’t clear how the Commission planned to deal with Class A licensees who hadn’t filed the required reports but who had responded to the FCC’s inquiries by demonstrating that they had in fact (a) aired kids’ programming and (b) followed up by filing appropriate (albeit late) reports.

Now we know.

It looks like the price tag is going to be $13,000 (per station, not per licensee).  In each of three Notices of Apparent Liability, the Media Bureau has fined the targeted licensee $3,000 for failure to file reports and $10,000 for not having the reports in the public file.  One of the licensees in question has two stations – so it got hit for a total of $26,000.  You can read the FCC’s Notices here, here and here.

The amount of the fines does not appear to vary according to the number of Children’s TV Reports that may have been missed.  One targeted licensee missed 17 reports, another 16, another eight – but they all got the same fine on a per station basis. 

Perhaps more importantly, the amount of the fines does not vary according to the size of the licensee.  An individual licensee holding only three Class A/LPTV stations is treated the same as a large corporate licensee with a score of full power stations.  While little guys can try to get their fines reduced by pleading poverty, the FCC has historically been unwilling to reduce any fine that does not exceed about 5%-7% of the station’s gross revenue, without regard to profitability.  We know of one instance where the FCC’s disinclination to consider the practical economic hardship its fines impose directly resulted in a station’s having to lay off employees to fund the payment. 

The government’s need for revenue marches forward.  And you thought that the FCC’s agenda was about job creation….

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Commission moves to downgrade primary Class A stations to more vulnerable secondary LPTV status.

With the spectrum auction legislation now in effect, the FCC is turning to the task of clearing TV spectrum for wireless broadband.  As we all know, that will involve some shuffling, since full power and Class A television stations have rights as primary spectrum licensees and must therefore be accommodated somewhere on the band. 

But the auction legislation specifically recites that it does not change the status of Low Power Television stations,which presumably continues their secondary status. That gives the Commission a lot more flexibility in dealing with LPTVs because it does not have to take LPTVs into account when it plays chess with full power and Class A channel assignments.  While LPTVs will likely be given an opportunity to find, and file for, some alternate channel, they may need good luck to find one in the anticipated cramped condition of the post-repurposing TV band.

So, from the Commission’s perspective, the chore of repacking existing stations would probably be much easier if Class A stations could be downgraded to LPTV status.

Where there’s a will, there’s a way: the downgrading effort has begun.

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Entercom proposes that required disclosure of licensee-conducted contest rules be made on-line, rather than over-the-air.

The promotions department at KOST (and at least some other Clear Channel stations) should be sending “thank you” notes to the folks at Entercom Communications Corp. As we reported just last week, KOST was recently spanked to the tune of $22K for violating the FCC’s contest rule (Section 73.1216) in part by failing to broadcast all the material terms of a contest it was running on its website. (The fact that KOST was a recidivist violator of the contest rule didn’t help it much.) 

But now Entercom (which owns more than 100 radio stations) has filed its own petition for rulemaking asking the Commission to bring the contest disclosure requirement into sync with “how the majority of Americans access and consume information in the 21^st century.”  That would be the Worldwide Web, of course. 

According to Entercom, “Americans expect to instantly access information at their fingertips by merely logging on to a website”. That being the case, if the FCC wants to be sure that potential contest participants are advised of the contest’s rules, it should be enough that those rules be available on-line.  Any required over-the-air disclosures can thus be limited to announcements that full contest rules are available on station websites.  (Any web-averse Luddites out there can be taken care of on request by e-mail or fax.)

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Despite – or, supposedly, because of – its own 2010 channel-sharing proposal, FCC summarily rejects similar 2008 approach advanced by ION

As part of its push to “repurpose” television broadcast spectrum for wireless broadband use, the FCC has, since 2010, been promoting the idea of channel sharing.  The idea is that two or more TV stations would share one 6 MHz broadcast channel, each having its own program stream.  One of the primary keys to enticing broadcasters to take the bait is that each station stream would have cable and satellite must-carry rights.

Attentive CommLawBlog readers may have thought that that proposal rang a bell – because (as we reported back in 2008) not only had somebody come up with the idea before, but that somebody had formally proposed its own license-sharing deal with features very similar to the approach the Commission is now pushing. 

In November, 2008, an assignment application (FCC Form 314) was filed proposing a “share-time” arrangement for a bunch of TV stations licensed to ION Media Networks.  A new company, Urban Television, LLC, would acquire “share-time licenses” permitting it to broadcast on the ION channel.  ION would continue to be the licensee of, and would continue to operate, its existing stations on the same channels.  (According to the application, Urban is owned 49% by ION and 51% by BET Founder Robert L. Johnson’s RLJ Companies.)

While the application was remarkably sparse on technical details – the contract between ION and RLJ was only two pages long, for crying out loud, and the summary of the transaction was only four (double-spaced, at that) – the basic idea boiled down to splitting up a single station’s 6 MHz channel into multiple, separately-licensed digital streams capable of accommodating  separately-owned TV stations.  As proposed by Urban Networks, each stream would be designated a “television station” and so would be entitled to the same mandatory cable and satellite carriage afforded to every full power station. Urban Networks sweetened the pot by offering a slew of new opportunities for minority entrepreneurs to participate in broadcast ownership and programming.

The broad strokes of Urban’s technical proposal were pretty close to the Commission’s repacking concept – separate licenses within a given 6 MHz channel, and cable and satellite carriage for everyone.

The FCC invited comments, and then proceeded to ignore the proposal even while advancing its own version of channel-sharing. 

But now, after a three-year wait, the Commission has summarily dismissed the Urban Networks applications.

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The Internet may be the go-to place for job-seekers, but the FCC still insists on an Old School approach when it comes to broadcast jobs and EEO.

Despite the fact that the Commission has itself acknowledged, repeatedly, that the Internet is an important, maybe even “critical”, resource for job-seekers, broadcasters with jobs to offer had better not rely on the Internet alone when recruiting for those jobs. If they do, they’re looking at a fine that could run into five digits. Ask a couple of licensees – one in Virginia, one in South Carolina – who just found out the hard way.

The FCC has long required broadcast employment units with five or more full-time employees to recruit broadly for minority and female applicants for all job openings. A report of recruitment efforts, including the referral sources that are notified of openings, must be placed in the public file of all stations in such employment units every year; they must also be posted on the stations’ websites (if they have websites). At the middle of the license term and at renewal time, those employment units must submit reports on their EEO efforts to the Commission. And each year the Commission also conducts random audits of EEO performance.

We have cautioned clients for at least a couple of years that the FCC insists on a broad spectrum of recruitment sources. The classic “word-of-mouth” approach and “referrals from friends” are not enough. And as we wrote just a year ago, the FCC has also cautioned that Internet-based recruitment cannot be relied on alone. (Irony alert: the fact that some businesses accept job applications only via the Internet has been touted by the Commission as a justification for its National Broadband Plan, which includes repurposing TV broadcast spectrum for wireless broadband.)

In the two recent cases (released on the last business day of 2011), the FCC nicked two station groups for $8,000 and $12,000 for inadequate dissemination of recruitment notices for some of their openings. For some, but not all, of their openings the groups had relied on Internet and word-of-mouth to spread the word. Not enough, the Commission announced. Its FCC’s words are direct and speak for themselves (although we’ve highlighted a particularly noteworthy sentence below):

The Licensee’s reliance on non-public sources such as word-of-mouth referrals and its own employee board, did not constitute sufficient recruitment as contemplated under the Commission’s rules, which require public outreach. …While the Commission does not require the use of a specific number of recruitment sources, if a source or sources cannot reasonably be expected, collectively, to reach the entire community, as here, a licensee may be found in noncompliance with the Commission’s EEO Rule. Further, the Commission’s interpretation of the EEO Rule does not allow a licensee to recruit solely from Internet sources to meet the requirement to widely disseminate information concerning the vacancy.   

We have been told over and over again by clients that the Internet is just about the only recruitment source that produces any results and that mailing notices of vacancies to a large list of community organizations is an exercise in futility.  That may be so in the Real World, but on Planet FCC things are apparently different – so the wise licensee will continue to keep a good supply of paper and postage stamps on hand.

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A service that facilitates communications between hearing-impaired and hearing people is in for a major overhaul.

The FCC is trying to update the Video Relay Service (VRS), which enables people who can’t hear to have near-normal telephone conversations with those who can. Did we say “update”? Actually, “complete overhaul” may be more what the Commission has in mind.

Modern technology has done wonders for people with hearing problems. First came Teletype-like devices, called TTY, that sent typed messages over telephone lines. Problem: users on both ends needed TTY units, even if one of them could hear. Then came Telecommunications Relay Service (TRS) in which a Communications Assistant (CA) with a TTY acts as an intermediary between the hearing and the hearing-impaired, speaking aloud what a deaf person types, and typing what a hearing person speaks. TRS thus enables hearing people having no special equipment and deaf people to communicate readily. A variation on TRS, provided over the Internet, is called (inevitably) iTRS.

But that's all very 20th century. Today, the broadband Internet allows live video contact. A CA can provide visual sign language interpretation between a deaf and a hearing person. That is VRS. The overall improvement in the quality of life for deaf people has been dramatic.

Part of the eyebrow-raising fees that we all pay on our telephone bills funds both TRS and VRS. The service is otherwise free to users. Today VRS providers are compensated from the fund on a per-minute basis, and that causes a problem. Since users don’t pay, and vendors are paid per minute, no one has incentives to be efficient or to avoid wasteful use. Indeed, there is a contrary incentive for service providers to stimulate minutes of use, and thus enhance their own income. Service providers’ employees, for example, can pump up usage with subsidized calls, including sales calls to existing and prospective customers. (Some say this crosses over into fraud.) Service providers also want to hinder their users’ switching to a competitor.   One technique is to offer free equipment with unique features that don’t work with other providers. Even though the FCC mandates number and equipment portability, there is no requirement that additional features work universally.

With all the free video calling software and services available today to anyone who wants it, the FCC got to thinking.

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In wake of rejection of T-Mobile acquisition, AT&T extends its holdings in the Lower 700 MHz band, with a few strings attached.

The march toward spectrum consolidation continues. In a Christmas week action, the Commission has approved AT&T’s purchase of a potential treasure chest of spectrum from Qualcomm. How much treasure? $1.925 billion worth.

In green-lighting the deal, the FCC may have been trying to avoid accusations that it is suffocating the growth of AT&T’s wireless services. The Commission had, after all, just slammed the regulatory door on AT&T’s attempt to buy T-Mobile (that would be AT&T’s only GSM cellular competitor), saying that the transaction would not be approved without a hearing. Whatever the Commission’s motivation, though, the AT&T/Qualcomm decision was released on December 22, just in time to keep lawyers busy over the Christmas weekend. Holiday notwithstanding, the deal has already closed.

In return for its $1.9B, AT&T got access to what used to be TV Channel 55 on a nationwide basis and TV Channel 56 in New York, Boston, Philadelphia, Los Angeles, and San Francisco. Qualcomm had originally obtained some of this spectrum from Aloha Partners and the rest at an FCC auction. They used it to launch their MediaFLO mobile video service, which did not live up to expectations and was shuttered earlier this year.

The spectrum is unpaired. In other words, it does not include blocks separated by a gap that facilitates interference-free two-way traffic. AT&T plans to use it for one-way downlinking only, to deliver data-intensive services like movies and other video material requiring little or no uplink interaction. (Editorial aside: That kind of one-way heavy data dump could also be provided by broadcasters, if the FCC would only let them. A number of broadcast organizations – Sinclair Broadcast Group and SpectrumEvolution.org, for two – have formally proposed such use. Their proposals, however, have thus far been met by nothing but stony silence, and in some cases hostility, from the FCC.)

This purchase is not AT&T’s first.

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