Update: Appeal Clock Starts for Class A and LPTV Digital Construction Deadlines

FCC’s September, 2013 denial of reconsideration finally makes it to the Federal Register

While the transition of full-power TV stations from analog to digital occurred nearly five years ago, the DTV transition for Class A and LPTV stations is still far from complete. In 2011 the FCC set deadlines for the construction of Class A and LPTV stations and the termination of all LPTV operation on Channels 52 and above. (Read out post about that decision here.) And as we reported last September, the Commission denied reconsideration of that decision.

For unexplained reasons, the order denying reconsideration was not published in the Federal Register . . . until now. Its publication there on March 6 starts the 60-day clock for seeking judicial review of the deadline rules. In other words, May 5, 2014 is the last day for getting to the court house.

For anyone who might (understandably) have lost track of this proceeding in the five months or so since the FCC formally addressed it, here’s what’s on the table.

The FCC has established a uniform deadline of September 1, 2015, for constructing digital flash cut or companion channel LPTV stations; but the FCC declined to extend the construction period for new LPTV stations, which remains three years after the date of grant.  All analog and digital LPTV stations on Channels 52 and above (“out-of-core”) had to move to a channel in the 2-51 range (“in-core”) by December 31, 2011, or else go off the air.  Finally, the FCC clarified that LPTV stations on Channel 6 (82-88 MHz), which have secondary status, must not cause interference to FM radio stations. (FM stations operate on channels starting at 88.1 MHz, immediately adjacent to TV Channel 6.) The FCC didn’t mention how conflicts between Class A stations, which are primary spectrum users, and FM radio stations would be resolved.

The FCC’s refusal to extend the construction deadlines for all new digital LPTV stations until 2015 has been a particularly sore point with many permittees, especially since FCC Chairman Tom Wheeler announced that the incentive auction sale of TV spectrum will not likely occur until 2015. Many permittees have already sought extensions of their construction deadlines, pointing out the obvious: permittees can’t be expected to be able to make intelligent investment decisions without knowing how many and which channels will remain available after the incentive auction, so they need a construction deadline that falls well beyond the auction conclusion.

Will anyone ask an appeals court to force the FCC to give LPTV permittees more time to build?  Will anyone who lost their license because they could not find an in-core channel in time claim that their stations were stolen from them by the government?  Stay tuned to Commlawblog.com for further developments.

FCC Stays the Course on Digital Transition for LPTV/Class A Stations

Deadlines set in 2011 remain in place; Channel 6 LPTV's cautioned on potential for NCE FM interference.

The FCC has nixed requests submitted by a number of LPTV and Class A stations looking for relief from spectrum-clearing measures put in place two years ago.

In 2011, the FCC announced the end of the transition to digital broadcasting for Class A and Low Power Television stations (to make life simple, we’ll call them both “LPTV” for now). In so doing, it set a number of deadlines.  In response to a handful of petitions of reconsideration, the FCC has now reaffirmed those deadlines. It has also addressed complaints from noncommercial (NCE) FM broadcasters that increased power levels for LPTV stations operating on Channel 6 could cause interference to NCE FM stations.

Under the deadlines set in 2011, all TV operation of any kind, analog or digital, on Channels 52 and above had to end by December 31, 2011, and all analog LPTV broadcasting on any channel must end by September 1, 2015. 

The December, 2011 deadline put a particular squeeze on out-of-core LPTV licensees. Some had a hard time finding an in-core channel by the deadline. Others who did find such a channel still had to go dark on December 31, 2011 if they had not received a permit for, or completed construction of, their in-core facilities. Going dark, of course, poses its own major problem: Section 312(g) of the Communications Act says that a broadcast station that fails to operate for 12 consecutive months automatically loses its license.

While a number of LPTV representatives asked the Commission to re-think the December 31, 2011 deadline, the Commission has now concluded that no such re-think is necessary. Looking back on what actually happened post-December 31, 2011, the FCC is satisfied that it gave everybody plenty of time to get the job done and that its staff bent over backwards to help out where possible. While it acknowledges that 275 LPTV stations were eventually canceled post-December, 2011, the FCC observes that 150 of those had received in-core permits but had never built them out. That leads the Commission to conclude that those 150 “appear[ ] to have chosen not to transition.” That’s a bit disingenuous, since the FCC doesn’t mention that some of those stations did not receive in-core authority until almost the end of the 12-month Section 312(g) period and may not have had time to build before the axe fell.

With respect to the September 1, 2015 deadline for ceasing all analog operation on any channel, one LPTV licensee suggested that that hard-and-fast deadline be softened to permit LPTV stations to continue to operate in analog mode until some later time tied to the roll-out of the National Broadband Plan.

The FCC’s response in a nutshell? Enough is enough. Analog is inefficient, and it’s time to put an end to it.  Yes, the Commission recognizes that incentive-auction-induced spectrum repacking is in the offing, but the agency seems oblivious to the practical reality that some stations will find it difficult to justify investing in digital facilities until they know whether they will survive the repack.  Instead, the FCC suggests that LPTV licensees should have seen the repack coming – even though they filed their applications for new stations in 2009, long before the Notice of Proposed Rulemaking proposing the repack. 

The FCC does dangle the vague possibility of some relief for those who find that they can’t build their digital facilities by 2015. Extension applications can be filed, but action on such applications will be based on the standards set out in Section 74.788. That section doesn’t mention the spectrum repack as a possible justification. It does offer as sample justifications:

  • the inability to build a tower because of zoning or FAA approval problems (better add environmental approval, which has kicked into high gear since the extension rule was adopted);
  • the lack of equipment necessary to obtain a digital TV signal; and
  • circumstances in which the cost of construction exceeds the station’s financial resources. 

Anyone thinking about asking for an extension might not want to rely too heavily on economic factors: the FCC observes that it set the 2015 deadline in the belief that it would “be further removed from the prolonged economic downturn that began in late 2007.”   Oh, is the downturn over, including for small businesses?  We didn’t know that. 

But all is not lost, because the FCC notes that the Media Bureau has already granted some extensions based at least in part on the repack.  While that affords some cautious optimism, right now it’s impossible to know for sure how the FCC will deal with extensions of the 2015 deadline. We do know, however, that extension applications must be filed by May 1, 2015.  We suspect that the FCC is just as happy to tackle this issue some other time.

Back in 2011, the Commission distinguished between construction permits for new digital stations, on the one hand, and, on the other, permits for flash cuts (i.e., on-channel conversion to digital) or digital companion channels for existing analog stations. Flash cuts and companion channel permits were extended to September 1, 2015. By contrast, permittees for new digital stations are stuck with the three-year deadline.

That poses a vexing problem for many people holding non-extendable permits for new digital stations. Building a new station can be pretty risky if you don’t know whether you are going to survive the repack.  It seemed to make sense to set the deadline at the later of three years or September 1, 2015, so that the lay of the land after the repack would be known.  Sorry, the FCC has now said, three years is enough time.  If you don’t want to take a risk, then don’t build. 

The end result is that holders of construction permits granted before September 1, 2012, have to build or file for extensions within their initial three-year period specified on their permits.  CP’s granted after that date will not expire until after September 1, 2015.  We note that many permittees have already filed for extensions and have been able to obtain two six-month extensions for good cause.  The Media Bureau does not have the authority to grant more than two extensions and must refer further requests for a vote of the Commissioners themselves.

The final topic addressed in the Commission’s recent order is the potential of Channel 6 LPTV stations to interfere with NCE FM radio stations.  Channel 6 stations operate on 82-88 MHz, and the FM radio band starts at 88.1 MHz. In effect, the aural carrier of TV6 is on a first- or second-adjacent channel to an FM station on 88.1 MHz, depending on how the TV station tunes its aural carrier. 

As a result, the potential for interference is substantial. And to make matters worse, in 2011 the FCC provided an increase in the power limit for VHF LPTV stations, which aggravated the potential for interference. If the TV6 station were a radio station, the FCC’s FM separation rules for adjacent-channel stations would come into play and require a certain distance between the two stations.  But even though FM stations have to protect full power TV6 stations, there is no rule on the books dictating separations between TV6 LPTV stations and adjacent-channel FM stations.

Concerned about the increased possibility of interference from beefed-up Channel 6 stations, a couple of parties objected to the power increase.

The FCC’s answer is that LPTV stations are secondary and so are required to protect FM radio stations – which enjoy primary status – from interference.  LPTV stations on Channel 6 that take advantage of the new power limit thus had better watch their step, because if they do interfere with FM stations, they will have to fix the problem or reduce power or shut down. 

While somewhat comforting for NCE FM licenses, though, that’s not quite a full answer because it doesn’t address Class A Channel 6 stations. Unlike low power stations, Class A stations are not secondary spectrum users.  If Class A stations and FM stations are both primary, who wins?  Does the FCC’s general first-come, first-served rule apply?  The Commission’s recent decision is silent on that point.

Update: 2013 Reg Fee Deadline Set

Mark your calendar, round up your credit cards and keep your FRN handy.  The FCC has finally announced that this year’s regulatory fees must be paid by September 20, 2013. (Yes, that deadline -- which appears in the "Dates" paragraph in the linked Federal Register announcement -- does seem a bit later than usual, as does the announcement itself, which is showing up less than 30 days before the deadline!)  [Blogmeister's Update: During the afternoon of August 23, the FCC has issued a separate public notice further confirming that the deadline for payment of 2013 reg fees is 11:59 p.m. (ET) on September 20, 2013.[

The online “Fee Filer” system is now up and running; you can get to it at this link. That’s the first stop you’ll have to make in paying your fees. Once you log into the Fee Filer system (using your FCC Registration Number (FRN) and password), you’ll be able to generate a Form 159-E, which you’ll need to tender with your payment. 

While Fee Filer will ordinarily list fees associated with the FRN used to access the system, WATCH OUT: the list of fees shown in Fee Filer may not be complete. (The same is true for the broadcast reg fee “lookup” page provided by the Commission.) The FCC makes clear that it’s the payer’s responsibility to confirm the “fullest extent of [the payer’s] regulatory fee obligation.” Double- and triple-checking other FCC databases, as well as your own records, is prudent, since failure to file any required reg fee, even if inadvertent and even if only for a very small amount – like, say, a $10 auxiliary license fee – can result in very unpleasant complications (thanks to the Debt Collection Improvement Act).

As outlined in the public notice announcing the September 20 deadline, there are a number of ways in which the fee can be paid, once you have your Form 159-E. Helpful tip: the online approach, using a credit card, is extremely efficient. Wire transfer and ACH payments are also good, although they may involve some additional steps. For our money, the least desirable approach is the old-fashioned way, i.e., sending a paper check to the FCC’s bank in St. Louis. Lots of things could go wrong between the times (a) you stick the envelope in the mail box and (b) the payment is ultimately credited by the Commission. 

Remember, the FCC will not be sending you a hard-copy reminder of your reg fee bill. And remember, too, the FCC imposes a 25% late filing fee, starting immediately after the deadline. You’ve got just about a month to get your payment in – there is no reason to run afoul of that deadline. Good luck.

2013 Reg Fees Set

Significant increases across-the-board for broadcasters; no announced deadline for fee payments yet, but indications are that they will be due sometime in “the middle of September”

The final 2013 regulatory fees have been announced by the Commission.  For those of you anxious to cut to the chase, here’s a link to a convenient table setting out new fees (and, for TV-related services, comparing (a) the fees the FCC has now adopted against (b) last year’s fees). But before you head on out to the table, you might want to brace yourself – this year’s fees are, with very limited exceptions, a lot steeper than last year’s.

How much steeper? About 7.5% across-the-board on the TV side – which, for a VHF TV station in one of the top ten markets translates to an impressive $6,000 bump up. For radio, the increases tend to be more in the 5% range – preferable to 7.5%, for sure, but still likely to sting a bit.

The relative uniformity in the fee increases over last year should not be a surprise. As we reported last May, when the FCC first proposed this year’s fees, the Commission is re-jiggering the cost allocation method underlying the annual calculation of fees. That re-jiggering means serious upticks for some services, including broadcasting. In fact, the anticipated increases were so serious that, to cushion the initial blow, last May the Commission was contemplating capping increases at 7.5%. And that’s just what it’s done. (For a somewhat more detailed discussion of the allocation method that has led to the increases, see our previous posts here and here.)

The Commission has not yet announced the dates of the window period during which reg fees can be filed this year, but it does say (in Paragraph 1 of its order) that these fees “are due in September 2013” and (in Paragraph 56), “payments of the regulatory fees will not actually be due until the middle of September”. So don’t give up your August beach rental, and go on ahead and make plans for a nice Labor Day . . . but look for a hectic week or two when you get back.

In addition to the fees themselves – and the cost allocation method underlying them – the Commission has announced a number of reg fee-related changes that will kick in next year. So while we need not worry about these changes for this year’s filing, heads up for next year. Those changes include:

  • VHF and UHF stations will be merged into a consolidated reg fee category (although the consolidated VHF/UHF fee category will presumably still include differing tiers according to market size);
  • Internet protocol TV (IPTV) licensees will be subject to reg fees (the new IPTV category will be included in a new fee category along with cable TV);
  • Reg fees for FY 2014 (i.e., those that will be paid next year) will have to be paid electronically; and
  • The Commission plans to transfer unpaid reg fees to the Department of the Treasury for collection at the end of the payment period, rather than 180 days after the close of the payment period, as is its present practice.

With respect to that last point – shipping unpaid fees to Treasury for collection sooner rather than later – the FCC advises that regulatees “will not likely see any substantial change in the current procedures of how past due debts are to be paid”. That, of course, remains to be seen.

With respect to TV translator, LPTV and Class A TV and TV booster stations, the Commission will continue charging only one fee per station, even if the station is transmitting both an analog and a digital signal. This is a hold-over from pre-transition days, and will be re-visited in future years as any remaining analog operations switch over to digital-only.

As has always been the case, failure to pay reg fees on time can have dire consequences. Those include: a late payment penalty of 25 percent of the unpaid amount, starting immediately after the deadline; additional processing charges for collection of late fees; and administrative penalties, such as withholding of action on any applications from delinquent parties, eventual dismissal of such applications, and even possible revocation proceedings. 

Remember, the FCC will not be sending you a hard-copy reminder of your reg fee bill.

And here’s our standard final cautionary heads up: Historically, the FCC’s fee calculator has NOT included fees for any auxiliary licenses that may be associated with the main license.  (We've told you about this in the past . . . and it's still true.)  Since separate fees are due for those auxiliaries over and above the main license reg fee, it’s very important to doublecheck your records and the FCC’s records to be sure that your payment includes the necessary fees for all applicable authorizations. Since a failure to pay even a single $10 fee for a remote pickup could result in the dreaded red light status, extreme care should be taken on this front.

The Report and Order announcing the 2013 fees will technically take effect once it is published in the Federal Register, which we expect to happen in the very near term. As indicated above, the precise dates during which reg fees will be payable have not yet been set (although we do know that those dates are likely to be sometime in “the middle of September”). Check back here for updates.

2013 Reg Fees: The FCC Proposes a Couple of Alternatives

Commission looks to update its methodology for calculating regulatory fees, but proposes a possible alternative approach to cushion the blow this year.

One of the time-honored rites of spring – at least at the FCC – is the release, every April or May, of a Notice of Proposed Rulemaking setting out the schedule of regulatory fees the Commission thinks it may impose on all regulatees come August-September. Historically, we here at CommLawBlog have tried to be Johnny-on-the-spot in letting our readers know the fees that have been proposed, even though the fees that eventually adopted (usually in July) may vary here and there from the initial proposal.

But this year is different.

Instead of providing one set of proposed fees, the Commission has given us a Notice of Proposed Rulemaking (NPRM) laying out two sets of possible fees . . . because it’s in the process of a much-needed update of its calculation methodology, and it’s still not sure: (a) whether the new approach is exactly right and, even if it is, (b) whether that new approach should be applied this year. Depending on which method it ultimately adopts, the fees for some broadcasters could swing by a couple of thousand dollars. As a result, we’ve had to prepare a more elaborate table reflecting the proposals, so we’re a day or so behind our usual curve. Please bear with us.

To understand what’s going on here, you have to understand how reg fees are calculated.

The FCC is required by Congress to collect enough reg fees to, in effect, cover the FCC’s costs of operation. Those are determined by Congress through the annual appropriations process. This year the FCC’s nut is $339,844,000. (Note that the FCC’s actual costs are technically lower thanks to the sequester that kicked in earlier this year, but the nut remains the same because of Congress’s appropriation.)

Starting with the total amount it must collect, the Commission then allocates that amount based on the number of full-time FCC employees (FTEs) devoted to the various fee categories carried out by its various bureaus. We don’t need to get into the nitty-gritty of that particular process – which even the Government Accountability Office acknowledged has been less than fully transparent – except to note that the FTE figures the FCC has been using date back to 1998. Those interested in delving more deeply here may want to check out our post from last fall where we addressed the subject in more detail.

We can all agree (as the Commission itself concedes) that things in the regulatory world have changed a bunch in the last 15 years. As a result, maybe reliance on 15-year-old FTE data isn’t the best, or at least the most accurate, way to determine reg fees.

That being the case, the Commission has revised its FTE numbers (using September, 2012 figures) and its overall inter-Bureau allocations (with particular focus on International Bureau activities, which relate in large measure to regulatees across several other bureaus). The result of these revisions: a new allocation of costs that would reduce the reg fee burden to be imposed on regulatory activities associated strictly with the International Bureau, but substantially increase the share of costs to be borne by Media Bureau and Wireless Bureau regulatees. 

In its NPRM the Commission specifically seeks comment on its revised approach to cost allocation.

The Commission recognizes that its re-jiggered allocation method would lead to significantly higher fees for some of its regulatees. Because of that, it is proposing to cap rate increases at 7.5% for this year. But presumably recognizing that any change – and particularly substantial change – can cause discomfort, the FCC is also suggesting that it might instead maintain its historical allocations at least for purposes of calculating the 2013 fees. The end result: two different sets of proposed fees to consider and comment on.

We have laid out the two proposed sets of fees, along with last year’s fees (for comparison purposes) in a couple of tables you can find here. It’s likely that most broadcasters would favor keeping the previous allocation method, since that would result in lower fees for all radio licensees and the vast majority of TV licensees. The difference for some TV folks would be significant: VHF licensees in the Top 10 markets would be on the hook for more than $4,000 more under the updated approach; for Markets 26-50, the difference on the VHF side would be more than $3,000. Bear in mind, though, that it is pretty much a given that the Commission will implement its adjusted allocation method eventually.

Beyond the methodological questions, the FCC is proposing additional changes in the reg fee drill. Of particular interest to TV licensees is the notion of treating VHF and UHF stations as essentially identical for reg fee purposes. This is based on the perception that the historical preference for VHF stations has largely, if not entirely, disappeared as a result of the 2009 DTV transition. Reg fees for TV stations would still be tiered based on market size, but no distinction would be made between UHF and VHF. The Commission is asking for comments on this, and promises that, if the proposal is adopted, it won’t kick in until 2014.

With respect to TV translator, LPTV and Class A TV and TV booster stations, however, the Commission plans to continue charging only one fee per station, even if the station is transmitting both an analog and a digital signal. This is a hold-over from pre-transition days, and will be re-visited in future years as any remaining analog operations switch over to digital-only.

And perhaps most jarring for the Luddites and traditionalists among us: the Commission is proposing to stop accepting paper and check transactions for reg fee payments, starting as of October 1, 2013. This is in keeping with an overall governmental shift toward a “paperless Treasury”. Under the new approach, the Commission would not accept payments by check (not even cashier’s checks!) or any accompanying hardcopy forms (e.g., Form 159) in connection with reg fee payments. Those of you with a couple of checks still left in the checkbook may take heart: since this change would not take effect until October, and since 2013 reg fees will have to be paid sometime in August or September (if the FCC’s past practice holds true), you’ll still be able to make one more paper payment before moving ahead into the 21st Century.

Comments on all of the proposals set out in the NPRM are due by June 19, 2013; reply comments are due by June 26. Again, the NPRM – and the fees described in it – are still only proposals. We won’t know the final fees until sometime this summer, and we won’t know the deadline for paying the fees until sometime later – although the fees are generally due in late August or early/mid-September. Check back here for updates.

TV "White Space" Devices Go Nationwide

New action follows December roll-out to eastern states.

TV “white space” devices, which operate on an unlicensed basis in locally vacant TV spectrum, are now authorized nationwide. This is pretty fast, by Government standards; just last December the FCC okayed the first large-scale roll-out to seven eastern states plus Washington, D.C. The class of approved coordinators for the database these devices rely on to find open channels is growing much more slowly. Also growing slowly is the number of FCC-approved devices that can use the service; we count just five so far.

FCC Approves "White Space" Devices in Eastern U.S.

New systems must protect many other services from interference.

Fully four years after adopting rules for unlicensed TV Band Devices (TVBDs), also called “white space” systems, the FCC has authorized roll-out beyond the two small test areas previously approved. Touted by advocates as “Wi-Fi on steroids,” TVBDs can now boot up in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina.

The FCC expects to extend authorization nationwide by mid-January.

TVBDs are required to avoid causing interference to multiple services: broadcast TV; fixed broadcast auxiliary service links; receive sites for TV translators, low power TVs, Class A TVs, and multichannel video programming distributors; public safety and private land mobile; offshore radio telephone; radio astronomy; and “low power auxiliary service,” which includes licensed (and some unlicensed) wireless microphones. 

The complexity of the TVBD rules results from the need to ensure that all of these services can operate unharmed. In many metropolitan areas having multiple TV channels and heavy use of wireless microphones, vacant spectrum for TVBDs is already scarce. The FCC’s ongoing plans to consolidate TV broadcasters onto fewer channels, so as to free up more spectrum for wireless use, will only make things worse.

Simultaneously with the spread of TVBDs into the Middle Atlantic states, the FCC expanded its registration program for wireless microphones from those same states out to the rest of the country, keeping the wireless mic registrations a step ahead of the TVBD roll-out.

FCC Launches Nationwide Registration of Wireless Microphones

Registration is needed to protect qualifying events from interference caused by TV Band Devices

The FCC has expanded its registration program for wireless microphones from the Middle Atlantic states to the rest of the country.   Registration helps to protect qualifying wireless microphones that operate in vacant TV channels from interference caused by TV Band Devices (TVBDs), also called “white space” systems, that likewise use vacant TV slots.

When the FCC established rules for TVBDs, it required those devices to avoid interfering not only with TV stations, but also with several other categories of equipment operating on TV frequencies. The most populous of those, by far, are the wireless microphones that are ubiquitous in TV, stage, and film production.

Most wireless microphones used in TV and films are licensed by the FCC.  Most others – including those used in stage shows, churches, and the FCC meeting room – operated illegally until January 2010, when the FCC authorized low-power models on an unlicensed basis by waiver. (As it considers whether to make those rules permanent, the FCC recently sought to update the record on wireless microphone issues generally.)

Two TV channels in every market are closed to TVBDs, so as to leave room for wireless microphones. Licensed wireless microphones needing additional channels are entitled to interference protection from TVBDs. So are unlicensed microphones on other channels, but only if used for major sporting events, live theatrical productions and shows, and similar occasions that require more microphones than the set-aside channels can accommodate.

To implement protection, qualified events must register in the database that controls which frequencies TVBDs can use at each location. The FCC has authorized the operation of TVBDs in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina, and expects nationwide authorization by mid-January. Those who distribute or use wireless microphones should make sure any needed registrations are in place before TVBDs are deployed in their vicinity.

The details of the registration process are available here. The conditions and procedures are complex; and the FCC cautions that most uses of unlicensed wireless microphone do not qualify for registration. We recommend planning ahead.

Reg Fee Tips II: Tax-Exempts May Need to Re-File Supporting Documentation

Despite the fact that your tax exempt – and, therefore, reg fee exempt – status may have previously been demonstrated to and accepted by the FCC, the Commission’s records may still not reflect that.

As previously (and repeatedly) noted here on CommLawBlog, it’s time again to reach into your wallets and pony up this year’s annual regulatory fees.  (The fees are due by 11:59 p.m. ET on September 13.)  A lucky few are exempt from having to make this annual contribution – specifically licensee entities that are tax-exempt under federal or state law.  To be FCC reg fee free, you’ve got to send the FCC documentation proving that you’re tax exempt. 

Since tax exemption tends to be a perpetual status, you might think that, once you have submitted your documentation, you’d be reg fee free forever (unless, of course, the FCC were to be notified at some later point that you had lost your exempt status).

Not so fast.

It seems that even where licensees have dutifully submitted proof of tax exempt status in previous years, the FCC has occasionally had difficulty keeping track of those exempt non-profits.  For years in some cases, many non-profits have received from the FCC an annual regulatory fee bill even though (a) they have notified the FCC (sometimes repeatedly) of their tax exempt status and (b) the FCC has acknowledged and confirmed that status.  In those cases, these non-profits have been forced to devote time and money to an annual ritual of resubmitting to the FCC proof of their non-profit status. 

I have non-profit clients who have had to perform this ritual four or five years in a row.  It’s as if there is no long term memory at the FCC’s fee collection apparatus.  If it were just a few isolated instances, that’d be one thing – but this appears to have been a chronic, if inconsistent, problem that has been with us possibly since the FCC first started collecting regulatory fees. It doesn’t happen to all exempt licensees, but it does happen, in many cases repeatedly, to some. Why the FCC seems unable to keep track of this type of information for all affected licensees from one year to the next is a frustrating and costly mystery.

So the lesson is, even if you are a tax exempt entity, and even if you notified the FCC of your exempt status at some point in the past, and even if the FCC has acknowledged any and all of your previous submissions, do NOT assume that the Commission knows or remembers that you are exempt from this year’s FCC regulatory fees.  Be sure to check on your status and don’t be surprised if it feels like déjà vu all over again.

Reg Fee Payment Tips

Some hopefully helpful hints for fee filers

Now that the excitement surrounding the announcement of the deadline for 2012 regulatory fees has died down, we all face the grim process of actually paying those fees. Here are some tips that might help the beleaguered broadcast reg fee filer.

How much are you on the hook for?  If you’re looking for a quick way to determine the reg fee applicable to any particular AM, FM, TV, FM translator or TV translator/LPTV/Class A station, you can run a quick search at http://www.fccfees.com/request_all.htm. Provide either the station’s call sign or FCC Facility ID number, hit the “submit” button and voilà – you should see the station in question listed, with its licensee and facilities all spelled out along with the fee due for that particular station. The fee listed there does NOT include any auxiliary licensees – STL’s, remote pickups, that sort of thing – used in association with the listed station. You’re on your own to track those down and make sure any necessary fee(s) is/are paid.

 Exempt or Non-exempt? Some licensees are exempt from reg fees. Most of you exempt folks know who you are, but if you have any doubt about what the FCC’s records show on that score, running a fee search at the link in the preceding paragraph will clue you in. Exemptions are available to licensee entities that are tax-exempt under federal or state law. To be FCC reg fee free, you’ve got to send the FCC documentation proving that you’re tax exempt. Such documentation could include the 501(c)(3) letter you got from the IRS or certifications from your state government confirming your tax exempt status. You can submit your documentation by email to ARINQUIRIES@fcc.gov, by fax to 202-418-7869, or by mail to

FCC, Office of the Managing Director
445 12th Street, S.W., Room 1-A625
Washington, DC, 20554

It should go without saying that, in addition to the documentation itself, you should also include enough information to permit the FCC to know precisely which stations would be subject to the exemption.

Trust but Verify! As we have mentioned in earlier posts, it’s important to double- and triple-check any fee-related information that the FCC’s system might pre-fill for you. We’ve previously reported on at least one mistake in the FCC’s system in 2010. This year, we have already heard from one faithful reader who, hoping to get ahead of things, tried to file some reg fees when she learned from our post yesterday that the payment window was open. She reported to us this morning that a number of her company’s stations, for which fees had been paid in previous years, were not pre-listed in the FCC’s Fee Filer system this time around. Take-home message: use information pre-filled by the FCC, but only after checking it first for (a) accuracy and (b) completeness.

Looking for Payment Type Codes? When you finally get to the point where you’re entering your fee information manually into Fee Filer, you’ll need the Payment Type Code (PTC) for each separate licensee/fee you enter. If you run a fee search with http://www.fccfees.com/request_all.htm, the search results will include the PTC for that license. You can also find a listing of fee codes at http://www.fccfees.com/feecodes.htm. Heads up though. The search function does not provide information about auxiliary licenses, and the fee code list does not include a PTC for auxiliaries. To see what auxiliaries the FCC thinks you’re using, you can check the GENMEN database (we recently provided some search instructions in this STL-related post). Once you’ve got a fix on that, the rest is easy, as long as you know that the PTC for all broadcast auxiliary licenses is 1269.


More, mainly general, information is available at the FCC’s Reg Fee page. Again, though, the reliability of all the information on that page is less than certain. For example, included among the links along the upper left side of the page is one identified as “AM & FM Search Fee”. We’re not including a link to that URL here because, as it turns out, the search currently (as of August 14, 2012 at 11:30 a.m.) provides only last year’s reg fees. It wouldn't be prudent to rely on the results of such a search for 2012 fees. 

Another example – the following FAQ copied from the FCC’s page (also on August 14, 2012 at 11:30 a.m.):

While that particular datum was (and technically remains) accurate, it's not especially helpful for anyone looking to confirm the deadline for 2012 fees.  Some updating by the FCC would appear to be in order . . .

Update: 2012 Reg Fee Payment Deadline Set

It’s official! This year’s regulatory fees must be paid by 11:59 p.m. (ET) on September 13, 2012. The online “Fee Filer” system is now up and running; you can get to it at this link. That’s the first stop you’ll have to make in paying your fees. Once you log into the Fee Filer system (using your FCC Registration Number (FRN) and password), you’ll be able to generate a Form 159-E, which you’ll need to tender with your payment. 

While Fee Filer will ordinarily list fees associated with the FRN used to access the system, WATCH OUT: the list of fees shown in Fee Filer may not be complete. The FCC makes clear that it’s the payer’s responsibility to confirm the “fullest extent of [the payer’s] regulatory fee obligation.” Double- and triple-checking other FCC databases, as well as your own records, is prudent, since failure to file any required reg fee, even if inadvertent and even if only for a very small amount – like, say, a $10 auxiliary license fee – can result in very unpleasant complications (thanks to the Debt Collection Improvement Act).

As outlined in the public notice announcing the September 13 deadline, there are a number of ways in which the fee can be paid, once you have your Form 159-E. Helpful tip: the online approach, using a credit card, is extremely efficient. Wire transfer and ACH payments are also good, although they may involve some additional steps. For our money, the least desirable approach is the old-fashioned way, i.e., sending a paper check to the FCC’s bank in St. Louis. Lots of things could go wrong between the times (a) you stick the envelope in the mail box and (b) the payment is ultimately credited by the Commission. 

Remember, the FCC will not be sending you a hard-copy reminder of your reg fee bill. And remember, too, the FCC imposes a 25% late filing fee, starting immediately after the deadline. You’ve got just about a month to get your payment in – there is no reason to run afoul of that deadline. Good luck.

2012 Reg Fees Set

From May proposals, big market VHF’s enjoy surprising reduction in final fees, all UHF’s go up a bit, and all radio fees stay the same; Look for payment window in September

It’s official – or, rather, they’re official. The final 2012 regulatory fees have been announced by the Commission. For those of you anxious to cut to the chase, here’s a link to a convenient table setting out the new fees (and comparing (a) the fees the FCC has now adopted against (b) the fees which it proposed last May). There are only a couple of surprises here.

First, it’s good to be a VHF TV licensee in Markets 26-50, since their reg fees have dropped nearly $2,000 between the May proposals and now. And it’s really good to be a VHF licensee in one of the top ten markets, since their fees plummeted a whopping $7,350 – about 8.4% – from the May proposals. On the other hand, it stinks to be UHF licensees in the top 20 markets. They’re looking at increases over the May proposals in the range of 2%. That amounts to increases of less than $1,000, if that’s any consolation. The linked table shows the changes between proposed fees and adopted fees, with increases shown in red and decreases in green. (Interestingly, none of the radio-related fees changed from the May proposals.)

The Commission has not yet announced the dates of the window period during which reg fees can be filed this year, but it does indicate (in Paragraph 1 of its order) that it intends to “collect these regulatory fees during a September 2012 filing window”. So it looks like your beach plans for August are still intact.

As to the non-dollar aspects of this year’s reg fees, there appear to be no surprises. The Commission has decided to use 2010 Census data in determining the fees for AM and FM stations (whose fees vary based on the population each station serves). And as was the case last year, with respect to Class A, LPTV and TV Translator stations

a single fee will be assessed for each facility regardless of whether it transmits in analog or digital mode, digital mode, or simulcasting in both analog and digital modes.

Note that this approach may, and almost certainly will, change as more of these facilities convert to digital mode.

The Commission has decided that any request for a refund, waiver, fee reduction or deferment of any reg fee (or apparently, any application fee) must be submitted electronically, rather than the old-fashion hard copy way. This change is part of an agency effort to improve the way it provides public information about the filing and disposition of waiver requests. 

Exactly how that will work is not at all clear. The Commission’s order provides absolutely zero description of what online filing system might be used for this purpose – instead, the FCC casually assigns the heavy lifting on this project to the Office of Managing Director (“We direct the Office of Managing Director to take the necessary steps to assist regulatees in transitioning to electronic filing.”). Plus, the order specifies no effective date, so it’s impossible to tell exactly when this new procedural tweak is intended to kick in. We’ll keep an eye out for further announcements on this and pass them along to our readers here.

One last heads up: as it has previously announced (and as was the case last year), the Commission has stopped sending out bills reflecting each station’s reg fee obligations. If you want to see what the FCC has calculated as the amount due for your main station license(s), you will go to www.fccfees.com, enter your call sign (or Facility ID Number) and hit the button (but note that that site will probably not be working until closer to the payment window). When the number comes up, you may still want to do your own calculation, as the FCC’s system has been known to make mistakes in the past.

CAUTION: Historically, the FCC’s fee calculator has NOT included fees for any auxiliary licenses that may be associated with the main license.  (We've told you about this in the past . . . and it's still true.)  Since separate fees are due for those auxiliaries over and above the main license reg fee, it’s very important to doublecheck your records and the FCC’s records to be sure that your payment includes the necessary fees for all applicable authorizations. Since a failure to pay even a single $10 fee for a remote pickup could result in the dreaded red light status, extreme care should be taken on this front.

Again, the specific dates for this year’s reg fee window have not yet been announced. Check back here for updates.

Update: Revised "White Space" Rules To Take Effect June 18

Last month we reported on an FCC action that may mark the end of the decade-long “white space” proceeding authorizing the operation of some unlicensed devices in the broadcast television bands. The Commission’s Third Memorandum Opinion and Order (3rd MO&O), released in early April, disposed of a handful of petitions for reconsideration of the agency’s 2010 decision which had in turn tweaked technical “white space” specs adopted back in 2008. The 3rd MO&O has now been published in the Federal Register, which means that, barring any extraordinary intervening event (like the issuance of a stay – the approximate likelihood of which is pretty much zero), the rules as modified last month will take effect on June 18, 2012

2012 Reg Fees Proposed: Up, Up and Away!

The FCC has performed that annual rite of spring – its announcement of proposed regulatory fees for 2012. These are the reg fees that, for the vast majority of Commission regulatees, will be due and payable by a to-be-announced date (probably sometime in August or September). As with most ritual activities, there are no real surprises here: the rates are, with very few exceptions, proposed to go up. 

In general, the Commission figures that broadcast-related reg fees should get bumped up between 4-7% or thereabouts, depending on the type of facility in question and the market in which it’s located. There are some exceptions, though. For example, commercial VHF TV stations in Markets 51-100 would enjoy a nearly 9% reduction (amounting to $2,205) compared to last year’s fee, if the FCC’s proposal holds. And fees for UHF stations in Markets 11-25 would drop $1,000 (about 3%) from last year’s levels.

We’re attaching a grid providing the proposed 2012 fees along with some comparative information showing the changes from the fees actually imposed last year. (Red entries reflect 2012 fees that would go up over last year’s fees; the small handful of green entries reflect fees that would go down this year.)

As always, the Commission is giving everybody a chance to comment on the proposed fees. If you’ve got something to say about the proposals, you’ve got until May 31, 2012 to file comment with the Commission. Reply comments may be filed until June 7

Over and above the fees themselves, this year’s Notice of Proposed Rulemaking (NPRM) contains a couple of elements of interest.

First, as the Commission hinted last year, this year’s fee calculations are based on 2010 U.S. Census data. That’s particularly important for AM and FM stations, since their fees vary based on the population each station serves. The 2010 Census data hadn’t been fully firmed up and finalized as of last year, so the Commission opted to use 2000 data to calculate the populations served for the 2011 fees. But now the 2010 data are set, so they’re the ones the Commission has used for this year’s fees. Anybody who disagrees with this should feel free to file comments letting the FCC know.

And as was the case last year, with respect to Class A, LPTV and TV Translator stations

a fee will be assessed for each facility operating either in an analog or digital mode. In instances in which a licensee is simulcasting in both analog and digital modes, a single regulatory fee will be assessed for the analog facility and its corresponding digital component.

This approach is likely to change as “greater number of facilities convert to digital mode”. Still, for the time being – and, apparently, at least for this year – it looks like the policy of exacting only one reg fee per Class A, LPTV and TV Translator license will stay in place.

The Commission has proposed an interesting new procedural wrinkle. It’s planning on requiring that any request for a refund, waiver, fee reduction or deferment of any reg fee (or apparently, any application fee) be submitted electronically, rather than the old-fashion hard copy way. This change is part of an agency effort to improve the way it provides public information about the filing and disposition of waiver requests. The NPRM doesn’t go into any detail about the mechanics of any particular electronic filing system the Commission may have in mind. Rather, the NPRM just asks for comments on the general concept of mandatory electronic filing of waiver requests and the like.

Again, the NPRM – and the fees described in it – are still only proposals. We won’t know the final fees until sometime this summer, although experience suggests that the final fees aren’t likely to stray too far from the initial proposals.

Check back here at CommLawBlog.com for updates.

Dead Men File No KidVid Reports

Tales from the crypt: Video Division reaches into grave to yank Class A tickets

 We have previously written about the Commission’s apparent quest to move as many Class A television stations back into the LPTV category as possible.  Presumably this quest is motivated by the Commission’s seemingly all-consuming urge to free up as much TV spectrum as possible for “repurposing”. 

That urge has now driven the Commission’s Video Division to reach into the grave to take a couple of Class A authorizations back from a dead guy. (The two orders may be found here and here.)

The case involves two Class A – er, one-time Class A, at least as of today – stations in Texas licensed to a gentleman named Humberto Lopez. Back in March, 2011, when the stations were both still card-carrying members of the Class A Universe, the Video Division asked how come Mr. Lopez apparently hadn’t filed children’s TV reports (FCC Form 398) for 2006, 2007, 2008, 2009 and 2010. Commission records revealed no such reports, so the reasonable assumption was that no such reports had been filed – but the March, 2011 inquiries were designed to give Mr. Lopez the chance to set things straight.

Wouldn’t you know it, Mr. Lopez died in May, 2011, within a month or two of the FCC’s inquiries. It’s hard to respond to FCC questions where you’re, um, dead.

The Commission followed up its March, 2011 inquiries with more inquiries in August, 2011. By then, of course, Mr. Lopez was long gone, although, in fairness, the Commission may not have been aware of the licensee’s unfortunate demise at that point.

But the Commission was for sure aware of his demise by November, 2011, when the executor of gone-but-not-forgotten Mr. Lopez’s estate filed an application (FCC Form 316) for consent to the assignment of the license to the executor. Such applications are standard operating procedure; they are routinely granted in a matter of days.

Not so in this case. According to CDBS, that 316 is still pending, more than five months after it was filed.

Of course, until that application is granted, Mr. Lopez technically remains the licensee, and his executor (who is not the licensee) is technically not in a position to respond to inquiries directed to the licensee.

So what does the Video Division do? Knowing that the licensee is dead, and knowing also that the licensee’s executor is not in a position to formally respond to Commission inquiries addressed to the licensee, the Video Division issued show cause orders to Mr. Lopez in February, 2012. Those orders proposed to reclassify the two Class A stations to LPTV status. 

To no one’s great surprise, Mr. Lopez, being dead and all, did not respond to those orders.

And now the Division has held that, because of his lack of response, the Division will “deem him to have accepted the modification of [his licenses] to low power television status”.

We understand that the Commission is on what it perceives to be a desperate quest for TV spectrum. And we get that Class A stations that no longer qualify for Class A status may look like low-hanging fruit in that quest. But really, is the Commission so desperate that it has to engage in grave-robbing?  Since Mr. Lopez had been dead for nearly a year by the time the Division issued its show cause orders, isn’t it more than a little inappropriate for the FCC to draw any conclusions from his failure to respond to those orders?

It may be true that the late Mr. Lopez failed to file KidVid reports. But that doesn’t necessarily mean that he didn’t air the programming or place appropriate reports in his public files. Wouldn’t it be at least fair (not to mention decent) to grant the Form 316 application and then accord the new licensee a reasonable time to investigate the situation and respond accordingly? 

In the alternative, shouldn’t the Commission try to check – maybe with a Ouija board – exactly what the licensee meant by not responding?

FCC Adjusts "White Space" Rules

Minor changes may signal an end to almost a decade of rulemaking.

The FCC has released yet another decision in its long-running effort to implement rules allowing unlicensed “white space” devices in the television bands. The latest revision does not represent any wholesale changes, but will make it easier for some devices to operate.

White space devices (TV Band Devices or TVBDs, in the FCC’s nomenclature) rely on the fact that every location has some TV spectrum not being used. Those vacant frequencies typically show up as white spaces on a map of spectrum occupancy – hence the name. Technical studies show that properly controlled unlicensed devices can use these channels without causing interference to TV operation and other authorized users, including wireless microphones.

Following a Notice of Inquiry late in 2002, and a 2004 Notice of Proposed Rulemaking, the FCC first adopted rules allowing white space devices in 2006, but left the technical specifics for a later date. Those came in 2008, and then in 2010 the FCC responded to petitions for reconsideration with a number of revisions. Now the FCC has addressed petitions for reconsideration of the 2010 order.

The rules categorize each white space device as either fixed or mobile. A fixed device must have its location either professionally programmed in or determined by an on-board GPS device, and is subject to limits on operating power, antenna height, and antenna gain limits. Before operating, it must query a database of available spectrum for its location. A mobile device may similarly use GPS to determine its location and then query a database (Mode II devices); alternatively, it can contact another white space device that will in turn query the database (Mode I devices). The FCC has so far approved ten private companies to administer the databases, of which two have completed testing to the FCC’s satisfaction.

In its recent order disposing of the petitions for reconsiderations, the Commission provided the following changes and clarifications:

 Antenna Height. The 2010 rules limited fixed device antenna heights to a maximum of 30 meters above ground, and the height above the average terrain (HAAT) to no more than 76 meters. Several parties requested reconsideration of this restriction, particularly the HAAT portion. (According to one, the majority of the state of West Virginia would have been off-limits.) The FCC now allows fixed white space devices to have antennas up to 250 meters above average terrain, although still no more than 30 meters above ground level. At the same time, the FCC revised the separation distances between fixed white space devices and television contours to allow for the greater HAAT, but left unchanged the separations for wireless microphones and the exclusion zones around MVPD, LPTV, and BAS receive sites.  A device that provides database information to Mode I portable devices must comply with the previous HAAT limitations, so as to keep the Mode I device from straying too far from a known location.

Out-of-Band Emissions: The 2010 rules limited out-of-band emissions to 72.8 dB below the device’s highest in-band emissions. Now the out-of-band emissions are relaxed to 72.8 dB below the maximum power allowed within the 6 MHz bandwidth. The new order also cuts back the required occupied bandwidth from 6 MHz to 5.5 MHz, so as to ease the roll-off at the channel edges, and slightly increases the allowable power spectral density so as to leave total power unchanged.

Channel 52 Protection:  As part of the transition to digital television, the FCC auctioned former TV channels 52 and above for wireless use. The wireless companies have long sought restrictions on channel 51 TV operation to protect their frequencies just above, and similarly requested limits on white space devices on channel 51. The FCC refused, partly on procedural grounds, and partly on the principle that white space devices, being unlicensed, are already required to protect licensed wireless operations.

Classes of Devices: The FCC rejected a new class of white space device, similar to “Mode II” but for indoor use only, without GPS capabilities. The FCC feared these could be easily moved without updating their locations, thus creating interference. It also found the new class to be largely unnecessary, as Mode I portable devices may operate without geolocation (although they must query a Mode II or fixed device periodically).

Confidentiality of Database Information: The FCC makes publicly available all information required to be included in the databases that white spaces devices must search before operating.  A cable association asked the FCC to withhold certain data, including coordinates of cable headends and towers, claiming this type of equipment was “critical infrastructure” that could be subject to terrorist attack. The FCC disagreed with the premise and refused the rule change.

Finally, the FCC clarified two points. It emphasized that LPTV, television translator, and Class A television stations will have their receive sites protected based on the coordinates available in the existing CDBS database. The FCC will create a new web interface so that broadcasters can update the information. Second, the recent order corrects the coordinates of certain radio astronomy sites, which must be included in white spaces databases and protected by white spaces devices.

Most of the rule changes will take effect 30 days after publication in the Federal Register. Revisions to the filing of receive site information and entry of other information into the white spaces databases require OMB sign-off, and will probably take a few months longer.   Check back here for updates.

So far all of these rules control only a limited deployment in Wilmington, NC. But with the rules approaching final form, and more databases coming on line, white space devices may finally take the big step from PowerPoint to reality.

More Steps Toward TV Band Clearing

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.

Missing KidVid Reports Lead to $13K Fines for Class A Stations

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….

First Steps Toward TV Band Clearing Start

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.

Last year, the FCC started checking its own files to see whether Class A stations had been filing their quarterly Children’s TV Reports (FCC Form 398).  Licensees who hadn’t filed their reports received inquiry letters from the Commission in March, 2011. Follow-up inquiries to licensees who didn’t respond to the March letter were sent in August.  Now the FCC has proposed to revoke the Class A status of 16 stations that neither responded to the FCC letters nor filed their Children’s TV Reports. (Here’s a link to one of the 16 “Orders to Show Cause” issued; the other 15 are essentially identical to this one.)  If the threatened downgrades are implemented, the stations won’t be shut down, but will be downgraded to LPTV status. That may or may not end up as a one-way ticket to the gallows in light of the fact, noted above, that a downgrade to LPTV status could ultimately cause the LPTV to become a station without a channel as a result of the spectrum repurposing effort.

At least some Class A stations who received the Commission’s inquiries did respond and did bring their Children’s TV Reports up to date. As far as we know, involuntary downgrades have not as yet been proposed in any of those situations, but the 16 stations singled out so far may just be the beginning of a larger band-clearing initiative by the Commission.

Experienced FCC licensees know that it is never a good idea to ignore an inquiry from the agency.  And of course, failure to file required reports is inviting trouble.  Class A stations should be careful to do their paperwork within 10 days after the end of each quarter: 

  1. File a Children’s TV Report on Form 398 on the FCC’s website, with a paper copy in the station’s public file. 
  2. Place a list of significant community issues and responsive programs in the public file.
  3. Place in the public file records sufficient to demonstrate compliance with limits on commercial matter in children’s programs.  

Class A stations must also place in their public file sufficient documentation to demonstrate compliance with the requirement that they broadcast 18 hours a day (including at least three hours of locally produced programming per week), although there is no specific requirement to renew this documentation every calendar quarter.

Class A licensees derive important regulatory benefits from their status – the additional measure of protection accorded them in the spectrum auction law may be the most important such benefit. It is only a matter of common sense that routine steps – including regular filing of required reports – should be taken diligently to protect those benefits.

Update: Comment Dates Set for LPTV Digital Transition Recon Petitions

 Back in July, the Commission announced its plans for the final digital transition of LPTV/TV Translator/Class A TV stations. Those plans were hustled over to the Federal Register in less than two weeks, an apparent indication that the Commission intends to hold fast to the transition schedule it had plotted out. But seven parties – including NPR and the National Translator Association – have different ideas. They filed petitions for reconsideration of the Second Report and Order. Formal notice of the filing of those petitions has now hit the Federal Register, which means that anyone looking to chip in his or her two cents’ worth on any (or all) of the petitions has until November 30, 2011 to do so; reply comments can also be filed until December 12.

If you want to read any of the petitions, here are the links:

LPTV Digital Transition Report and Order Hits Federal Register: Effective Date - August 26

Well, that was quick. Wasting no time, the Commission has published its Second Report and Order (the one that starts the Final Countdown for analog LPTV/Class A TV/TV translator operations) in the Federal Register. That means the new rules – including the various deadlines for digital transition – will technically become effective on August 26 (even though the newly-effective deadlines themselves won’t start to roll around until December 31, 2011 – i.e., the deadline for vacating Channels 52-69 – and thereafter). FedReg publication also sets the deadline for petitions for reconsideration (that would be August 26 as well) and petitions for judicial review (September 26), should any interested parties be inclined to seek some kind of review.

Since the rule automatically extending digital CPs will become effective on August 26, stations with flash cut or digital companion permits expiring after that date need not file for extensions of the construction deadlines specified in their permits.  (We understand that those permits’ expiration dates will be reset by the Commission in CDBS – but in the “trust but verify” vein, you might want to doublecheck on that, just to be sure.)  Remember, though, that this automatic extension does not apply to CPs for new stations. If you have a CP for a new station and you won’t be able to construct by the permit’s expiration date, you’ll need to apply for an extension of time.

According to the latest notice, the only portion of the new rules that does not go into effect as of August 26 will be the revision to Section 73.624(g), which expanded the collection of fees for ancillary services to include digital LPTV station that are on the air but have not year received a final license. Since that change entails an information collection, it has to be approved first by the Office of Management and Budget. Check back here for updates on that front.

2011 Reg Fees Set

No significant changes from May proposals; look for a September filing window

Sometimes the best surprise is no surprise at all. And the FCC has surprised at least some of us with its release of the final 2011 regulatory fee schedule. The surprise? As it turns out, with one very minor exception, the final fees are identical to the fees the Commission proposed back in May. (The one exception: the fee associated with satellite TV construction permits is $670, which is a whopping $5 less than the fee that was proposed back in May.)

Click here for a handy table listing the final 2011 reg fees. We’ve also included in the table listings of the differences between this year’s fees and last year’s, in case you’re interested in that kind of thing.

If you wade into the fine print of the Report and Order accompanying the new fee schedule, you find some routine caveats. For instance, you’ll be expected to use the FCC’s Fee Filer system to pay your reg fees (no real surprise there), and the Commission will not be sending out hard copy “pre-bills” to let everybody know what they’re on the hook for (ditto). (Helpful tip: the information that you would have received in a paper pre-bill will be available at Fee Filer, but don’t forget to doublecheck that information – the Commission has been known to make mistakes, and its calculations have historically not included fees for any auxiliary licenses you might have.)

The Report and Order does include an interesting statement relative to low power TV/Class A/TV translator fees.

Because of the on-going transition to digital operation in that particular sector, LPTV/Class A/Translator licensees may be operating a single analog station, or a single digital station, or two companion stations (one analog, one digital). Regardless of the mode you’re in (i.e., digital or analog), the FCC will be looking for a reg fee from you. That’s not unreasonable. But then the Commission adds: “In instances in which a licensee is operating in both an analog and digital mode as a simulcast, a single regulatory fee will be assessed for this analog facility that has a digital companion channel.” Note, in particular, the phrase “as a simulcast”. It’s not clear exactly what that is intended to mean. 

Presumably, if you have two companion channels, each broadcasting identical programming (one in analog, one in digital), you’d only owe a single reg fee. And if you have two such channels but provide completely different programming on each, we’re guessing that the Commission expects you to pay two separate fees, one for each.

But what if you’re using the digital station to provide not only a digital version of the analog’s programming, but also streams of other, completely separate programming? Arguably you’d be operating the two stations as a simulcast, meaning you’d only be stuck with a single fee. But the fact that you’re providing additional programming on the digital station might mean that it’s not a “simulcast” as the Commission means it.  We don’t know what the answer to this seeming conundrum is, but if you’re in this situation, it would probably be a good idea to get the answer tied down before you pay.

And speaking of paying, heads up. The Commission cautions that the fees are due when they are due, payable in full, thank you very much. (Late filers get hit with a 25% late fee.) If you think you’re entitled to a full waiver, or even just a reduction, you’re supposed to tender the full amount by the deadline, along with your request for waiver/reduction. If you’d rather not tender any payment at all with your request, you’ve got to request a deferral of the deadline – and that request must be accompanied by a showing of financial hardship. In other words, you can’t just plead poverty and expect to avoid having to pay by the deadline; rather, you have to document your hardship at the time you request the waiver/reduction.

Which brings us to the question of deadlines. When are this year’s fees due? The Commission hasn’t announced that yet, but it does allude in passing to a “September 2011 filing window”. Looks like we may not have to forfeit the deposit on that August beach house rental after all. (Check back here for updates on the deadline front.)

Finally, the Commission wraps up its Report and Order with a commitment to revisit “the nature and extent of all changes that need to be made to our regulatory fee schedule and calculations”. That inquiry – which the FCC assures us will be initiated before the end of 2011 – may lead to a “re-assess[ment of] the regulatory fee burden of all fee categories” as well as a “rebalancing of regulatory fees among existing service providers”. The Commission has been toying with the notion of such a proceeding for years, but this time it seems to be serious about it. We’ll see.

Analog LPTV: The End is . . . September 1, 2015

Second Report and Order sets stage for the final countdown to final digital transition for LPTV/Class A TV/TV Translators

Apparently, when the Commission decides to crank out a groundbreaking item concerning some aspect of the DTV transition, the time to do it is Friday – late Friday. (Who can forget consecutive Friday the 13ths in February and March, 2009, for example?) So it shouldn’t have surprised anybody when, around dinner time on July 15, the FCC released its long-awaited Second Report and Order (2d R&O) announcing a final end of the Class A TV, Low Power Television and TV Translators (we’ll call all three “LPTV” in this post) digital transition. Mark your calendars – the analog LPTV curtain is now set to fall on September 1, 2015, unless the LPTV operation (analog or digital) is on Channels 52-69, in which case the operation must shut down on December 31, 2011, regardless of whether the licensee has been able to find an available lower channel. But if you have a companion channel or flash cut CP, you now have until September 1, 2015 to build.

Here’s a summary of the primary aspects of the new rules governing the end of analog LPTV:

Analog Curtain Lowers. LPTV licensees have been in digital limbo for years, allowed to convert to digital voluntarily but not knowing for sure when they would be forced to join the DTV ranks. Getting the allotment of full power DTV channels squared away was one factor that had to be resolved first – but that occurred two years ago. In the meantime, though, the Commission has embraced the notion of “repacking” the spectrum to squeeze out more space for broadband use by removing up to 20 broadcast TV channels. The anticipated “repacking” process is almost certain to affect a sizable number of full power DTV allotments, which would in turn affect the spectrum available for digital LPTV.

Recognizing that it would be rather harsh to impose a digital transition deadline on LPTV stations before the effects of the anticipated “repacking” program can be known, the FCC figures that a four-year transition period, ending on September 1, 2015, should provide adequate time for all concerned. (The FCC does not agree with commenters who urged that marketplace forces should be allowed to dictate the pace of the transition.)

The FCC has encouraged NTIA to ask Congress to extend the existing program for reimbursing LPTV digital transition costs. Some $30 million remain in unspent funds in that program. The FCC does not discuss either: (a) the program’s statutorily-mandated eligibility criteria, which strongly favor the most rural stations and completely exclude urban stations; or (b) the program’s dollar limits of $6,000 and $20,000, neither of which fully covers conversion costs.

No More New Analog Licenses. The 2d R&O affirms the FCC’s earlier decision to dismiss all pending applications for new analog LPTV stations that were not amended by May 24, 2010, to specify digital operation. No surprises there.

Relief for the Nervous. Digital equipment is expensive, money doesn’t grow on trees, and banks are not known for their generosity.  To ease these burdens, the FCC has automatically extended all currently outstanding digital CPs for flash cuts (i.e., on-channel conversion to digital) or digital companion channels for existing analog stations. No matter when those permits were issued or how many extensions were previously requested, all these permits have now been extended to September 1, 2015. 

Construction permits for new stations have not been automatically extended. All such existing permits and future permits will expire three years after issuance. Moreover, if someone holds permits for analog and digital companion channels, both unbuilt, the earlier expiration date on the analog permit will remain the expiration date for both permits. However, the permittee need not build out the analog station to save the digital permit. Construction of just the digital facility will be sufficient; once the digital facility has been built and licensed, the associated analog permit will be canceled.

Any digital permitee who can’t get its digital facilities built by September 1, 2015, will have one last opportunity to apply for an extension (based on factors such as Acts of God, unforeseeable circumstances, circumstances beyond the permittee’s control, and financial hardship). All such extensions must be requested no later than May 1, 2015; any extensions granted will expire March 1, 2016. Anyone needing more time than that will have to request “tolling” of their construction period under Section 73.3598.

Out of Core, Out of Luck. Stations (analog or digital) operating on “out-of core” Channels 52-69 will not enjoy the benefit of either the 2015 deadline or the extension process. They must stop operating by December 31, 2011 – no exceptions – and must file an application for an “in-core” channel (Channels 2-51) by September 1, 2011Channel change applications filed after that date will be dismissed. 

Waivers of the filing deadline may be requested; but in no event will continued operation above Channel 51 be permitted after the end of 2011. The FCC believes that clearing LPTV operations from the out-of-core channels will facilitate the prompt deployment of 4G LTE services in the 700 MHz band. As has been the case for some time, wireless 700 MHz band licensees ready to operate can still force LPTV stations to vacate out-of-core at any time on 120 days notice, even before December 31, 2011.

The Commission means business when it comes to clearing the out-of-core channels: stations still awaiting approval of new in-core channels at the end of this year must go dark and risk permanent loss of their license if they remain dark for more than one continuous year. Stations facing that draconian fate may escape the noose by requesting Special Temporary Authority to operate on an in-core channel pending grant of a permanent grant.

Let the World Know You Are Moving. Veterans of the 2009 full power DTV transition will recall the extensive consumer education campaigns mandated by the Commission to alert viewers to the practical consequences of the transition. The FCC contemplates a similar campaign as LPTV stations complete the transition, but details have been left for later.  While the FCC may eventually adopt most (if not all) of its 2009 approach, for now the only requirement is that licensees broadcast announcements 30 days before terminating analog operation if they have program origination capability. (Stations lacking such capability must find another way (e.g., newspaper notices) to publicize their transition.) Broadcast announcements must be aired at the time of each station’s peak viewing, but frequency and content are left to individual station discretion. Stations already transmitting digital signals (having already shut down their analog service) do not have to make any announcements.

Minor Change Definition Tightened. LPTV stations applying for displacement to a new channel are restricted to a 30-mile change in transmitter site. Other changes may exceed that distance and still be classified as “minor” as long as there is any overlap of licensed and proposed protected service contours. The FCC will now impose the 30-mile limit on all minor changes in addition to the contour overlap requirement: any application not meeting both standards will be deemed a “major” rather than a “minor” change. That distinction is crucial here, since there’s a freeze on major change applications (as well as new applications) currently in effect – so absent a waiver of the freeze, a major change application will be returned by the FCC.

More Juice in the Lowlands. The FCC’s spectrum repacking proposal may include moving LPTV stations to available VHF channels. VHF has not been favored by full power TV stations who feel it’s inhospitable for digital service generally and mobile services in particular.   Not surprisingly, LPTV stations – most of which are not on cable or satellite – see any move to herd them onto the VHF band as another way to crush them, although some have talked about possible use of VHF for alternative modulation schemes. The 300-watt LPTV VHF power limit has also proved vexing for LPTV stations, compared to the 15 kW UHF power limit. 

To enhance the attractiveness of VHF, the FCC has increased the LPTV power limit by 10 times, to 3,000 watts, on all VHF channels. (The Commission did not address proposals to allow more power to high-band VHF Channels 7-13, but the universal 3 kW limit should still be attractive to many stations. It also declined to increase the 15 kW UHF power limit since most LPTV stations can already cover their communities of license amply at that power level.)

More Masking Choices. All TV stations wear “emission masks” which curtail unintended signal radiation outside of their assigned channels. Historically, LPTV stations have had only a choice of a “simple” or a “stringent” mask, both of which are more relaxed and less expensive than the mask used by full service stations. The FCC will continue to allow simple or stringent masks but will now also allow LPTV stations to use a full service mask on a voluntary basis. A full service mask will allow more LPTV stations to find available channels or to improve their facilities, as it will reduce instances of interference to first-adjacent channel stations.

Antenna Pattern Flexibility. LPTV stations currently file information about their directional antenna patterns in the horizontal plane, but the vertical pattern is assumed under Section 74.793(d). Reliance on assumed values keeps some stations from complying with interference requirements. To counter that, the new rules permit stations use their actual vertical pattern in interference calculations. Application forms will be revised to accommodate individual station pattern values. Submission of actual vertical pattern data will be voluntary; stations not submitting actual data will continue to be evaluated based on an assumed pattern. (Interesting unresolved strategy question: The FCC does not say whether a station that would benefit from the actual pattern of another station can file the pattern for the other station if the other station does not submit its own pattern.)

Class A Stations Get To Choose their Channel. An LPTV station with both an analog and a companion digital channel is already permitted to choose either channel as its permanent digital home when analog service is terminated. If they want to stay on their digital companion channel, they only have to file an electronic notice that the analog station has gone dark with an exhibit electing the digital channel. If they want to move their digital operation to their analog channel, they must file a flash-cut construction permit application and then shut down the companion channel when the application for a license to cover digital operation on their analog channel is filed.

Class A stations have not previously enjoyed this flexibility: only their analog channel had primary spectrum (i.e., Class A) status, while their companion digital channel was deemed to have the same secondary status as LPTV stations. Class A stations with both analog and digital operations will now be free to elect either of their channels for permanent digital operation. They can apply for a construction permit to flash-cut their analog channel or may migrate their primary status to their digital channel without a CP by simply filing a Form 302-CA license application for the digital channel. That application must include a certification that the digital channel complies with all Class A interference requirements.

Pay the Piper. Both full power and LPTV licensed stations that provide non-broadcast ancillary services (such as digital data) in addition to video program streams are required to file Form 317 in December of each year and pay 5% of their gross ancillary services revenues to the government. Digital LPTV stations operating under an STA without a license have been exempt, but no longer. All digital LPTV stations must now file Form 317 each December. If they have no ancillary services, they may so state and pay nothing. (While some licensed stations without any ancillary services have not filed Form 317, the form is so easy to complete that it seems more prudent to file than to risk an FCC inquiry as to why no report was submitted.)

Enough is Enough. Interested observers will note that the 2d R&O leaves unresolved a number of proposals, including: refusing to accept supposedly unrealistic antenna patterns that may not be achievable in practice; authority to lease part of a TV channel to wireless service providers; classification of analog Channel 6 operation as an ancillary service, to permit it to continue after 2015; relief from the freeze on applications for new stations and major changes; relaxation of eligibility requirements for Class A status; and authorization for alternative forms of signal modulation other than the current ATSC digital standard.

When Does the Race Start? The new rules will become effective 30 days after publication in the Federal Register. (Check back here for updates on that front.) Some aspects of the new rules (the FCC doesn’t say which) involve “information collections” requiring prior approval by the Office of Management and Budget under the Paperwork Reduction Act. Getting that approval could add a couple of months to the effective date. We hope to learn next week whether applications proposing full service emission masks and Class A channel elections may be filed immediately or must await the effective date of the new rules.

2011 Reg Fees Proposed: Going Up!

Remember last Spring, when the FCC issued its proposed 2010 reg fees and they had all gone down from the previous year, so we got all excited, and then when the final 2010 fees were announced, they had gone back up again and we were disappointed? Good news! This year, the FCC is sparing us that emotional whipsaw. It has just released its proposed 2011 regulatory fees, and with only few exceptions, they reflect increases – in some cases, significant increases – over last year’s numbers. This way, we won’t be surprised and disappointed in a couple of months when the final fees are announced.

While pretty much everybody’s fees are proposed to go up, the folks who would get hit hardest are full service UHF TV in Markets 11-25 and Market 26-50. Their fees would increase by 9.5% and 10.8%, respectively. We have prepared a table reflecting the proposed 2011 reg fees here. The numbers in parentheses reflect the amount of the proposed changes from last year’s fees – as a visual aid, we have indicated proposed fee increases in red, and proposed reductions in cool green.

As always, the Commission is giving everybody a chance to comment on this year’s proposed fees, but you’ll have to act fast. The deadline for comments on the proposed fees is May 24, 2011; reply comments may be filed through June 1.

This year’s notice includes a couple of noteworthy points.

First, in recognition of the fact that the digital TV transition continues on for LPTV, TV Translator and Class A licensees, the Commission observes that

a fee will be assessed for each facility operating either in an analog or digital mode. In instances in which a licensee is operating in both an analog and digital mode as a simulcast, a single regulatory fee will be assessed for this analog facility that has a digital companion channel.

The Commission may revisit its instructions on this point “[a]s greater numbers of facilities convert to digital mode”.

Second, this year the FCC will not be sending out “pre-bill” reminders to broadcasters advising them of the fees they’re being assessed. All that information should be available on the FCC’s website, though.

Third, on the AM/FM side, the Commission notes that a station’s fee is based in part on the population it serves. Populations tend to change every ten years when the Census is completed and released, and such changes could affect radio licensees’ reg fees. But not this year. Even though the latest Census was technically completed last year, its results are still unofficial and subject to change – which means that this year’s regulatory fees will be based on the 2000 Census, not the 2010. (Additional rationale: since 2011 reg fees are calculated based on the subject station’s status as of October 1, 2010, the FCC thinks it would be “inappropriate” to rely on incomplete 2010 population figures.)

The proposed fees are just that – proposals. We won’t know the final fees until sometime this summer, although historically the final fees tend not to stray too far from the initial proposals. We also do not yet know when the fees will be due, although that tends to be in August or September. Look for an announcement sometime mid-Summer.

Update: Revised Forms Head To OMB

The mills of bureaucracy grind slowly, but they do eventually grind. 

Last October we reported on changes to the broadcast license renewal application form (Form 303-S) that were in the works. Those changes appear to have passed the first bureaucratic hurdle: having invited public comments (which were due by December 13) and then having waited a decent interval (that would be about two days), the Commission has passed its proposed changes along to the Office of Management and Budget for OMB’s review. Notice of that development has now been published in the Federal Register. This gives everybody yet another opportunity to toss in any comments they might have about the revised form – but this time those comments should be directed to OMB. If you’ve got anything to say to OMB, you’ve got until January 26, 2011 to say it. Once that deadline has come and gone, look for the revised form to be officially released by the Commission, just in time for the next round of renewal applications which are due by June 1.

And along the same lines, the Commission’s efforts to plug a loophole have advanced to OMB. You may recall our post from last November, addressing the question of whether or not digital LPTV, Class A TV and TV translator stations were expected to file Form 317 in December. (Form 317 is the annual “Digital Ancillary/Supplementary Services” report in which digital TV stations tell the Commission whether they’ve aired any subscription-like services on any of their digital streams.) While there were ample indications that the Commission might have intended LPTV, Class A and translator licensees to file – and while some such licensees may already have been filing the reports out of excess of caution – the Commission hadn’t bothered to amend Form 317 to include such stations within its reach. And without a properly revised form, LPTV’s, Class A’s and translators were off the hook.

The Commission figured that out last Fall and started to amend its form, but it was too late to do any good before the December 1 deadline for this year. But next year is a different story. The revised form has now been shipped over to OMB for its once-over. Interested parties have until January 26, 2011 to submit comments to OMB. Given the 11-month headstart, we fully expect that the revised Form 317 will be awaiting all LPTV, Class A and translator licensees come the next deadline in December, 2011.

Do Class A, LPTV And TV Translator Stations Have To File Form 317 This Year?

Answer: Apparently not, but enjoy it while it lasts, because next year will likely be a different story.

As all full-power DTV licensees and permittees presumably know, the FCC requires that they file a “Digital Ancillary/Supplementary Services” report on Form 317 on or before December 1, a deadline which is fast approaching. But does that requirement apply as well to digital Class A television, LPTV, and TV translator licensees? 

The short answer is apparently not, thanks (it seems) to our old friend, the Paperwork Reduction Act (PRA).

Form 317 is used to report whether, during the 12-month period ending the preceding September 30,  a DTV station has provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If there were any such services, the licensee/permittee must fork over five percent of the gross revenues it received. (Ancillary or supplementary services are defined to include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal. Multiple video streams that are received free by the public are not considered to be ancillary or supplementary services.) Originally the requirement applied only to full-power stations.

So far, so good.

But then the Commission got to considering what should happen if and when Class A television, LPTV, and TV translator stations were to begin the big move to digital. Way back in 2001, the Commission decided that it would allow digital Class A TV stations to offer ancillary/supplementary services, and that it would apply to them the same reporting and revenue payment requirements in place for full-power stations. Then in 2004, the Commission decided that, along with other rule changes, it would also apply the Form 317 requirements to digital LPTV and TV translator licensees. Both in 2001 and then again in 2004, the Commission indicated that it would change the instructions to FCC Form 317 to reflect the new groups required to file. It also revised its rules to refer specifically to the fact that Class A’s would be required to file.

But a job is never really done until the paperwork’s been completed, and it appears that the Commission came up a little shy in that department. 

First, the Commission didn’t bother actually to revise the form. As a result, even today the instructions still call for only digital television licensees and permittees to file, with no mention at all of Class A, LPTV or TV translators. Mind you, the instructions have been changed in the interim to specify permittees in addition to licensees as required filers. That change was made to conform with a 2008 expansion of the universe of filers (originally, only licensees, but not permittees, were required to file). But the low power services remained forgotten. 

Second, and perhaps as a result of the first issue, the Commission never bothered to ask the Office of Management and Budget (OMB) for its approval to impose the Form 317 reporting requirement on the low power universe – a step which is required by the PRA, as the FCC has acknowledged both generally (here) and with explicit respect to the inclusion of Class A’s, etc., in the Form 317 club.

Oops. 

(OMB records indicate that, between 2004 and today, the FCC twice sought OMB approval of Form 317 revisions, but in neither of those submissions did the FCC even allude to, much less specifically address, Class A, LPTV or TV translators.)

Whether the FCC’s past failure to follow up on this was a matter of design or inadvertence, the Commission appears finally ready to take the official plunge. In October, the Commission published a notice in the Federal Register (a) advising of its plan to revise Form 317 to require Class A TV, LPTV, and TV translator stations to file, and (b) requesting comments on that plan. After any responsive comments have been filed, the FCC will ship the revised form off to OMB for its review. But since the initial deadline for comments to the Commission isn’t until December 20, OMB isn’t likely to see the proposed revision until late December/early January, at which point OMB will invite another round of comments.

These circumstances appear to make it impossible for Class A TV, LPTV, and TV translator stations to be required to meet the December 1 Form 317 filing deadline. 

Even if Form 317 is not filed, a Class A or LPTV station has to pay 5% of ancillary services revenues to the government. Some have filed Form 317 to establish on the record that they do not in fact owe any fees. But for those who prefer to minimize paper work (even electronic paper), the FCC cannot take any enforcement action this year against those who do not file.

Be ready for next year, though!

The Big Chill: LPTV Plunged Into Deep Freeze

FCC announces immediate freeze on applications for new/major change digital LPTV/TV translator permits

With no warning – as is almost invariably the case when it comes to freezes – the FCC has terminated acceptance of any applications for new low power TV or TV translator stations or major changes in existing stations in all areas, rural and non-rural alike. The freeze is effective immediately with the release of its October 28 Public Notice.

The imposition of this freeze marks an ominous reversal. After an earlier freeze of several years, the FCC began accepting LPTV/translator applications in rural areas only in August, 2009, with the further promise of an opportunity to file for non-rural areas within a matter of months.  Initially, that later opportunity was to open up in January, 2010, but it never materialized. The January date first got pushed back to July, and then was postponed indefinitely

The reason? The need to evaluate “reallocation and repacking” proposals and their impact on future licensing of low power television facilities. That, of course, refers to the Commission’s stated goal of re-purposing some 120 megahertz of TV spectrum for use as part of the National Broadband Plan.

The supposed dearth of broadband spectrum has been thought to be concentrated in urban areas – which would suggest that the Commission should have no problem leaving open the filing window for rural stations. But FCC staff have also suggested that wireless companies will not be satisfied unless they have a swath of clean spectrum that is available nationwide.  The fact that this latest freeze slams the window shut on rural applications, too – a fact which will paralyze the growth of rural translators to relay new full power digital program streams as well as new locally-oriented LPTV stations in small communities – suggests that the FCC is indeed working to keep the possibility of such a clean, nationwide swath in play.

There are a couple of narrow exceptions to the freeze: Applications for displacement relief will continue to be accepted from stations above Channel 51 or those who are truly forced off their channels; ditto for flash-cut and digital companion applications by existing LPTV stations.

Processing of previously filed applications is not mentioned in the FCC’s notice, so presumably  those applications will continue to move through the pipeline. Applicants already on file would do well to keep their fingers crossed.

Comment Deadlines Set In Analog LPTV Transition Proceeding

Deadlines have been set for comments and reply comments in the proceeding aimed at closing down the remaining analog over-the-air TV signals. We described the Further Notice of Proposed Rulemaking and Memorandum Opinion and Order when it was first released back in September. Now it has been published in the Federal Register, which means that comments are due by December 17, 2010, and replies are due by January 18, 2011. Since the transition of full-power television stations to digital back in June, 2009, the only analog OTA TV service has been provided by LPTV’s, Class A’s, and TV translators. The FCC’s initial thinking (as reflected in the NPRM) would have all remaining analog service terminate sometime in 2012 (and all analog operations in the 700 MHz band clear out by the end of 2011). Anyone who believes that those goals might be a trifle unrealistic should be sure to let the FCC know during the comment period.

Analog LPTV: The End Is Near . . . Maybe Really Near

Among other transition-related details, Commission proposes 2012 termination for analog LPTV service, even earlier clearing of LPTV from 700 MHz band channels

The FCC says it’s time to close the lid on the analog TV coffin for good. In a Further Notice of Proposed Rulemaking and Memorandum Opinion and Order (NPRM), the Commission has started the ball rolling for the final shut down of all remaining analog Class A, LPTV and TV Translator stations (for convenience, we’ll simply refer to them all as “LPTV”). 

Full-power TV licensees were required to abandon analog and embrace digital no later than June 12, 2009. While the Commission has, since 2004, permitted LPTV stations to convert to digital, it has not made the conversion mandatory. But now that the full-power conversion deadline has come and gone, the Commission believes that LPTV operators should also be herded into the digital corral. So the Commission is seeking comment on a number of proposals for accomplishing that goal. 

The proposals include a hard – and fast-arriving – deadline for all LPTV stations to convert to digital operation. Another proposal would impose an equally hard – but faster-arriving – deadline for all LPTV stations (whether analog or digital) to clear out of Channels 52-69.  (Channels 52-60 comprise the 700 MHz band which was cleared of full-power TV stations and allocated to commercial and public safety wireless services years ago. LPTV stations have been permitted to stay on in that band on a non-interference basis – until now.)

The NPRM is light on the specifics of the final mandatory conversion process. As envisioned by the Commission, the Media Bureau would be responsible for devising and implementing the nitty-gritty details. But the Commission has laid out a number of questions for comment.

Digital Conversion Deadline – 2012. However the digital transition for LPTV stations may shake out, the FCC currently thinks that it should be wrapped up sometime in 2012 (i.e., “approximately three years after the June 12, 2009 full-power transition date”). 

A 2012 deadline for finishing the process? The FCC understands that this deadline may be a problem. But it figures that most, but not all, full-power stations made the transition in only about four-five years, and many LPTV stations have already availed themselves of the opportunity to convert to digital. With knowledge gleaned from that transition experience, the Commission speculates that three years might be enough finish up with LPTV. 

Of course, that three-year period would start as of the full-power transition date, June 12, 2009 – meaning that more than one-third of the time has already passed. Telling LPTV stations in September, 2010, that their digital transition countdown started 15 months ago is a bit of a stretch. On top of that, there are some 7,500 LPTV stations compared to only about 1,800 full-power stations. The logistics alone (e.g., equipment manufacture, installation, tower rigging) for all these stations are not likely to permit completion by a deadline barely two years away.

Further complicating matters is the National Broadband Plan (NBP).  Among its various ambitions, the NBP would repack the TV spectrum to free up 120 MHz of TV spectrum for broadband. That would reduce the spectrum available for all over-the-air TV considerably – so much so that many LPTV stations may not be able to find suitable new homes. The idea of spending a lot of money to convert to digital, only to have to change channels again or even be shut down a year or two later by broadband, is unsettling, if not terrifying. 

The FCC is not oblivious to these problems, but it may be a bit unrealistic about possible solutions. For example, the NPRM mentions an NTIA grant program to help pay for the cost of digital transmitters. But it fails to mention that: NTIA is limited by statute to funding rural stations; grant maximums are $6,000 and $20,000, far below the cost of a digital transmitter; and grants are made only after the grantee has shelled out its own cash to buy the equipment. (The NPRM does solicit comments detailing the anticipated practical considerations – including particularly conversion costs – that LPTV stations are likely to face.)

The Commission also wants to know what kind of community outreach efforts it should plan for the LPTV transition. How many of the bells and whistles imposed ad nauseam during the full-power transition (e.g., audience-education efforts, call-in centers, re-scanning instructions) should be dusted off and re-deployed?

And the FCC invites comments on whether the deadline should be later, perhaps 2015, and whether exceptions should be made in hardship cases or communities where LPTV is the only available over-the-air TV service.

However much LPTV stations may be quaking in their boots at this point, the fact remains that more than half have already applied to the FCC for some kind of digital conversion, and the current pace of digital applications is pretty brisk. The real question is how many stations still feel that there is any audience for their analog signals and, as a result, want to postpone conversion to continue to serve that analog audience. Some suggest that minority and niche audiences and rural residents often served by LPTV stations still have a lot of analog receivers, but statistics are not plentiful.

700 MHz Band Clear-Out Deadline – December 31, 2011. Turning to Channels 52-69, the FCC says that enough is enough. Whether or not those channels are being put to use by their non-broadcast licensees, it’s time to clear out the broadcast hold-overs – all of whom happen to be LPTVs. Now that the full-power transition has come and gone and full-power stations are no longer taking up two channels each, channels in “the core” (i.e., below 52) are as easy to come by as they are going be. 

Accordingly, the FCC proposes to require all LPTV stations on Channels 52-69 to apply to move to lower channels by June 30, 2011, and to move there by December 31, 2011. 

There may be some practical problems with that ambitious schedule. Can the FCC process all these applications in six months? How fast can the FCC resolve conflicts if two stations apply for the same channel? The answer, we suspect, is that those who wait until the last day to file applications will pay the price: earlier filers will have more time to work out kinks in their FCC applications and get grants, leaving them time to build; and since applications are processed on a first-come, first-served basis, conflicts should arise only if two stations file on the same day. 

Additionally, the NPB repacking plan could gum up the works here as well. The scope of the repacking proposal might be clear before June 30, 2011, but then again it might not – in which case the process of picking a lower channel, and then obtaining authority to use it, may turn out to be risky business.

The Freeze Is On. Effective immediately, no more applications will be accepted for new analog LPTV stations on any channel. Existing stations on Channel 52-69 may no longer request analog modifications except in extreme hardship cases (think involuntary loss of transmitter site), and no new digital companion applications will be accepted on Channels 52-69, even if no lower channel is available.

“Minor” Change?   The FCC proposes to limit transmitter site changes in “minor” change applications to 30 miles. Currently, a proposed change is “minor” if there is any overlap between the old and new service contours. By proposing a smidgen of overlap, some stations have succeeded in moving long distances into new markets, including urban markets. As proposed in the NPRM, moves of more than 30 miles would be deemed “major” changes, which are currently forbidden in urban areas. (The FCC says it plans to remove geographic restrictions on first come, first-served applications for new stations and major changes – although it doesn’t say when.)

VHF To The Rescue? With the likelihood of NBP-induced spectrum scarcity in mind, eyes are turning to VHF channels, which aren’t suitable for broadband (and not ideal for digital television, either). The FCC nevertheless asks whether VHF channels may become a good home for digital LPTV stations, and it offers the carrot of a power increase above the present 300-watt limit. VHF LPTV stations, particularly those on Channels 7-13, have been clamoring for more power for several years, and the door may now be open to meet that need. In fact, the FCC invites comments on whether power increases and/or changes in interference standards are needed for all digital LPTV stations.

Channel Surrender.  Analog LPTV stations with companion digital channels have, as a matter of policy, been permitted to terminate analog operation and either keep their companion digital or move their digital operation to their analog channel. The FCC proposes to make that policy permanent. In the past, Class A stations have not enjoyed the same degree of choice, because their companion channel was not afforded Class A spectrum priority. Now the FCC proposes to give Class A stations the same ability to choose to operate digitally on their analog channel or their companion channel, and whichever channel they select will be granted Class A status. This change will be of significant benefit to Class A stations whose analog channels are not suitable for digital operation and who thus have little choice but to stick with their companion channel and need a way to retain Class A status.

Vertical Radiation Patterns/Emission Masks. LPTV antennas do not always have the same horizontal and vertical radiation patterns, but FCC interference studies are based on only the horizontal plane and assumed vertical characteristics which may not accurately depict actual operation. The FCC now proposes to require vertical pattern information in applications for new or modified stations. Existing stations not making changes may either: (a) file their vertical pattern or (b) continue to rely on the old assumptions. 

The FCC also proposes to allow the use of a full-power TV digital emission mask by LPTV stations, in addition to the previously authorized simple and stringent masks. Because the full power mask exceeds the performance of a stringent mask, it will allow more digital LPTV stations to avoid predicted interference to first-adjacent channel stations, opening a door for some applications that were previously stymied.

Ancillary/Supplementary Services Fee. Digital stations – LPTV and full-power – are permitted to provide the same subscription-based, non-broadcast ancillary services on their spare digital capacity as their full-power colleagues. Since 2004, digital LPTV licensees have, just like full-powered licensees, had to pay the same annual fee of 5% of the gross revenue derived from such services.  But in 2007, the Commission expanded that fee obligation on the full-power side to include any authorized DTV stations, not just “licensees” (in other words, stations operating pursuant to an STA would be subject to the fee as well). The Commission now proposes to close the loop by extending that tweak to LPTVs as well. 

And finally, the NPRM notes that a petition asking that LPTV licenses be made secondary to “White Spaces” unlicensed broadband use of vacant TV channels was denied in the separate White Spaces rule making.

Comments will be due 60 days after the Notice of Proposed Rule Making appears in the Federal Register, with replies 30 days later. We will post the deadline when available. Of course, by the time the comment cycle has been completed, and a decision is reached, there will probably be less than one year left in the FCC’s theoretical three-year transition period if the proposed 2012 deadline sticks.

Evolve Or Die: Turn-of-the-Century LPTV/TV Translators Applications Must Go Digital

Amendments to specify digital operation - and maybe more - due by May 24, 2010

Charles DarwinLast week we observed that the Spring Cleaning bug had hit the Audio Division. The same was true of the Video Division as well – but with a twist or two. (This report on the Video Division’s efforts has been delayed as we tried to unravel things.) Here’s what we know for sure: the Video Division has identified approximately 750 LPTV/TV translator applications, all but a small handful with file numbers showing that they were filed back in 2000 and all proposing analog facilities. The Media Bureau has issued a public notice listing all those applications and advising that they must be amended by May 24, 2010, “to specify digital operations”. Applications which have not been so amended by that date “will not be processed”, a delicate turn of phrase which we take to mean that those unamended apps will be summarily dismissed.

The applications were originally filed in response to a “filing window” in 2000. The Commission expected that the applications would ultimately be subject to auction, so applicants were required to file only minimal technical information: FCC Form 175 (the FCC’s pre-auction form) and an abbreviated version of Form 301-CA (for Class A stations) or Form 346 (for LPTV/TV translator stations). The goal was to get just enough technical information to enable the FCC to determine which applications were mutually exclusive and, thus, would be heading to auction. No filing fees were required. 

But now the Commission is looking for much more: the amendments mandated by the latest public notice must include a complete Form 301-CA or 346 and will be considered “major changes”. They must be complete, and a $705 filing fee must be coughed up for each amendment (no fees were collected in 2000).

The twists?

The FCC’s rules specify that a “major” amendment results in assignment of a new file number. The rules also say that applications are filed on a first-come, first-served basis, with each filing taking priority over any conflicting application filed on a later date. Back in 2000, applications filed during in the window were all treated as if they were filed on the last day for prioritization purposes – so it didn’t make any difference whether you filed on the first day of the window or the last. But if each amendment is assigned a new file number on the day it is submitted, the implication is that the first applicant to amend in 2010 would prevail over any later amenders, even if the later amenders were timely back in 2000 and, thus, presumably entitled to compete in an auction. If that’s really how the Commission plans to proceed, it could set off a race to be the first to amend. 

That approach – which is not specifically laid out in the Division’s public notice – seemed a bit unusual, upsetting the expectations of those who filed in 2000 –  so we dug into the question a bit more and finally got a clarification. Yes, each application may be assigned a new file number on the day it is amended. But the file number will not necessarily be determinative of any priority because mutual exclusivity among the applications on the list will again be evaluated as of the last day of the amendment period (i.e., May 24), at least if they don’t create any new mutual exclusivities that did not exist before. In other words, all amendments filed by May 24 date will be prioritized as if they had been filed on that day. So it may be safe to wait until May 24 after all – but since the FCC has not formally announced that this is, in fact, how it will proceed, do you really want to roll those dice?

Another consideration to bear in mind is that although the public notice says that the listed applications must be amended “to specify digital operations,” it appears that that’s not the only kind of amendment that can be filed. Because the mandated amendments will be treated as seeking “major changes” – as the public notice says – just about any aspect of the application is fair game for changes: channel, transmitter site, and city of license. In effect, each amendment will be treated as an application for a new station and can include anything that could be included in a completely new application.  

And at least some such amendments must be contemplated here, because the rules have changed a boatload in the ten years or so since most of the applications were filed. For example, the Commission has stopped issuing new TV authorizations above Channel 51 – but a number of the listed applications specify operation on now-forbidden channels. They must be amended to a lower channel or be consigned to the trash heap. Ditto for folks who had filed for communities within 75 miles of large markets – a zone from which new station applications are excluded. Some applicants, apparently unaware that the same exclusion zones existed in 2000, specified operations inside the zones. The FCC never examined the technical acceptability of any of the applications. Had it done so, those within the exclusion zones would have been dismissed. If they do not amend to move out of those zones now, they will be toast.

So the story is that if you have an application on the list, you have until May 24 to amend to specify digital operation, clean up and complete the full application form, comply with all current interference requirements, and contribute a non-refundable $705 to the U.S. Treasury –  or your application will be out of luck. If you are not on the list, you can still file an application for a new station, since applications outside the 75-mile exclusion zones may be filed at any time under current rules; but any applicants for new stations must protect all applications on the list unless and until the old applications are actually dismissed. Old applicants do not have to protect their own old proposals, so they have more flexibility in what they can put in their amendments.

The Division’s effort to clear out its closets of a bunch of applications that can’t be processed in their current state is understandable. All the listed applications specify analog service, which is so Last Century. The FCC has in effect initiated a partial mandatory transition to digital operation for LPTV stations by deciding that even though existing stations still have no digital deadline, no more construction permits will ever be granted for new analog stations. Moreover, LPTV applications haven’t been real money-makers for the Commission auction-wise – in past LPTV/TV Translator auctions, applicants have demonstrated a reluctance to go beyond the minimum bid, if they showed up to bid at all. So the pending applications do not represent a potential treasure trove in unrealized auction revenue for the FCC.

Faced with these circumstances, the Commission opted to require applicants to re-engineer, amend, and pay a hefty filing fee. The result may well be that many drop out, thinning the herd and increasing the chances for settlements among those who remain in the game.

But if the Division is hoping to get rid of some, possibly most, of these applications, why not just toss them – like the Audio Division did in similar circumstances? One distinction between radio and TV: the Video Division does not face the kind of struggle the Audio Division faces between FM translators and low power FM stations, which are different classes of station with different rules with competing interests. On the video side, LPTV and TV translators are treated as essentially the same service for engineering purposes, with stations having the freedom to switch their category at will. Therefore, it is not necessary to put the brakes on one class of station to preserve spectrum opportunities for the other.

Some of the LPTV applicants have already dismissed their applications, and many are likely not to amend. When the dust settles after May 24, few enough applicants may remain to allow orderly processing, settlements, and grants in rural areas where there is a demand for more network repeaters and local programming services.