Travelers' Information Stations: To Filter (above 5 kHz) or Not to Filter, THAT is the Question

Comments have been invited on an NAB/SBE proposal aimed at (slightly) improving the audio quality on the TIS without interfering with AM stations.

Last July we blogged about changes the Commission had adopted to improve Travelers' Information Stations (TIS). At that time, the FCC proposed another fairly drastic change – the elimination of certain filtering requirements – that might potentially improve the service. The proposal went farther than some commenters thought advisable, which prompted them to propose a more moderate approach and, in response, the Public Safety and Homeland Security Bureau has now issued a Public Notice seeking further comment. (The Bureau probably could have skipped this step, but this writer thinks it’s a good thing they didn’t.)

TIS are low-power AM stations broadcasting information of interest to motorists, including traffic and road conditions, travel advisories, hazards, directions and the like. Each station covers only a small geographic area, most commonly along major highways and near tourist destinations.

AM service is notoriously interference-prone, with TIS as a potential source. The interference occurs because of the “sideband” portion of the TIS-transmitted AM signal. Excessively wide sidebands can cross over into another station’s channel, causing interference to that station. With AM stations – whose signals, particularly at night, can extend for hundreds of miles – this can cause big problems.

To reduce interference, the rules have historically required the filtering of TIS audio frequencies above 3 kHz. TIS are uniquely suited to filtering because they (theoretically) carry only voice transmissions, not music or other sounds. With the currently required filtering, music sounds awful, but voice is generally comprehensible (if not mellifluous) – roughly the same quality as wireline telephones. For TIS stations, on which non-voice transmissions are generally barred, that’s all you really need: the goal is to have listeners understand the words, not be entertained.

But at night and in areas of difficult terrain, “generally comprehensible” sometimes isn’t really. To improve the TIS, the FCC proposed eliminating the filtering requirement altogether.

That proposal got multiple positive responses, but not everyone was on board. The National Association of Broadcasters (NAB) and the Society of Broadcast Engineers (SBE), in particular, pushed back, proposing instead that the filter requirement be preserved but relaxed from 3 kHz to 5 kHz. A bump to 5 kHz would make the voice sound better, NAB/SBE argued, while still providing reasonable protection to nearby AM services.  And since TIS are deemed a secondary service, preventing interference is supposed to be paramount.

It seems like a good solution: the (objectively) poor audio quality on TIS gets better, but it doesn’t substantially increase the risk of interference. Win-win. Even the American Association of Information Radio Operators, whose petition initiated the original rulemaking to improve the TIS, supports the NAB/SBE proposal (although the AAIRO did propose a couple of additional tweaks to the NAB/SBE approach).

There is also the issue of the “steepness” of the filters. No filter is perfect: a 5 kHz filter will cull out only part of the signal below 5 kHz and leave some above it. The FCC proposed one profile, but it’s possible that another might be better, or cheaper, since steeper filters tend to be more expensive to implement. We’ll see what the comments say.

There are implementation questions on the table. Where exactly should the filters be installed in the TIS transmission system? If the filtering requirement is modified, or eliminated, would TIS licensees be required to recertify their transmitters? Since any relaxation of the 3 kHz rule would presumably be intended to benefit TIS, could a TIS licensee decline to make the change if the station were to determine, for example, that the change would be too expensive?

Since it has already solicited comments on changing the filtering, the Commission might have been able simply to issue an order straightaway adopting the NAB/SBE proposal. Instead, they have given the public another opportunity to comment on the possible new direction proposed by NAB/SBE.

Good for them. This is the way the system is supposed to work: the FCC should be sure to afford plenty of opportunity for input on what they’re considering. Here, in response to a suggestion made by commenters in a rulemaking, the Commission tentatively embraced the suggestion and solicited  comment on it, only to receive an alternate suggestion on which it has now sought further comments. It’s difficult to imagine anyone accusing the FCC of making some backroom deal with one or another established player in a way that might undermine a public safety service: the FCC has given the users and operators of the TIS a chance to weigh in on this new 5 kHz proposal, and if it turns out the 5 kHz Great Compromise isn’t so Great, ideally that determination will keep the Commission from taking an ill-advised turn. Sure, it might delay things by a few months, but in this case, doing it right is worth the delay.

Comments in response to the Bureau's public notice are due by May 16, 2014; reply comments are due by June 2. Comments may be uploaded through the FCC's ECFS online filing system here; enter them in Proceeding Number 09-19.

E911 Update: Third Further NPRM Comment Deadlines Set

Earlier this month we reported on the FCC’s Third Further Notice of Proposed Rulemaking (NPRM) in its effort to improve E911 location capabilities. The NPRM has now made it into the Federal Register, as a result of which we now know the comment deadlines. Comments in response to the NPRM may be filed by May 12, 2014 and replies by June 11.

In Depth and On Time: FCC Contemplates Indoor E911 Location Information With Added Dimensions

Commission looks to move CMRS location requirements indoors, expand them from 2-D to 4-D.

Since 2010 the FCC has been insisting on greater accuracy in the ability of wireless providers to pinpoint the location of wireless phones for E911 purposes. The automatic location information (ALI) rules currently in place require that carriers be able to provide Public Safety Answering Points (PSAPs) the location of an E911 caller to within 50 to 300 meters (depending on the technology used). But that requirement applies only to calls originating outdoors, and it mandates provision of only horizontal locations determined by geographic coordinates (i.e., latitude and longitude).

Nowadays, however, wireless phones are the source of most 911 calls, and the “great majority” of wireless calls originate indoors – hence the need for improved indoor E911 location capability.

Fortunately, test bed results and industry input confirm that indoor location technologies have improved considerably, so much so that they are expected to “deliver 50-meter location accuracy for many indoor environments with a high degree of reliability” in the near term. With its Third Further Notice of Proposed Rulemaking (NPRM) the FCC is now looking to ensure that the wireless-dependent public benefits from that capability.

But locating E911 callers inside buildings poses an additional question: how are first responders supposed to find the caller-in-distress when the geographic coordinates identified by the carrier turn out to be the site of a multi-story building?

No problem. The various fancy gadgets that can be built into smartphones include barometric sensors. According to a source cited by the FCC, as of 2013 all of Samsung’s “flagship smartphone models” had such sensors on board, as did a couple of Sony models. Apple was expected to join the club in 2014. Because (a) barometers measure air pressure and (b) air pressure varies according to elevation, such sensors can provide vertical location information (the “z-axis”) to supplement the horizontal (“x-axis” and “y-axis”) information already available.

Given all these considerations, the FCC is now proposing to require CMRS operators to hone their indoor E911 location accuracy accordingly. In particular, CMRS operators would have to:

  • Ÿprovide horizontal location (x- and y-axis) information within 50 meters of the caller for 67% of 911 calls placed from indoor environments within two years of the effective date of adoption of rules, and for 80% of indoor calls within five years.
  • provide vertical location (z-axis) information within three meters of the caller for 67% of indoor 911 calls within three years of the adoption of rules, and for 80% of calls within five years. The FCC chose the three-meter spec because the average floor-height in multi-story buildings is between 3.1-3.9 meters (depending on the type of building). Thus, the three-meter spec proposed by the Commission should permit first responders to narrow the search for the caller to a single floor.
  • meet these indoor requirements at either the county or PSAP geographic level.

And a chronological component would be added to the accuracy determination: CMRS providers would have to generate a location fix (“time to first fix”) in no more than 30 seconds in order for the 911 call to be counted towards compliance with location accuracy requirements. (Short calls of, e.g., 10 seconds or less could be excluded in measuring compliance with accuracy requirements because such call may not provide enough time to get a location fix.)

Indoor location accuracy requirements could be demonstrated through participation in an independently administered test bed program modeled on the indoor test bed administered by the Communications Security, Reliability, and Interoperability Council (CSRIC). Providers could also use alternative means providing the same level of test result reliability.

Along with the more stringent accuracy standards, the Commission is proposing to:

  • standardize the content and the process for delivery of confidence and uncertainty data that is generated by CMRS providers for each wireless 911 call and delivered to PSAPs on request.
  • require CMRS providers to inform PSAPs of the specific location technology or technologies used to generate location information for each 911 call.
  • accelerate the previously established timeframe for replacing the current handset- and network-based accuracy requirements with a unitary requirement.
  • require that CMRS providers periodically report E911 Phase II call tracking information, indicating what percentage of wireless 911 calls include Phase II location information.
  • establish a separate process by which PSAPs or state 911 administrators could raise complaints or concerns regarding the provision of E911 service.
  • require CMRS providers to conduct periodic compliance testing.

The NPRM is chock-full of related questions about which the FCC seeks public comment, including: the benefits of implementing these rules; the costs to carriers, whether a specific waiver process should be implemented for carriers seeking relief from the indoor location accuracy requirements; whether compliance within the proposed timeframes is reasonable; and whether the availability of Phase II information for roamers continues to be a concern, since the evolution of location technology may have reduced differences among carriers that could previously have complicated the location process for roamers. Because of the wide-ranging nature of the FCC’s proposals, all CMRS providers should take the time to review the NPRM carefully to assess its potential impact on their operations.

For this blogger, though, the FCC’s proposal regarding the use of z-axis data to benefit the greater good is probably the most significant use of that information since Capt. Kirk issued the command to move the Enterprise Z-minus ten thousand meters to defeat Khan.

Comments and replies will be set when the NPRM is published in the Federal Register. Check back here for updates.

Update: Cell Signal Booster Marketing Deadline Extended

About a year ago we reported on the adoption of a new set of rules governing the use of cell phone boosters. In passing, we noted that all boosters marketed in the U.S. must comply with the new standards by March 1, 2014.

Not so fast.

Turns out that it was a bit trickier than expected to develop the test procedures necessary to ensure compliance. The task force designing those test procedures included members of the TCB Council, test labs, equipment manufacturers and representatives of the wireless industry. Despite that fact – or who knows, maybe because of it – the task force’s in-depth consideration of the process “revealed significant technical and policy issues”. The upshot: the test procedures weren’t finalized and published until last month. And without final test procedures, manufacturers weren’t in a position to finalize and submit applications to get their gear certified.

Now that the test procedures – which the FCC assures us are “more robust” and “comprehensive” – are in place, manufacturers have started to run their equipment through the process. But that takes time. As a result, the Commission has agreed to extend for 60 days, to and including April 30, 2014, the deadline by which all Consumer Signal Boosters marketed, distributed or sold in the United States must comply with Section 20.21 of the Commission’s rules. In the meantime, the restrictions on sale and marketing (set out in Section 20.21(g)) are being waived until April 30 as well.

Update: Last of the New Cell Phone Booster Rules Now in Effect

When last we reported on the FCC’s comprehensive new approach to the regulation of cell phone boosters, one last piece of red tape had to be snipped before the new rules would take effect. That is, the Office of Management and Budget still had to rubberstamp a number of the new rule sections before they could take effect, thanks to the ironically-named Paperwork Reduction Act. (If you’re keeping score, the sections in question are Sections 1.1307(b)(1); 20.3; 20.21(a)(2); 20.21(a)(5); 20.21(e)(2); 20.21(e)(8)(i)(G); 20.21(e)(9)(i)(H); 20.21(f); 20.21(h); 22.9; 24.9; 27.9; 90.203(q); 90.219(b)(1)(i); 90.219(d)(5); and 90.219(e)(5).)

Good news! According to a notice in the Federal Register, OMB has given all those sections the big Thumbs Up, so they have all become effective as of September 11, 2013. (Note, however, that as the Commission made clear in its Report and Order last February, compliance with the rules will not be required of all consumer and industrial signal boosters sold and marketed in the U.S. until March 1, 2014).

Update: Effective Date, Comment Deadlines Set in Travelers' Information Station Proceeding

In late July we reported on the FCC’s adoption of new rules governing Travelers’ Information Stations. Those new rules (contained in the “Report and Order” portion of the “Report and Order and Further Notice of Proposed Rulemaking” (R&O/FNPRM)) have now been published in the Federal Register, which means that they are set to take effect on September 18, 2013. Meanwhile, in a separate item in the same issue of the Federal Register, the Commission has published the “Further Notice of Proposed Rulemaking” component of the R&O/FNPRM. According to that item, comments on in response to the FCC’s proposals are due to be filed by September 18, 2013, and reply comments by October 3.

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.

FCC Tweaks "Travelers' Information Station" Rules

Minor expansion in content, “ribbon” networks are allowed.

“Tune to 1610 AM for parking information.” “When flashing tune to 530 AM.”

We all know these signs. The FCC calls the service behind them “Travelers’ Information Stations” (TIS). These are low-power AM stations permitted to broadcast only information on traffic and road conditions, travel advisories, and other information of interest to motorists. Each covers only a small geographic area, most commonly along major highways and near tourist destinations.

The FCC has made minor changes to the rules – the first since the TIS was created in 1977.

We blogged about the proposed rules in January 2011,  but the proposals go back farther, to 2008, when Highway Information Systems, Inc., proposed sweeping changes. Later that year, the American Association of Information Radio Operators (AAIRO) filed its own, more moderate, proposal. Other groups followed with a variety of ideas that included renaming the service, changing the site and power limitations, and greatly expanding the system’s use.

The FCC, in the end, stuck to the middle of the road. (Sorry!) It clarified that permissible content for TIS includes weather alerts regarding difficult or hazardous conditions, plus information on a host of other emergency and non-emergency traffic and travel-related events and locations, along with any communications related directly to the imminent safety of life or property. Also permissible are certain non-travel related emergency information, including Amber Alerts and Silver Alerts, and information on the availability of 511 service (travel conditions by telephone).

The FCC rejected a call to allow any non-commercial content, and specifically disallowed non-emergency, non-travel information, such as routine weather information, emergency-preparedness messages, and terrorist threat levels. Reasoning that this information is widely available through other sources, the FCC concluded that broadcasting it over TIS would dilute the effectiveness of TIS in assisting travelers with geographically focused emergency information. (At the same time, however, the FCC acknowledged that some alternative sources for this kind of information, such as cell phones and mobile Internet access, should not be used while driving.) In keeping with the historical focus on serving the traveling public, the FCC turned down a requested name change to “Local Government Radio Service.”

In what should be a relief to TIS licensees, the FCC acceded to AAIRO and others who asked it, within the bounds of reason, to defer to the discretion of licensees when determining what information to broadcast. The alternative – rejected by the FCC – would have had the FCC set up strict, rule-based criteria. Licensees are equipped with better knowledge of local conditions, the FCC concurred, and are in the best position to determine what constitutes an imminent threat or emergency condition.

Perhaps the biggest change is one allowing licensees to create “ribbon” networks which broadcast the same information through multiple transmitters. This allows a licensee that operates a number of transmitters to produce some information only once. The FCC made clear, though, that all content broadcast from a given transmitter still must be relevant to travelers within the coverage area of that transmitter.  

The FCC declined to make changes to the field strength limits or the site location requirements. Although it recognized some evidence of limited interference, it decided this can be resolved by cooperation between licensees and by individual license modifications where necessary.

The FCC’s decision also includes a Further Notice of Proposed Rulemaking (FNPRM) on whether to drop the present requirement for filtering TIS audio frequencies above 3 kHz. The filtering gives TIS broadcasts a “low fidelity” quality, sounding more like a telephone than a radio broadcast. The rule is intended to limit interference, but some parties say it is ineffective and reduces intelligibility.

Check back here for comment deadlines relative to the FNPRM.

[FHH represents parties in this proceeding.]

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.

LPFM Update: Effective Date Set for Remaining Changes from 6th Report and Order

In December of last year we reported on the Commission’s “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O was published in the Federal Register the following month, but (as we reported in January) that didn’t mean that all the new rules went into effect back then.

Rather, the changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 – and the revised version of FCC Form 318 – all had to be run past the Office of Management and Budget for its approval. (Those changes all involved “information collections” requiring OMB review thanks to the Paperwork Reduction Act.)

The Commission has now announced that OMB is happy with the changes. As a result, they will all take effect on May 23, 2013. It’s unlikely that the changes will have any immediate impact, since they relate primarily to LPFM applications, and there’s currently no opportunity to file for new LPFM authorizations. However, as we all know, the Commission is hoping to be able to open a window for new LPFM applications sometime in the near future – October, 2013 is one target date, although many are doubtful that the Commission will be able to hit that target. Anyone who expects to be filing any LPFM apps in that window should be sure to make note of the effectiveness of the 6th R&O changes.

Update: Effective Date of New Cell Phone Booster Rules Announced

Last February we reported on the FCC’s adoption of a new comprehensive regulatory approach to cell phone boosters. The Report and Order setting out that approach has now made it into the Federal Register. As a result, many – but not all – of the new rules will take effect as of May 13, 2013. Which of the amended rules won’t kick in then? Why, those would be Sections 1.1307(b)(1); 20.3; 20.21(a)(2); 20.21(a)(5); 20.21(e)(2); 20.21(e)(8)(i)(G); 20.21(e)(9)(i)(H); 20.21(f); 20.21(h); 22.9; 24.9; 27.9; 90.203(q); 90.219(b)(1)(i); 90.219(d)(5); and 90.219(e)(5). Those all involve “information collections” and, thus, must first be blessed by the Office of Management and Budget thanks to the hilariously-named Paperwork Reduction Act. Check back here for further updates on that front.

Please keep in mind the crucial distinction between cell phone boosters (at issue here) and cell phone jammers. The latter remain illegal.

FM Translator Application Update: Bureau Provides More Guidance on Preclusion Showings

Bureau gently prods applicants in the proper direction with a public notice that reads like “Preclusion Showings for Dummies"

As we have previously reported, FM translator applicants whose applications are still alive and kicking are subject to a variety of filing deadlines looming in the very near future. Different deadlines apply, based on whether the application has been identified by the Media Bureau as (a) one of 713 “singleton” applications or (b) one of a separate batch of 639 applications not satisfying the “singleton” criteria.

Some, but not necessarily all, of those 1,352 applicants must file “preclusion showings” as part of their required submissions. Apparently, from the filings that have already rolled in the door, the Bureau’s staff has concluded that at least some of the affected applicants haven’t fully grasped what’s expected of them. Accordingly, the Bureau has tried, tried again, this time by issuing yet another public notice providing further “guidance” or “clarification” of the filing requirements.

The notice, which reads like “Preclusion Showings for Dummies”, is relatively short and to the point. Where preclusion showings are required, the notice thoughtfully bold faces the word “required” as an additional helpful visual cue. The concepts don’t appear to be particularly complicated (but then we didn’t think they were particularly complicated when they appeared in the Fourth Report and Order or in the previous public notices). In any event, anybody with a translator application still in the hunt should be sure to review the public notice carefully and to follow its directions thoroughly.

Hint: We gather from indications we have received from Bureau personnel that one particular bugaboo involves applications which, as originally filed, proposed facilities within 39 km of a “Spectrum Available Market Grid”. If no changes at all are being proposed to those originally-specified facilities, then no preclusion showing is required. But if the applicant proposes to amend its original proposal – by changing power, height, channel, location, antenna pattern, etc. – then a preclusion study is required. 

That’s because the staff’s initial determination that the application was in a “Spectrum Available Market Grid” (and, thus, not subject to the preclusion showing requirement) was based on the originally-proposed facilities. Any change in those facilities could alter the underlying factors that made the application’s market “Spectrum Available” in the first place. The preclusion study, based on the application’s amended proposal, will allow the Bureau staff to assess whether the market remains “Spectrum Available” or whether it has become, as a result of the amended proposal, “Spectrum Limited”. 

Some might view the most recent public notice as an annoying bit of unwelcome bureaucratic niggling, but hold on there. The Bureau is trying to get the word out to all affected applicants sooner rather than later to ensure that those applicants will have been given every possible opportunity to satisfy the Bureau’s requirements before the applicable deadlines come and go. If, as appears to be the case, the Bureau has already noted considerable shortfalls along those lines in what has been submitted thus far, the Bureau is doing everybody a favor by trying again to point applicants in the right direction.

As we observed last month, a failure to give the Bureau what it wants could result in dismissal of your application(s).  It would be a shame to have come this far in the process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

FM Translator Application Update: Bureau Announces Window for Filing of Preclusion Showings

639 surviving applicants face the next hurdle in the now decade-long contest.

In the long-running reality show “Survivor – 2003 FM Translators”, if you happen to be a player whose FM translator applications haven’t yet been kicked off the island, heads up: the Media Bureau has just announced the next challenge. This time affected applicants have been given a 19-day window (from April 1-19, 2013) within which to submit their Preclusion Showings.

Which applications are subject to the challenge? Any of the 639 still-pending FM translator application originally filed in the 2003 window (for Auction 83) which specifies a transmitter site that is (1) inside a Spectrum Limited market and/or (2) within 39 km of any Spectrum Limited Market Grid. For those of you who may be unclear about whether you’re still in the game (and, thus, facing this next chore), the Commission has provided a list of all 639 lucky applications. You can find a PDF version of the list at this link, but we suspect that you may find this MS-Excel version a bit more useful in terms of slicing and dicing the data on the list, which spans ten single-spaced pages. Here’s the Bureau’s explanatory description of the list:

Attachment A lists each Auction 83 Filing Window tech box proposal for which a Preclusion Showing amendment must be electronically submitted by the April 19 deadline. The list is sorted by the state in which the specified community of license is located. The “Market” column lists, if applicable, the Fall 2011 Arbitron Market number as set forth in Appendix A in the Fourth Report and Order. Each market designation was based on the location of the proposal’s specified transmitter site. The “In SL Buffer” column identifies with a “Yes” each proposal that specifies a transmitter site that is within 39 km of at least one Spectrum Limited Market Grid.

And what the heck is a “Preclusion Showing” anyway?

The Bureau’s announcement of the window walks you through the practical end of how and what it expects you to file. In addition, the Bureau has issued a separate summary description of the tests (i.e., the “Grid Test” and the “Top-50 Transmitter Site Test” that will have to be satisfied in the Showings. We strongly recommend that any applicant planning to file one or more Preclusion Showings review both of these notices in detail and be prepared to jump through all the hoops set out in each.

Anyone who may be a little fuzzy on what this whole FM translator application situation is all about may want to revisit our extended collection of posts on the subject, which may be found here. (Just keep scrolling down - there are a lot of posts covering several years' worth of developments.)  At this stage of the game, though, if you’re wondering what a “Grid Test” is or whether you’re in a “Spectrum Limited Market”, you’ve got a lot of catching up to do.

For those of you who are still in the game and playing to win, remember: the window for Preclusion Showings opens on April 1 and slams shut on April 19. Good luck.

Update: Deadline Set for Oppositions to Petitions for Reconsideration of Latest LPFM Decision

Last December the Commission released its Fifth Order on Reconsideration and Sixth Report and Order in the long-running LPFM proceeding. Five parties weren’t 100% happy with the results so – surprise, surprise! – they have filed for reconsideration of various aspects of the FCC’s decision. The petitioners (with links to their respective petitions) are:

Prometheus Radio Project

Michael Couzens and Alan Korn

REC Networks

LET THE CITIES IN!!

LifeTalk Radio, Inc.

According to a notice in the Federal Register, if you want to oppose any (or all) of these petitions, you have until March 21, 2013Replies to any oppositions will be due by April 1.

While the opening of a new pleading cycle – with the consequent opportunity for a pleading war – is often a harbinger of delay, our guess is that that’s not the most likely scenario here. As we have reported, the Media Bureau is doing its darnedest to tee the next LPFM application window up as quickly as possible (maybe even by next October, if the Chairman gets his wish). It’s unlikely that a handful of recons will distract the Bureau from that mission, but you never know. In the meantime, look for continued progress in the Bureau’s efforts to clear the FM translator application dead wood, a necessary antecedent to the LPFM window.

Update: FCC Releases "Consumer Guide" on Cell Phone Signal Boosters

The FCC tells you what you need to know, for now . . .

Did you read our earlier post on new requirements for cell phone signal boosters? If not, you’re probably a member of Commissioner Pai’s signal-booster-ignoramus-club. (Check out his separate statement in which he opined that, “[i]ndeed, I very much doubt that most individuals will learn about these requirements [relative to cell phone boosters] in the foreseeable future.”) Presumably with you in mind, the FCC has now released a Consumer Guide on what you need to know if you currently own a signal booster.

To aid in the effort to educate the American public, we are passing this information on to you, our valued readership. So if you own a signal booster or are thinking of getting one, take a look at the Guide.

Signal booster manufacturers and cell phone service providers (including resellers) should also take a look at our original post because the new requirements will affect you as well.

FM Translator Application Update: Singleton List Released, Long-form Deadline Set

The FM translator application juggernaut rolls on. 

Having processed the Selections Lists and Caps Showings filed in January and having, as a result, tossed several thousand applications earlier this month, the Media Bureau has sifted through the remaining rubble and identified 713 singleton applications that may be grantable in relatively short order. The lucky 713 applications: (a) are apparently not mutually exclusive with any other applications filed back in the 2003 filing window and (b) don’t run afoul of the technical limitations imposed in last year’s Fourth Report and Order. (Helpful reminder: To satisfy those limitations, an application must be: (1) outside all Spectrum Limited markets and (2) not within 39 km of any Spectrum Limited market grid.)

Heads up, though. If you’re on the singleton list, you’ve only got until March 28, 2013 to prepare and file your long-form application (Form 349), along with any required filing fee and Form 159, in order to stay in the game.

The public notice announcing the singleton list also includes some guidelines relative to what you can and can’t do in the long-form application. Attention should be paid to those details, because a failure to comply could result in dismissal. It would be a shame to have come this far in the application process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

In particular, the long-form application may specify facilities (including, e.g., transmitter site, power, height, directional pattern, channel) different from those specified in the original 2003 “tech box” showing as long as they constitute “minor” changes. If the proposed changes would result in a site (a) within the 39 km buffer of any defined Market Grid and/or (b) at an out-of-grid location within a Top-50 Spectrum Limited Market, the applicant will also have to file a preclusion showing relative to the amended proposal. (If the facilities specified in the long-form Form 349 application are identical to those specified in the “tech box” filed back in 2003, no preclusion study is necessary.) 

Along with the public notice announcing the singleton list, the Bureau has also released a separate set of guidelines describing in considerable detail the required preclusion showing. Again, attention should be paid to the details, since the Bureau has made clear that preclusion studies must be complete and sufficient and, most importantly, they may not be “amended, corrected, completed or resubmitted” after March 28.

Once the March 28 deadline has come and gone, the Bureau will review the amendments, dismiss any applications that fail to satisfy the terms set out in the public notice, and the rest will be put out on a public notice which will trigger a 15-day petition to deny period. Of course, any of the 713 applicants who fail to file a Form 349 by the deadline will also be dismissed.

FCC Gives Cell Phones a Boost

New devices should help to eliminate “dead spots” with little risk of interference.

Despite the promise of ubiquitous cell phone coverage, we are all too familiar with the dreaded phenomenon of dead spots. Historically, cell users frustrated by that phenomenon often fought back by using signal boosters that receive and re-transmit cell phone signals to improve coverage. Recognizing the obvious desirability of boosters, but concerned about their potential for interference, the FCC has now adopted a new comprehensive regulatory approach to boosters. As a result, we can look for a new breed of consumer signal boosters hitting the market soon, probably by year’s end.

This should come as good news for consumers . . . unless you rely upon poor signal coverage as an excuse to avoid calls from your mother (shame!), have an aversion to compulsive cell-phone talkers (like some of us here), or have already purchased an existing device that’s not compliant with the FCC’s rules (in which case you may need to upgrade).

Previously, the FCC did not specifically prohibit boosters, but its rules were a bit fuzzy. For years various groups expressed concern that “unauthorized” boosters were causing harmful interference to wireless networks. To address those concerns, the FCC initiated a formal rulemaking to look into the issue in 2011. The result: two new categories of boosters, subject to different requirements.

“Consumer Signal Boosters” are “out-of-the-box” devices for personal use by individuals to improve cell coverage in a limited area, like a house, a car, an RV, a boat, etc.  “Industrial Signal Boosters” are all others.  Deployed by wireless providers, they serve larger areas, like campuses, hospitals, tunnels, airports, office buildings, etc. Since such industrial boosters aren’t significantly affected by FCC’s latest action, we’ll focus here on the new category of Consumer Signal Boosters. (Also unaffected by the new rules are “femtocells,” which connect to the network though broadband Internet access rather than licensed cell frequencies.)

Ready to get boosted?

Sorry, but you’ll need to wait a little longer for booster manufacturers to bring their products into compliance with a new “Network Protection Standard” designed to ensure that all new devices have appropriate safeguards.  Under that Standard, all Consumer Signal Boosters must:

  1. comply with existing technical parameters for the applicable spectrum band of operation;
  2. automatically self-monitor certain operations and shut down if not in compliance;
  3. automatically detect and mitigate oscillations (caused when the device picks up its own signal too strongly, like the feedback in a public address system);
  4. power down or shut down automatically when a device is not needed, as when the device approaches the base station with which it is communicating;
  5. be designed so that these features cannot be easily defeated; and
  6. incorporate interference avoidance in systems that use unlicensed frequencies internally.

The FCC does not want buttons, knobs or switches which allow for these features to be deactivated.  (Understandable, as we ourselves can’t resist pressing buttons on electronic devices just to see what they will do.)

The new rules prescribe two alternative sets of technical specifications that comply with the Network Protection Standard.  But equipment manufacturers are not obliged to adhere to either, if they can demonstrate compliance some other way.

The FCC does not anticipate compliant Consumer Signal Boosters becoming available until late 2013. By March 1, 2014, all boosters marketed in the U.S. must comply with the new standards.

As for consumers, the “out-of-the-box” ease of use will be complicated by some additional paperwork requirements.

Once you get your hands on a compliant Consumer Signal Booster, you will have to give your cell phone provider certain registration information and get the provider’s permission before putting the booster to use. In practice, getting the provider’s permission should be a non-issue for most: all of the major providers (Verizon Wireless, AT&T, Sprint, and T-Mobile), plus many smaller providers, have agreed to grant blanket approval for Consumer Signal Boosters that meet the Network Protection Standard.  You would need to request express permission only from smaller providers that have not yet signed on.

The registration information you’ll have to provide will include, as a minimum, the booster’s: (a) owner (and, if different, its operator); (b) make; (c) model; (d) serial number; (e) location; and (f) date of initial operation. The aim is to help authorities track down devices that cause interference problems. Providers will have to set up a free registration process. Also, providers will have to announce (at least annually for the first two years) whether or not they have consented to the use of each FCC-certified model.

But let’s suppose you’re one of those early adopters who hopped onto the booster bandwagon before now. How do the new rules affect your pre-Network Protection Standard booster?

Good news: the FCC does not prohibit consumers from continuing to use such legacy devices, even if those don’t comply with the Network Protection Standard. BUT a consumer will need express permission from the wireless provider to use these “legacy” devices. The provider is not obligated to give consent (especially if the old school booster is likely to cause harmful interference) and the consent can be withdrawn at any time.

Consumer note: Non-compliant boosters cannot be marketed in the U.S. after March 1, 2014.

Continued operation of any Consumer Signal Booster, whether legacy or new, is contingent on the device not causing harmful interference. If a service provider or the FCC tells you to turn off your device because of interference issues, you must do so, or face potential penalties.

With respect to penalties, in a separate statement Commission Pai acknowledged that consumers using legacy boosters might violate the new requirements simply out of ignorance:

[W]e cannot expect that every American who currently uses a booster will know that he must register that booster and obtain his carrier’s consent. Indeed, I very much doubt that most individuals will learn about these requirements in the foreseeable future. For some reason unbeknownst to me, most Americans just don’t watch FCC open meetings or read FCC orders.

[Blogmeister’s note to Commissioner Pai: Many Americans may not watch your meetings or read your orders because we here at CommLawBlog take care of some of that heavy lifting for them.

At Pai’s suggestion, the Commission has directed the Enforcement Bureau to give consumers who are violating the rule (whether by using unregistered devices or by failing to obtain consent from their providers) the chance to avoid a fine by shutting the device off. That’s a one-shot-only chance, though: a consumer who has previously been warned by the Bureau and who continues in violation can expect a fine.  

Looking for more information? The FCC has set up a handy signal booster website that provides some background and links to related materials.

More FM Translator Applications Down the Tubes

Media Bureau gives Dave Doherty a break, provides itemized list of latest victims

In what may be the last peristaltic spasm of the FM translator review process, the Media Bureau has announced that it has dismissed “several dozen” (by our count it’s a total of 40) remaining FM translator applications that were filed back in 2003. According to its public notice, the Bureau “has now completed” its review of the Selection Lists and Cap Showings filed last month by translator applicants and “has identified those applications which do not satisfy filing requirements”. So if your application (a) wasn’t already tossed out in last week’s mass dismissal and (b) isn’t listed in this most recent batch, then presumably you’ve survived the cut and your application can now be processed. 

No official word yet on when the next processing steps are likely to happen, but we’re guessing they’ll be happening sooner rather than later – possibly in a matter of a few weeks. As we have previously reported, the Commission has made clear its hope that the next LPFM window can be opened promptly (as early as next October, if the Chairman has his way), and the Bureau has thus far been doing its darnedest to turn that hope into reality.

One additional note: Unlike last week – when the Bureau tossed more than 3,000 applications without issuing any itemized public notice specifically identifying those applications – this time around it has provided a listing of the 40 latest victims in PDF and Excel formats, convenient for easy slicing and dicing. That should take our friend Dave Doherty off the hook this time around.

Lists of Surviving FM Translator Applications Now Available

Apparently undaunted by the approaching blizzard, Dave Doherty at Skywaves Consulting up in Millbury, Massachusetts, has been hard at work culling potentially useful information from CDBS about the FM translator application situation. Now, in addition to the lists of dismissed applications he passed along to us a few days ago, he has provided a couple of lists reflecting all the vintage 2003 FM translator applications that survived the first round of dismissals. Here you go: a list of surviving applications arranged alphabetically by applicant, and a list of the same applications arranged by state and city. This, ideally, will help address the concerns expressed by a commenter to an earlier post,

Dave cautions that the Media Bureau has indicated that more applications may be headed for the Dismissalville in the near term – thanks, apparently, to the fact that some applicants’ tech showings were either messed up or MIA, thus requiring additional staff analysis. The smart money figures that such additional analysis will identify more applications destined for the dumpster. Presumably the Bureau will let us all know if and when that happens, but you never know.

And while caution is being dispensed, we’ll add here that we have not test-driven Dave’s latest set of lists, so you rely on them at your own risk. But, as we noted the last time around, the lists provide a more useful approach than the Bureau’s public notice. Thanks again, Dave – and don’t hurt yourself shoveling snow!

FM Translator Dismissal Aftermath - The Private Sector to the Rescue!

Searchable lists of the 3,000+ dismissed applications now available

Let’s have a big CommLawBlog cheer for the private sector! As we reported yesterday, the Media Bureau unceremoniously dumped about 3,000 FM translator applications into the trash. In doing so, the Bureau chose not to issue the type of public notice that usually accompanies such actions. Instead, the staff issued a public notice announcing, in general terms, that it had tossed the apps, and advising that anyone who wanted to know which applications had been tossed could knock themselves out performing wildcard searches in CDBS. As we observed, this approach was not especially helpful to folks in the private sector who might have an interest in figuring out which applications were gone and which are still alive and kicking.

Fortunately, Dave Doherty from Skywaves Consulting LLC in Millbury, Massachusetts has come to the rescue. Dave has prepared two lists of all the dismissed applications. One list is organized alphabetically by applicant, the other alphabetically by state. They both contain the same data – Facility ID Number, Channel, Frequency, State, City, Applicant Name and File Number.  Both lists are searchable. We haven't doublechecked Dave's handiwork, so if you're inclined to rely on it, you do so at your own risk.  But at least it attempts to provide a more useful approach to the dismissed translators than the FCC did.  We asked Dave if we could post links to his two lists for our readers, and he graciously agreed. Thanks, Dave! (Dave’s contact information is available on his lists, if you want to thank him personally.)

Bureau Disposes of FM Translator Applications

As drive toward an LPFM auction moves forward, applications get tossed for real while Selection Lists/Caps Showings get released, sort of.

That loud flushing noise you may just have heard was the sound of about 3,000 FM translator applications heading down the tubes. Having analyzed the various Selection Lists and Caps Showings submitted by translator applicants late last month, the Media Bureau has announced that it has now tossed “approximately 3,000” vintage 2003 translator applications. In the same public notice, the Bureau has also announced the “release” – and we use that term loosely – of all of the underlying Selection Lists and Caps Showings submitted during the recently closed Selection Filing Window.

Which applications got thrown out and which didn’t? Good question. The Bureau’s one and only (apparently) public notice on the subject doesn’t include a list of the dismissed applicants, or applications, or file numbers, or any of the other conventional data you might expect. If you want to know any specifics, the staff apparently expects you to head online to CDBS, where you can probably figure out precisely which applications got dismissed and which continue to live on if you’ve got boatloads of (a) time and (b) motivation and (c) luck.

According to the public notice, each of the translator applications dismissed today “will include the following CDBS Public Notice comment: ‘Dismissed February 5, 2013 per DA 13-XX.’” A quick random spot check of FM translator applications dismissed today did not turn up any such comment, but the staff may still be working on that. By performing a “wildcard” search we were able to generate a list of 3,033 translator applications that were (a) filed in March, 2003 and (b) dismissed as of today. However, that list identified the applications only by file number – no reference to applicant or community of license or channel – so it’s not clear how useful that list would be to anybody.

[For the record, here’s how we performed our search: 

(1) Go to CDBS and click on “Search for Application Information”;

(2) For the following fields, enter the information indicated (see illustration):

            File Number:                   BNPFT            200303%

            Application Status:      Dismissed

            Status Date:                    02/05/2013      02/05/2013

(3) Click on “Submit Application Search” button.]

Of course, if you happen to have an idea of what you’re looking for – maybe you’re interested in a particular applicant, or a particular community, channel, state, etc. – you’re in better shape, because you can narrow down the wildcard search accordingly.  But we suspect that even such a narrowed-down quest will yield results that will require considerable patience to sift through.

If you want to see the Selection Lists and Caps Showings the Bureau has now “released”, that, too, will require considerable effort. Each applicant’s Lists/Showings submission has apparently been uploaded to CDBS, but only to the applicant’s last-filed “BNPFT” application listing. To find a particular applicant’s submission, the staff (in a footnote to the public notice) instructs you to: (a) perform a wildcard search for all FM translator applications filed by that applicant in March, 2003; (b) once that search produces a list of applications, click on the “Info” link relative to the first application at the top of the list; (c) when the Info page comes up, click on the “View Correspondence Folder” link; and then (d) click on the link labeled “Click to View Imported Letter” bearing the date February 5, 2013.   Repeat as necessary.

On the one hand, the Media Bureau is to be applauded for digging through the Selection Lists/Caps Showings submitted just last month and weeding out thousands of ten-year-old applications that were clogging up the system. The Bureau is, of course, under the gun to tee up an LPFM auction – as early as next October, if the Chairman has his way – so there was pressure to get this job done sooner rather than later, but it’s still impressive that the staff managed to handle it as quickly as it did.

On the other hand, the apparent desirability of quick action may not completely excuse the less than helpful manner in which the staff’s action has been packaged and presented to the rest of us. For example, applicants who remain hopeful that their applications may yet be granted have no easy way of determining which, if any, other applications may still be standing in their way. It’s also difficult to confirm that the list of dismissals conforms to the various Selection Lists/Caps Showings submitted by the affected applicants. Is it possible that some applications that should have been on the chopping block were inadvertently spared, or vice versa? Good luck figuring that out. Sure, we’re only talking about FM translators here, and sure, these applications have been sitting around for ten years already, for crying out loud. But does that justify imposing unusual burdens on any translator applicants still theoretically in the fight?

In the end, we suspect that the Bureau’s approach, inelegant though it may be, is not an inappropriate way to signal the start of the shut-down process for Auction 83, an auction that never really got off the ground in the first place. To be sure, some surviving applications will somehow remain to be processed and, eventually, granted. But it has long been evident that, in order even to begin to wrap things up here, drastic action would have to be taken. The Bureau’s public notice reflects such action.

Update: Effective Date Set for New LPFM/FM Translator Rules

As we reported last month, in December the Commission released its “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O has now been published in the Federal Register, which means that most (but not all) of the new rules are set to become effective on February 8, 2013.

The changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 will not take effect on that date, though. All those sections involve what we call “information collections”. As a result, they are subject our old friend, the Paperwork Reduction Act, which means that they will have to run past the Office of Management and Budget first before they can be implemented.

Note that the establishment of effective dates for the new rules should not affect the fast-approaching deadline by which FM translator applicants must file their “Selection Lists” and “Caps Showings”. As we have previously reported, the window for filing those lists and showings opens on January 10 and closes on January 25.

FM Translator Application "Selection Lists"/"Caps Showings" Requirements Clarified

With January 25 deadline fast approaching, the Media Bureau has provided some (non-binding) guidance to FM translator applicants.

If you’re one of the folks with a bunch of FM translator applications still pending from the 2003 filing window, you’re probably hard at work trying to figure out what, if anything, you should be filing in response to the Commission’s public notice announcing the deadline for “Selection Lists” and related “Caps Showings”.  (You might have missed that notice, since it was released the afternoon of December 21 – that is, the Friday of the long Christmas weekend.)

As we pointed out, in the wake of that notice a considerable amount of work must be done, and there’s not a lot of time to do it in. The window for filing Selection Lists and Caps Showings opens in two days (on January 10), and closes on January 25

But the Media Bureau feels your pain, and in an effort to assist translator applicants, the Bureau has released a set of 12 clarifying examples (actually, it’s 17, if you count the five sub-examples tacked onto Example 12). They provide reasonably specific directions for what is and is not expected of applicants in a variety of possible scenarios. (They’re especially helpful if you happen to have five applications pending in the Atlanta area, three of which are Inside the Atlanta Market.) So translator applicants currently struggling with making selections and assembling showings would be well-advised to take a few minutes (and a couple of deep breaths) and check out the Bureau’s examples. That may save some time and aggravation.

But heads up. While the examples are “intended to provide general guidance reflecting the staff’s initial interpretation of the application selections and cap showings procedures”, they may not be the last word.   The Bureau’s notice specifically disclaims that the examples “are not intended to establish binding precedent”. Further, “[t]he staff will make specific rulings in response to actual selections and submissions on a case-by-case basis.” In other words, applicants should feel free to rely on the examples, but such reliance will not necessarily safeguard an applicant’s selections or showings from adverse determinations by the staff down the line.

Good luck.

FM Translator Application Dismissal Lists - A Clarification

“Selection Lists” may be filed by email.

Last month we reported on the Media Bureau’s announcement of the deadline and procedures for filing lists of FM translator applications to be dismissed pursuant to the provisions of the “Fifth Order on Reconsideration and Sixth Report and Order” (which we’ve previously referred to as the 6th R&O). In our post, we said that “[a]ll showings will be submitted on paper – there will be no electronic filing.”

Oops. As a helpful member of the Audio Division has pointed out to us, the Bureau’s public notice DOES provide for submission of the Selection Lists (and related “Caps Showings”) by email, which is technically “electronic filing” (even if it doesn’t involve CDBS). 

The address to use: FXshowings@fcc.gov. While that address may or may not be operational as of today (January 3, 2013), we have been advised that it’ll for sure be up and running by January 10, the day the window for filing Selection Lists and Cap Showings opens.

But heads up. The FCC’s email system will not accept attachments larger than 10 MB. The Bureau’s notice instructs that “files beyond that size [i.e., 10 MB] should [be] divided into multiple sub-10 MB documents and sent via separate e-mails.”

Our apologies for any confusion that we may have caused.  And many thanks to our sharp-eyed reader who brought this to our attention.

Update: Deadline for FM Translator Dismissal Lists Announced

Public notice spells out showings that must accompany applicants’ choices of which 2003-era FM translator applications will stay and which will go

If you’re one of the lucky folks who happens to have translator applications still pending at the Commission from the famous 2003 filing window, heads up – depending on how many applications you have and what markets they propose to serve, you could have a lot of homework to do between now and January 25. That’s because the Media Bureau has announced that the window period for submitting “translator application selection” lists (“Selection Lists”) and related “Caps Showings” will run from January 10-25, 2013

So much for taking any time off during the Christmas/New Year’s/MLK extended holiday season.

The Bureau’s public notice is not unanticipated. As we noted just ten days ago, the Commission is highly motivated to wrap up the long-running face-off between FM translator applicants and would-be LPFM applicants. The culling of the herd of translator applications that have been sitting around for nearly ten years is an essential step in achieving that goal.

As those of you who have been following the LPFM/FM translator imbroglio through our blog already know, the Commission has devised a highly complex set of technical guidelines to govern which translator applications will be processed and which will be dismissed. The applicants themselves will have the first say, but their ability to pick and choose among their pending applications is subject to the Commission’s complex guidelines.

In announcing the deadline for submitting the Selection Lists, the Bureau has provided a useful summary of the technical factors that will come into play as applicants prepare their lists. We won’t try to summarize those factors here – the Bureau has already done an admirable job on that front, so we’ll simply provide another link to the Bureau’s public notice.

We will, however, note that the January 25, 2013 deadline appears to be absolute. In bold face text the Bureau warns that “Selection Lists and Caps Showings may not be submitted, amended, corrected or resubmitted for further consideration after the Caps Deadline.” So if you’re going to be among those filing lists and showings during the upcoming window, be sure to double- and triple-check your work before turning it in.

And just who will be having to submit Selection Lists and Cap Showings? According to the notice, “[n]o submission is required for this filing window by any Auction 83 [FM translator] applicant that has fewer than 51 pending Applications nationally and no more than one pending Application in any of the Appendix A Markets.” The term “Appendix A Markets” refers to a list of markets set out in Appendix A to the Commission’s Fourth Report and Order. (We described that Report and Order last April.) So you’re off the hook if you have no more than 50 pending translator applications and no more than one application in any Appendix A Market.

The rest of you should get busy.

You’re going to have to decide which applications you want to continue to prosecute and which you’re willing to toss. No applicant will be permitted to keep more than 70 applications on file, so some of you will have to do some whacking just to get in under that limit. 

And once you’ve made that cut, the fun will have just started. 

Applicants that plan to prosecute 51-70 applications nationally will have to demonstrate, with respect to any of its applications outside any Appendix A Market, compliance with a number of “national caps conditions”. That demonstration will include a “No Overlap Showing” and a showing that “at least one [LPFM] licensing opportunity will remain at the proposed site if the Application is granted.” In the “No Overlap Showing” the applicant will have to show that the proposed 60 dBu contour of the particular translator application won’t overlap with the equivalent contour of any other translator application or authorization held by the applicant as of December 4, 2012. (All contours will be determined by the standard prediction method.)

The Bureau’s notice also points out that the grant of any application with a transmitter site outside of an Appendix A Market will be subject to a condition that, for the first four years of operation, the translator’s 60 dBu contour must overlap the 60 dBu contour as originally granted. In other words, for the first four years a non-Appendix A Market translator won’t be able to be relocated so far away that its modified 60 dBu contour does not overlap the originally granted 60 dBu contour. (Again, all contours will be determined by the standard prediction method.)

For Appendix A Market applications, there may be even more to be done. Applicants wishing to prosecute more than one translator application in a given Appendix A Market will be subject to a number of restrictions. First, an applicant may prosecute no more than three applications in any Appendix A Market. For each such application, a “No Overlap Showing” will have to be submitted. And in addition, for each of those applications the applicant will have to demonstrate that certain LPFM licensing opportunities will not be precluded.

And all of this has to be wrapped up and delivered to the FCC by 7:00 p.m. (ET) on January 25, 2013. All showings will be submitted on paper – there will be no electronic filing.

As noted, once an applicant has filed its Selection List and accompanying Caps Showings, there’s no changing them at all. The Bureau will then sift through them and clear its files accordingly. If an applicant that should file a Selection List and Caps Showing fails to, or if it files a “deficient” showing, the Commission will follow a particular drill for deciding which applications will stay and which will go.

Finally, a note of caution to everybody who has a vintage 2003 translator application still pending. You all are still subject to the anti-collusion rules. That means that you cannot, at any point in the caps selection process, communicate with other applicants with respect to various application-related matters. (The particular areas to avoid are spelled out in Section 1.2105(c) of the rules.)

Effective Date of New LPFM Rules Set

Updated “water files” also released as FCC works to advance LPFM/FM translator plan

Having settled on a framework for clearing the FM translator logjam and getting the LPFM application process up and running (at least in theory), the Commission is losing no time in its efforts to implement that framework. The “Fifth Order on Reconsideration and Sixth Report and Order” in the ongoing LPFM/FM translator saga has now been published in the Federal Register. (We wrote about that order last week.) Barring a stay of the effectiveness of the order – and such a stay is unlikely in the extreme – the new rules will become effective on January 10, 2013. (That will also be the deadline for petitions for reconsideration, should anybody be inclined to seek reconsideration.  Parties interested in seeking judicial review will have until February 9 to get their petitions for review filed with an appropriate court.)

The Federal Register publication (and consequent effective date) probably won’t have any immediate impact on things, though. What will have an immediate impact will be the FCC’s public notice concerning the deadline by which applicants with more than the permitted number of translator applications must elect which of their applications they plan to dismiss. That public notice could show up any time now. Since (1) the Commission appears keen on getting the LPFM show on the road, and (2) the LPFM window process won’t be able to proceed until the translator backlog is cleared, and (3) the translator backlog won’t be cleared until dismissal elections have been made, and (4) dismissal elections won’t be made until the FCC sets a deadline for them, our guess is that that deadline is likely to be announced sooner rather than later. Check back here for updates.

And also on the LPFM front, the Commission has released some updated “water files” for certain markets. These files clarify or correct certain “minor discrepancies” with respect to the possible exclusion of grid points at locations over water or not within the United States. (For more on the significance of “grid points” and related matters, see our post from last April.) The communities affected by the updated water files: Chicago; Detroit; Los Angeles; and Jacksonville (the one in Florida). The code, updated water files and other relevant materials may be accessed in a zip file at http://www.fcc.gov/Bureaus/MB/Databases/source_code/lpfm/lpfm6.20121206.zip.

Translate This (Again)! Final Framework for LPFM/FM Translator Resolution Adopted

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

Clearing the translator backlog

First things first. Before the Commission can open an LPFM window, the remaining 6,000 or so translator applications filed back in 2003 have got to be cleared out. To hasten that, the FCC has revised the cap limits (i.e., the number of translator applications any single applicant can continue to prosecute) and settled on a process to deal with those applications that survive the cap-limit culling.

Application caps – Originally, the Commission had settled on a 50-application cap. But now that has been relaxed somewhat, in some limited circumstances. In the 6th R&O, the Commission has revised the cap upward to 70 applications nationally, with a limit of 50 in the largest U.S. markets. 

Additionally, translator applicants are now faced with a cap of three applications in the 156 largest markets – as opposed to the one-per-market cap announced last March. However, the relaxed per-market cap is subject to a number of considerations. For example, submarkets in the largest cities will be considered separate markets for purposes of applying the three-application local limit. No 60 dBu overlap will be permitted with another commonly-owned application. (And with respect to demonstrations of no-overlap, the Commission will not accept alternate contour prediction – e.g., Longley-Rice – showings.) Additionally, applicants will need to submit studies showing that their proposed translators will not preclude LPFMs in either the market “grid” or at the translator’s proposed site.

Thinning the herd – With those new caps (and related limitations) in place, here’s how the Commission plans to deal with the translator backlog.

The first step will be a public notice requiring compliance with the new national and local caps. As early as January 2013, applicants will be told to elect their top-70 (and top-50 in major markets) applications by a date certain. Applicants with more than three applications in the larger markets will be ordered to make similar elections. Thousands of FM translator applications should be eliminated from the database, thereby – the theory goes – making room for LPFM stations.

Next, or simultaneously, the FCC will begin processing “singleton” translator applications in non-“spectrum limited” markets (those where opportunities theoretically remain for new LPFM stations. Check out our post from last April for more details on “spectrum limited” markets.). Applicants in this category will be invited to file “long form” applications to supplement the abbreviated Forms 349 they filed in the 2003 translator window. 

At the same time, applicants in “spectrum limited” markets will be afforded an opportunity to file long-form applications which include, where possible, showings that the grant of their applications will not preclude opportunities for future LPFM stations. 

The FCC will then open a settlement window allowing technical settlements or limited buy-outs (for expenses only) among mutually-exclusive applicants for non-“spectrum limited” markets.

Singleton applicants in “spectrum limited” markets which can demonstrate no preclusion of LPFM opportunities will then be processed and granted. A settlement window will then be opened to allow the sorting out of non-preclusive applicants in “spectrum limited” markets.

Any remaining singletons will then be processed and granted. 

After these steps are completed, some groups of mutually-exclusive translator applications are still likely to remain. The FCC will conduct an auction among remaining applicants for commercial translator licenses; remaining non-commercial (NCE) translator applications will be chosen under the Commission’s noncommercial comparative points system. In hybrid groups of NCE and commercial MX applications, it’s likely the NCE applicants will be afforded an opportunity to amend to specify commercial operations, thereby avoiding dismissal.

Timing – As noted, we can expect to see, probably within a matter of weeks, the public notice requiring translator applicants to elect which of their applications they will continue to prosecute. Since all translator applicants have long been on notice that they would be having to make some such election (even if the precise application has been somewhat up in the air until now), don’t be surprised if the Commission provides only very limited time within which to make those elections.

But the follow-up processes of settlements, singleton processing, resolution of MX groups, etc. could take considerably longer. 

How long? According to the Commission, “to maximize LPFM filing opportunities it is critical for the Media Bureau to complete substantially all of its processing of the pending FM translator applications prior to the opening of the LPFM window.” So you might figure that no LPFM window will be opened until the translator backlog has been cleared. Perhaps, but as noted above, the Commission has tentatively set October 15, 2013 as the target date for the next LPFM window. That suggests that the Commission thinks it can wrap up the translator backlog in the next nine months. We wish them luck with that. (Perhaps recognizing the potential for delay along the way, in the 6th R&O the Commission authorizes the Media Bureau to “adjust” the October, 2013 date “in the event that future developments affect window timing”.)

The next LPFM window

When the LPFM window does open, LPFM applicants will be subject to a number of new rules and policies. They include:

  • New second-adjacent channel short-spacing waiver criteria for LPFM applicants vis-à-vis FM, FM translator and LPFM stations. The new criteria will permit use of the undesired/desired signal strength ratio methodology to evaluate potential interference. (Up to now, such methodology has been available only to translator applicants.). The criteria will also permit the use of directional antennas, alternate antenna polarization and lower ERP in waiver requests.
  • Interference complaint procedures for third-adjacent channel LPFMs vis-à-vis FM, FM translator, or FM booster stations. (Third-adjacent channel spacing requirements for LPFM applications were repealed by Congress in 2010, but actual interference is still a cognizable issue under the rules.)
  • Modified selection criteria for mutually-exclusive LPFM applicants. The new criteria will make available additional comparative “points” to those proposing to establish local studios and for applications by Native Americans to serve their tribal lands.
  • Expanded ownership limits which will permit, subject to certain restrictions, ownership of up to two FM translators by an LPFM station.
  • Elimination of the plan adopted in 2000 to license LP10 (10 Watt) LPFM stations.
  • Elimination of IF protection requirements applicable to LPFM.

What you see is what you get. 

So the FCC has finally resolved a proceeding that had its origins in the 2003 FM translator window. As to LPFM/full-power interference issues and the imposition of FM translator application caps, the FCC (with significant input from Congress) has spoken. Some mass filers will lose the bulk of their remaining translator applications, as will applicants who concentrated in just a few markets, but the adjustments to the caps may help some. LPFMs will have new spectrum rights vis-à-vis full-power FM and other FM services, new opportunities to own translators, and new limitations on the facilities they can hold. It’s safe to say that nobody is likely to be 100% happy with 100% of the Commission’s resolution of the LPFM/FM translator conundrum. But a decade of uncertainty is over, unless either the FCC re-thinks things or a court of appeals (at the request of one or another disgruntled party) finds some flaw in the Commission’s actions – neither of which possibilities is likely, in this writer’s view. If all goes as planned, the FCC’s new rules will become effective 30 days after their publication in the Federal Register (except for some aspects that will require prior OMB approval). Check back with us for updates on that situation.

Reg Fee Calculation Method Under the Microscope

NPRM seeks input on overarching goals and nitty-gritty methodology of reg fee process.

We all know that regulatory fees are imposed annually. The precise fees to be paid each year are proposed in the spring and then, after a notice-and-comment period, finally announced in summer, usually to be paid in September. It happens with mundane regularity. 

But did you ever wonder how the Commission comes up with the actual numbers?

In a Notice of Proposed Rulemaking (NPRM), the FCC has pulled back the curtain on that process, inviting us all into the sausage factory so that we can take a look around and maybe provide our own input into possible changes in the system. The deadline for comments is September 17, 2012; reply comments are due by October 16. If you think you might want to toss in your two cents’ worth, you should probably get started now – the NPRM is pretty dense and requires considerable patience (and some NoDoz®) to wade through.

To get you oriented, here’s a thumbnail sketch of what’s going on. (Caution: this is only a thumbnail sketch. If you want to get fully immersed in the NPRM, you’re on your own.)

The FCC is required by Congress to collect reg fees annually to “recover the costs of . . . enforcement activities, policy and rulemaking activities, user information services, and international activities.”  (It’s in Section 159 of the Communications Act – you can look it up.) That means that the total amount of fees collected should amount to the total amount of funds appropriated for the FCC’s activities by Congress. Essentially, Congress is looking to have the FCC pay for itself through reg fee collections.

The Act requires that fees be allocated among the FCC’s regulatees based on the “full-time equivalent number of employees” (FTEs) in “the Private Radio Bureau, the Mass Media Bureau the Common Carrier Bureau and other offices of the Commission”. We put that quaint listing in quotes because that’s just what the Act said when it was first adopted nearly two decades ago, and that’s what it still says. In the meantime, of course, the names of the Bureaus have changed, and a number of their responsibilities have been shifted to the International Bureau. Nowadays, notwithstanding the statutory language, the FCC treats its present Media, Wireline Competition, Wireless Telecommunications and International Bureaus as the “core licensing bureaus” for reg fee calculation purposes.

The various activities of each of the core licensing bureaus fall into categories. Based on historical data (more on that below), the FCC determines how many FTEs are attributable to each category. The total fees to be collected per category are then calculated by multiplying the total appropriations amount by a fraction, the numerator of which is the FTEs for that category and the denominator of which is the total number of FTEs overall.

Once the fees-per-category have been calculated, the Commission comes up with the fees to be charged individual regulatees within each category by dividing the gross fee for a given category by the total number of “fee payors” in that category. The concept of “fee payor” is somewhat flexible – it depends on “characteristics appropriate to each service, such as the number of licenses or number of subscribers the fee payor has.” (That’s why the Commission prefers to refer to “fee payors” as “units”.)

Some FTEs can’t be allocated to specific categories. Those are deemed to be “indirect FTEs”; they get allocated proportionately among the various core licensing bureaus.

So one thing is clear: the calculation of reg fees depends crucially on the allocation of FTEs. But check this out: the FTE data currently in use are based on data collected in 1998. Back then Commission employees’ time cards tracked their time based on reg fee categories. The FCC abandoned such tracking in 1999 because, among other things, time card entries “prove[d] subjective and unreliable.” Oddly, that subjectivity and unreliability hasn’t stopped the Commission from continuing to rely on the last batch of such apparently subjective and unreliable data (i.e., the 1998 collection) for the last 14 years.

The Commission is now, at long last, asking how it can best update its approach to fee calculations, including (but not limited to) the FTE data on which it relies. In doing so, the FCC is also looking more broadly to establish “overarching goals” to govern its reg fee program. The goals currently envisioned by the Commission are fairness, ease of administration, and sustainability. (Comments on those goals – and any others that might come to mind – are specifically requested in the NPRM.)

As far as the specific fee calculation mechanisms go, the FCC is looking at three general areas for possible change. First, it could jigger with the allocation of FTEs within each bureau. Second, it could update and adjust FTE allocation percentages among the bureaus. And third, it could reallocate FTEs among the fee categories within each of the core bureaus. (If those all sound somewhat duplicative, that’s what we thought, too. The NPRM spells out the intricacies of each of those areas over four-and-a-half single-space pages of bureaucratese, if you’re inclined to wade deep into the weeds on this.)

The bottom line here was perhaps best described by Commissioner Pai:

In 1998, each industry segment largely still played in its own sandbox – telephone companies offered telephone service, cable operators offered cable television, and so on. But today’s currency is convergence: Telephone companies have entered the video market, cable operators are winning voice customers, satellite operators offer competitive radio, television, and broadband services, and wireless providers have unleashed a mobile revolution few if any saw coming.

The Commission must strive to keep pace with this swiftly changing industry – especially when, as here, Congress has affirmatively told us to do so in Section 9 of the Communications Act.

The extent to which any revision in the Commission’s approach – whether broad-brush or finely-tuned – might alter any particular reg fee for any particular regulatee is far from clear. But since reg fees are now a permanent fixture, it would be nice if the calculation of those fees were based on (a) some formula that makes sense and (b) data that are not, by the FCC’s own admission, subjective and unreliable. The NPRM is a welcome step in that direction.

Again, comments on the NPRM are due by September 17, 2012. Reply comments are due by October 16.

OMB OK on FM Translator Application Culling

Meanwhile, back at the FM translator application backlog . . .

In March, the Commission announced the process by which the pile of several thousand FM translator applications, still pending since the infamous 2003 filing window, would be trimmed down. (You can read the Commission’s full 35-page – not including appendices – decision here, or our punchy, far more abbreviated recap of it here.) As we reported in May, the process by which the Commission intends to thin the herd involves “information collections” (as they are known in Paperwork Reduction Act parlance). Such collections must be approved by the Office of Management and Budget (OMB) before they can be implemented.

According to a notice published in the Federal Register, OMB has given its thumbs up to the Commission’s process.  (The imprimatur was technically handed down on July 24.) This clears the way for the FCC to get the culling started. Look for a public notice in the near future setting deadlines and the like. The Commission has been under considerable pressure to move things along on the LPFM front, and clearing the FM translator backlog is an essential first step. Because of that, we won’t be surprised if things start to happen pretty fast at this point. Folks with FM translator applications pending from the 2003 window should familiarize themselves with the FCC’s process as outlined back in March (if they haven’t done so already), determine how that process affects their applications, and be prepared to act in short order. Check back here for updates.

Update: FCC Invites PRA Comments on FM Translator Dismissal/Amendment Process

The Great FM Translator Application Purge has moved one step closer: the FCC has formally initiated the Paperwork Reduction Act (PRA) process which must be completed before the “information collection” aspects of the herd thinning measures can be implemented. With respect to the several thousand new FM translator applications still pending since 2003, the new rules adopted last March in the Fourth Report and Order (4th R&O) impose application caps of (a) 50 nationwide and (b) one in each of the 156 markets identified in Appendix A of the 4th R&O. Any applicant with more than 50 apps nationwide and/or more than one app in any of the listed markets must dismiss enough applications to bring themselves under the limits. The letters necessary to seek those dismissals constitute “information collections” subject to the PRA.

Additionally, the 4th R&O affords pending FM translator applicants some limited opportunities to amend their applications. Those amendments, too, are “information collections”.

With its notice in the Federal Register, the Commission has invited the usual PRA comments on both aspects.  We'd like to be able to tell you exactly what the "information collections" actually look like, but the notice doesn't contain any examples.  Instead, it provides instructions for how to find copies on the OMB website -- but when we tried to follow those instructions, we came up empty.  Ideally this problem will be corrected before comments are due.

And speaking of the due date, anyone so inclined has until June 29, 2011 to submit comments to the Commission. After that, the Commission will bundle up all comments received and ship them over to the Office of Management and Budget, which will open its own 30-day comment period. After that, look for a notice that OMB has approved the process, which will clear the way for the Commission to open its doors for dismissals/amendments. If things move smoothly, it looks like those doors might swing open toward the end of the summer. (Check back here for updates.)

While we would like to say that the PRA process gives everyone a meaningful opportunity to affect the course of FCC regulations, recent experience suggests that that might not be entirely accurate. Still, the invitation for comments has been issued, and we’d be remiss if we didn’t pass the word along.

USF/ICC Update: Changes in Carrier Reporting Requirements Effective May 8, 2012

In its sprawling Report and Order and Further Notice of Proposed Rulemaking on the Universal Service Fund (USF) and Intercarrier Compensation, released last November, the Commission adopted (among a lot of other things) a number of changes to the various reporting requirements. Those requirements affected certain carriers, including competitive eligible telecommunications carriers (ETCs) and incumbent local exchange carriers. (Last December we described how many, but not all, of the extensive changes would affect wireless providers.)

Because many of the modified reporting requirements involved “information collections” subject to the Paperwork Reduction Act, they could not take effect right away. Rather, they had to be reviewed and approved by the Office of Management and Budget. That process has now been completed, according to a notice published in the Federal Register. As a result, a number of the rule changes adopted last fall have now become effective or applicable as of May 8, 2012.

The rules that have become effective are: Sections 54.312(b)(3); 54.313(b); 54.313(h); 54.314; and 54.320(b). The rules that have become applicable are: Sections 54.305(f); 54.307(b) and (c); and 54.313 (a)(1)-(a)(6).

Additionally, the Federal Register notice provides official notification to ETCs and other unspecified stakeholders that information required to be filed pursuant to Section 54.313(a)(2)-(6) and (h) must be filed by July 2, 2012.  Section 54.313 sets out the annual reporting requirements for high cost recipients.

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.

The Quinquennial Question: Should the Ban on Exclusive Program Access Deals Stay or Go?

Tempus fugit! Time for the next five-year assessment of the ban on certain exclusive program access deals – Comments are due by June 22, 2012.

Hard to believe, but it’s that time again – time for the Commission to take a look at competition in the multichannel video programming distribution (MVPD) industry to determine whether the 20-year-old ban on certain exclusive program access deals is still necessary. With the release of a Notice of Proposed Rulemaking (NPRM), the Commission has started that ball rolling again. Interested parties have until June 22 to let the FCC know their thoughts on the issue.

The last two times the Commission considered this question, it concluded that the ban should remain in place. Thanks to at least one intervening court decision, though, this time could be different.

Back in 1992, Congress was concerned about the choke-hold that the largely monopolistic cable industry then had on video delivery in many markets. Congress understood from the FCC that that choke-hold was at least partly the result of the fact that competitors couldn’t secure programming owned by “vertically integrated cable companies”. (In this context, “vertically integrated cable companies” are cable operators that own attributable interests in companies that provide cable programming.)  So Congress just said “no”.

It ordered the Commission (among other things) to prohibit certain exclusivity agreements between a cable operator and a cable program provider in which the operator has an attributable interest. The idea was to assure that all competing cable operators would have access to the primo types of programs most attractive to subscribers.

Congress was aware that the video delivery industry was developing rapidly and that the need for the ban might decline over time. So Congress included a sunset provision: while the 1992 Cable Act required the imposition of the ban, it also required that the FCC revisit the ban in 2002 after the enactment of the Cable Act. Unless the FCC were then to determine that the ban continued to be necessary to protect competition and diversity, the ban would automatically expire. And even if the ban survived the 2002 review, it would be subject to similar reviews every five years thereafter. 

The ban did indeed survive the 2002 review, and the 2007 review as well. But the latter decision was appealed to the U.S. Court of Appeals for the D.C. Circuit in 2010. While the court affirmed the FCC’s decision to leave the ban in place for another five years, the court expressed concern because (a) Congress had clearly intended that the ban go away at some point and (b) the video delivery market has “changed drastically” since 1992. One of the three judges issued a dissenting opinion buying into the appellants’ argument that the ban raised serious First Amendment concerns.

Against that backdrop comes the NPRM.

This time around the Commission appears to be taking to heart the messages from  the Court of Appeals. In contemplation of a possible sunsetting, the Commission is seeking suggestions for how best it could preserve competition and diversity if the ban were finally to be tossed. 

And to those who would urge that the ban be kept in place – at least for another five years – the Commission cautions that it will be looking for specific data and empirical analyses showing that lifting the ban would harm competition. In the past, the ban’s supporters have tended to rely on generalized claims that certain programming controlled by cable-affiliated entities is “must have” and should not be subject to access exclusivity deals. It appears from the NPRM that that won’t cut it anymore.

As a preliminary observation, the Commission notes that, since 2007, there have been at least three developments that might affect the questions at issue: 

The separation of Time Warner Cable Inc. (TWC), a cable operator, from Time Warner Inc. (Time Warner), an owner of satellite-delivered, national programming networks. As a result of the separation, Time Warner’s programming networks are no longer affiliated with TWC, thus reducing the number of satellite-delivered, national programming networks that are cable-affiliated. This is significant because the FCC has historically compared the total number of satellite-delivered channels with the number of those channels affiliated with a cable operator. The actual significance of that comparative approach is not entirely clear.

The joint venture between Comcast (a vertically integrated cable operator) and NBC Universal, Inc. (NBCU), an owner of broadcast stations and satellite-delivered, national programming networks). While this transaction led to an increase in satellite-delivered, national programming networks that are cable-affiliated, the NPRM suggests that the program access conditions of the merger agreement mitigate any adverse effects this deal might have on the video distribution market. (Of course, those merger conditions are in any event set to go away at the end of 2018, and they might be removed or revised earlier than that – so their permanent protective effect are neither as extensive nor as solid as a more general rule or policy applicable to all parties.)

The rapid growth of distributing and viewing of video programming over the Internet (OVD, or online video distribution). In assessing the Comcast/NBCU merger, the Commission acknowledged the potential effect of OVDs on programming choices, viewer flexibility, technological innovation and lower prices. In the Comcast/NBCU Merger Order, the Commission recognized that OVDs “can provide and promote more programming choices, viewing flexibility, technological innovation and lower prices.” According to the Commission, OVDs are a “potential competitive threat” that “must have a similar array of programming” if they are to “fully compete”.  The NPRM solicits information regarding the effect – historical or anticipated – of OVDs on nationwide and regional multichannel video distribution subscription rates. It also asks whether (and if so, how) the emergence of OVDs that could benefit from the exclusive contract prohibition should affect the Commission’s analysis.   (It’s interesting that the FCC may be looking at OVDs as a potential beneficiary of, rather than a reason for sunsetting, the exclusive contract prohibition.)

In view of all these factors, the NPRM asks whether it should: (a) sunset the ban on exclusive contracts involving satellite-delivered, cable-affiliated programming; (b) retain that ban as is, or (c) retain it with some relaxation. It also solicits comments on revisions to the program access rules that might allow it to address alleged violations (e.g., discriminatory volume discounts and uniform prices increases) more effectively.

Anyone looking for continuation of the prohibition – a universe likely to include non-vertically integrated MVPDs – will be expected to demonstrate, with hard data, either that (a) little has changed in the competitive dynamics of the video market since 2007, or (b) as a result of (or in spite of) changes, relaxing or sunsetting the prohibition would harm competition. Among the issues the FCC has teed up are the following:

What is the impact of the allegedly growing number of satellite-delivered national programming networks? According to the NPRM, the percentage of such networks that are cable-affiliated has significantly declined.   One difficult issue here is how to count programming. For example, should a network that provides its programming in standard definition, high definition, 3-D and video-on-demand formats be treated as four networks or one?   (While non-integrated MVPDs might be inclined to argue in this context that a multi-format network like this should really count as only one network, they argued otherwise in 2010 to get the Commission to force regional sports networks (RSNs) to provide access to HD feeds as well as SD feeds.)

Do integrated MVPD/programmers still have the ability to withhold programming from competitors in a manner that harms competition?   The NPRM appears to recognize the continued existence of some popular channels for which there are no current substitutes. The ability to withhold such “must have” channels has generally been viewed as anti-competitive. But the Commission is now looking for “reliable, empirical data” to establish conclusively the existence of such channels. While the notion of “must have” channels may seem obvious – even the Commission seems to acknowledge that RSNs are critical to a competitive MVPD service – proving their existence with facts and figures could be a difficult and expensive proposition.

Do integrated MVPD/programmers still have the incentive to withhold programming from competitors in a manner that harms competition? The historical theory has been that integrated companies are willing to forgo revenue from licensing programming to competitors because such integrated companies can profit more from increased revenues derived from subscribers who flock to the integrated MVPD to get the programming that’s unavailable from its competitors. The NPRM suggests that the decline in national penetration rate for cable operators (67% to 58.5%) may undermine that theory. Of course, presumably the integrated cable operators have lost subscribers to the very competitors to whom they already must make their programming available – so it’s not clear why a declining penetration rate might justify elimination of ban on exclusivity deals, but that’s a point that will presumably be made by commenters.

If, after reviewing all the comments and other record information, the Commission concludes that the prohibition on exclusive programming contracts should be tossed, the Commission will have to decide how, in the absence of the prohibition, it can and should protect and preserve competition. The FCC invites comments on a range of possible approaches, including:

Complete elimination of the prohibition, replaced by reliance other existing protections.    The Commission has complaint processes in place with respect to a variety of programming-related issues on the MVPD front. So even if the absolute ban on exclusive access deals were to be eliminated, aggrieved parties could theoretically still plead their case to the Commission through complaints. But the complainant would have the burden of proof. That would require the complainant to demonstrate the integrated MVPD had engaged in some “unfair act” the “purpose or effect” of which was to “significantly hinder or prevent” the complainant from providing programming to its subscribers. That’s a tough burden to meet, although the NPRM invites suggestions for easing that burden with respect to RSN, and possibly other, programming (through, perhaps, the establishment of rebuttable presumptions regarding the intent and effect of denying such programming to competitors).

Gradual elimination of the prohibition market-by-market. Under this approach, the prohibition would be left in place, but cable operators or satellite-delivered, cable-affiliated programmers would be permitted to file a Petition for Sunset seeking to remove the prohibition on a market-by-market basis based on the extent of competition in the market.

Retention of a more limited prohibition. If any problem arising from the kind of program exclusivity deals barred by the current prohibition is really limited to certain types of programming, the Commission is open to considering narrowing the scope of the prohibition to reach only RSNs and certain other so-called “must-have” programming.   Again, however, hard data is sought as to the alleged “must-have” nature of protected programming.

Finally, the Commission notes that elimination of the prohibition could cause substantial disruptions to cable subscribers. For example, some programming agreements entered into while the prohibition has been in effect might provide that, should the prohibition be eliminated, the cable-affiliated programmer could immediately terminate the agreement and instead enter into an exclusive arrangement with its cable affiliate. If such a provision were invoked, subscribers to non-affiliated MVPDs might suddenly lose access to desirable programming. What steps, if any, should the Commission take to minimize viewer disruptions if the prohibition is eliminated?

The NPRM is a wide-ranging invitation for comments on a host of issues, both general and detailed. It is dense with assertions and questions that demand considerable review and deliberation. Since the bottom line here is the possible elimination of a rule that has been in place for 20 years already, everyone affected by that rule should consider how they may be able to influence the final outcome here. 

The NPRM has been published in the Federal Register, which establishes the deadlines for comments and reply comments. Comments are due by June 22, 2012; replies are due by July 23.

Update: LPFM/FM Translator R&O Published in Federal Register . . .

. . . but with one exception, the new rules still aren’t effective

The FCC’s Fourth Report and Order and Third Order on Reconsideration (4th R&O) designed to break the longstanding logjam involving the LPFM and FM translator services has been published in the Federal Register.  (You can read more about the 4th R&O here.) While such publication would often mark the end of the rulemaking process by establishing the effective date of the newly-adopted rules, not so here. Since most of the new rules and policies adopted in the 4th R&O involve “information collections”, they all must first be run through the Office of Management and Budget’s Paperwork Reduction Act drill before the FCC can implement them. The Commission has not yet gotten that particular ball rolling, but we expect it to happen shortly, as the Commission seems highly motivated to wrap up the LPFM/FM translator imbroglio sooner rather than later. Check back here for updates.

The Federal Register publication does establish May 9, 2012 as the effective date of the amended Section 74.1232(d). That’s the rule that allows AM stations to rebroadcast their signals on FM translators. As we reported earlier, the 4th R&O expanded the universe of translators eligible for such cross-service operation. Despite the effective date, though, the rule revision is not likely to have much immediate effect. 

That’s because the rule as revised in the 4th R&O provides that AM signals can be broadcast not only on translators that were authorized as of May 1, 2009, but also on translators that had been applied for as of May 1, 2009. That tweak means that, once granted, any of the 6,500 or so translator applications still pending from the infamous 2003 window could be used for AM translation. However, since none of those applications will be granted until the rest of the 4th R&O takes effect, the May 9, 2012 effective date of the revised Section 74.1232(d) is largely symbolic for the time being.

LPFM - The Next Generation: FCC Invites Comment on Post-LCRA Regulation of LoPos

The Commission struggles to play the hand that Congress dealt it in the Local Community Radio Act

In this our third post in the last week on the subject of recent developments in the regulation of the low power FM (LPFM) service, we look at a number of rule changes proposed by the Commission in connection with its effort to clean up various aspects of that service. That effort, of course, was inspired (and in some respects mandated) by the Local Community Radio Act (LCRA). The proposals in question are contained in the “further notice of proposed rulemaking”  (NPRM) portion of the Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration (5th R&O). They encompass a wide range of LPFM-related topics, many involving considerable complexity. 

We’ll try to hit the high points and make as much sense out of it all as possible, but anyone with a serious interest in the FCC’s LPFM proposals – or in LPFM generally – should be sure to read the full NPRM. Be forewarned, though: the NPRM is not light reading. Keep your NoDoz® handy.

The proposals entail two broad categories of regulations: first, issues arising from the interrelationships between LPFM stations and other stations operating in the FM band; second, issues relating to the process of initially licensing LPFM stations.

LPFMs vs. Other FM Band Users

Second-Adjacent Channel Separation Waivers

First out of the box is a proposed approach to requests by LPFM stations for waiver of otherwise applicable minimum second-adjacent channel separations. In the LCRA Congress expressly authorized the FCC to waive those spacing requirements in some circumstances. What circumstances? Congress thought second-adjacent waivers should be permitted as long as the LPFM applicant establishes that its proposal “will not result in interference to any authorized radio service”. That showing can be made “using methods of predicting interference taking into account all relevant factors, including terrain-sensitive propagation models”.

Of course, the Commission has had its own second adjacent waiver policy in place since 2007. But that policy (which involves a “balanc[ing]” of various interests) is a bit more loosey-goosey than what Congress seems to have had in mind. Congress’s approach requires first and foremost that the LPFM “will not result” in interference, regardless of whether the extent of possible interference might be said to be offset by any possible gains in service. So the Commission tentatively figures that its 2007 approach is history (although it still invites comments on that tentative conclusion).

How would an LPFM applicant demonstrate that its proposal would not “result in interference”? The Commission suggests that the undesired/desired signal strength ratio approach (used, for example, in assessing some translator applications) might be the way to go. It also suggests that LPFMs might be permitted to use directional antennas to protect second-adjacent stations.

The Commission also offers some other factors it might be inclined to consider in connection with second-adjacent waiver requests. For example, should LPFM applicants be required to show that no fully-spaced channels are available? Is it relevant that the LPFM proposal would eliminate or reduce interference received by the LPFM? How about looking at whether the proposal would result in “superior spacing” to other FM operations (full-service, translator, booster) on co-channel and first-adjacent channels? The FCC appears to be wide-open for further suggestions here.

With respect to handling complaints about interference caused by an LPFM station with a second-adjacent spacing waiver, the LCRA lays out a clear process to be followed. In the NPRM the FCC acknowledges that Congressionally-mandated process and proposes to incorporate it into the rules. But in doing so, the Commission solicits comments on some practical questions the LCRA doesn’t address – like how to define a “bona fide complaint”, and how the LPFM station accused of interference might demonstrate that it’s not the source of the complained-of interference.

Third-Adjacent Channel Interference

As previously reported, the Commission has – at Congress’s behest – deleted most (but not all) of the minimum separation requirements for third-adjacent channel LPFM operations. But that doesn’t mean that LPFM interference to third-adjacent stations is a thing of the past. To the contrary, it merely means that a threshold protective measure designed to prevent such interference has been removed. In ordering the deletion of the separations, Congress provided that LPFM stations would still be subject to interference limits. But in so doing, Congress managed to introduce an astonishing level of complexity which the Commission is now attempting to sort out.

Because of the language of the LCRA, the Commission finds itself required to establish two separate and distinct “LPFM interference protection and remediation regimes”. The first applies to LPFM stations that would have been short-spaced if the Commission had retained the minimum separation limits for third-adjacent operations; the second applies to LPFM stations that would not have been so short-spaced.

(Irony alert: Yes, it turns out that, even though the third-adjacent separation limits have been technically deleted from the rules, they will still be retained in the rules – but “solely for purposes of reference” to permit the Commission to determine which protection/remediation “regime” is to be implemented when third-adjacent interference rears its ugly head.)

Remediation Process for Section 7(1) Stations -For LPFM stations that would be short-spaced to third adjacent operations under the old spacings – what the Commission refers to as “Section 7(1) Stations” – the drill would track the process used for translators. Any actual interference from a Section 7(1) Station to the “direct reception by the public of the off-the-air signals of any authorized broadcast station” would be prohibited, regardless of where or when the interference occurs.  If such interference were to crop up, it would have to be eliminated or the LPFM would have to cease operation.

While the translator rules don’t say so in so many words, in order to warrant the Commission’s attention an interference complaint must be “bona fide”. In the FCC’s view, that means that the complainant must be “disinterested”, i.e., not having any “legal stake” in the matter.

Since the LCRA specifically instructs the Commission to use the translator interference remediation process (currently codified in Section 74.1203), it’s doubtful that the FCC has much room to change that process at all relative to LPFMs. Still, the Commission asks whether any changes might be possible and, if so, what they might be.

Remediation Process for non-Section 7(1) Stations – All LPFM stations that don’t qualify as “Section 7(1) Stations” would be treated as “Section 7(3) Stations”, which would enjoy a considerably more lenient process for dealing with interference. Where Section 7(1) Stations would have to either eliminate interference or turn themselves off regardless of where that interference might occur, Section 7(3) Stations would merely have to “address interference complaints within the protected contour” of the interfered-with third-adjacent station. (The LCRA also calls for the FCC to “encourage” Section 7(3) Stations to “address” any other complaints regardless of the locus of the interference.)

Of course, the statutory term “address” is not particularly specific. While it seems clear that “addressing interference complaints” does not require “eliminating” interference, “addressing” has still got to involve some action on the part of the LPFM station. But what exactly must an LPFM station do to “address” an interference complaint? The Commission’s not sure, so it has invited comment on that fundamental question, as well as other more practical issues (e.g., should complaints have to be filed with the Audio Division; should the complainant be required to provide contact information).

The LCRA does specify that newly-constructed Section 7(3) Stations must be required to broadcast, periodically during the first year following construction, announcements alerting listeners to the potential for interference. The announcements must instruct listeners to contact the LPFM station to report interference. (According to the LCRA, the LPFM station must in turn notify the FCC and any affected stations about any complaints within 48 hours of the time they roll in.)   The Commission is dutifully proposing to follow through with that, but it has a number of questions about the details – should the text of the announcements be specified by the Commission, when and how often should they be aired, etc. Oh, and the Commission is also thinking that it might impose the announcement requirement on newly-built Section 7(1) Stations, even though the LCRA does not expressly authorize such a requirement.

Translator Input Complaint Procedure

The LCRA requires the Commission to modify its rules to “address the potential for predicted interference to FM translator input signals on third-adjacent channels”. This is a significant change, since the Commission’s current policy is to require remediation of actual interference. That is, under the FCC's existing policy, questions of third-adjacent interference from an LPFM station to a translator’s input signal would be dealt with only if such interference actually arises; no consideration to the potential for such problems is given at the initial licensing stage.

Obviously, Congress’s approach – requiring the FCC to “address the potential” for such interference – means a change in the FCC’s SOP on this front. Rather than wait for an already authorized station to cause interference, the Commission will have to consider the possibility of interference before authorizing construction in the first place.

Accordingly, the Commission is proposing that any application for a new or modified LPFM station will be barred from using a transmitter site within a “potential interference area” of any FM translator station that receives the off-air signal of a third-adjacent channel FM station. Applications proposing such a site would be dismissed.

The term “potential interference area” would, for purposes of this policy, be defined as

any area within 2 km of the translator site or any area within 10 km of the translator site within the azimuths from -30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator.

Applications specifying transmitter sites within “potential interference areas” could still be filed, as long as they include an exhibit demonstrating that no interference to off-air reception will be caused.  Applicants could make that demonstration by showing that the ratio of the proposed LPFM signal to the FM signal would be below 34 dB at all locations. Alternately, they could use an equation set out in Section 2.7 of “Experimental Measurements of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume One—Final Report (May 2003)”, which is a go-to resource when it comes to the technical aspects of LPFM.

I.F. Separation Requirements

The Commission is proposing to remove the requirement that LPFM stations operating with less than 100 watts protect full-service station on their intermediate (I.F.) frequencies. This change would bring LPFM into regulatory parity with FM translator stations and Class D FM stations, which are already exempt from I.F. when operating with less the 100 watts ERP.

LPFM Licensing Processes

Anyone who may be thinking about filing an application in the next LPFM window should pay particular attention Paragraphs 47-66 of the 5th R&O. There the Commission proposes a considerable number of changes to the some important aspects of the application and selection process. The proposals include:

Elimination of the LP10 class of service (i.e., LPFM stations with maximum power of 10 watts ERP at 30 meters HAAT), but creation of a new higher power class to operate with up to 250 watts ERP at 30 meters HAAT in certain smaller communities, rural areas, or “non-core” locations (i.e., outside population centers) in larger markets;

Clarifying that American Indian Tribes and Alaskan Native Villages (Native Nations) are both (a) eligible to apply for LPFM stations and (b) entitled to a point in the point system selection process. The NPRM also seeks comment on whether Native Nations should be permitted to exemptions from the multiple ownership and cross-ownership rules so that they might in some circumstances own more than one LPFM station and full-service stations at the same time;

Permitting cross-ownership of LPFM stations and one or more FM translator stations;

Jiggering with the process for selecting from among mutually exclusive applicants in various ways designed to further emphasize and enhance the “local” nature of LPFM licensees and the service they’re likely to provide;

Alternative ways of dealing with tie-breaker and time-share situations.

Again, the 5th R&O is dense with material and should be studied carefully by anyone concerned about LPFM service – or about FM service generally. That includes any potential applicant for an LPFM station as well as any existing full-service licensee who might suffer interference from new or modified LPFM operations nearby. While the Commission obviously has a lot of ideas of its own here, the agency appears to be wide-open to any alternative suggestions that interested parties might want to lob in. 

The LCRA clearly establishes that LPFM as a service enjoys substantial Congressional support – which means that it will have to be reckoned with. The 5th R&O’s NPRM reflects an important opportunity to define how the LPFM service is to be integrated into the panoply of other FM services going forward. For that reason it warrants the serious attention of anyone using, or thinking of using, the FM band.

The NPRM of the 5th R&O has been separately published in the Federal Register which, as we all know by now, sets the deadlines for comments and reply comments. If you want to file comments on any of the FCC’s proposals, you have until May 7, 2012. Reply comments are due by May 21. Since the proposals include some “information collection” requirements, you can also tell the FCC what you think about those, thanks to the Paperwork Reduction Act – comments in that vein are due by June 5.

Third-Adjacent LPFM Spacings Eliminated (Almost)

Most, but not all, third-adjacent separation requirements for LPFM stations set to go away as of June 4, 2012.

For those of you keeping score, the third-adjacent channel separation requirements for low power FM (LPFM) stations are about to be history – like they were back in 2000, before they were reinstated in 2001, at Congress’s express direction. But last year Congress had second thoughts, and so it’s “see ya” once again to the third-adjacent protections . . . except that some will still be with us.

As previously reported, the Commission has recently devised a complex Rubik’s Cube approach to sorting out the longstanding stalemate between FM translator applicants and the LPFM Insurgency (since LPFM is by definition a not-for-profit undertaking, it’s hard to call it an “industry”). But that was only part of the FCC’s recent LPFM-related work. In a separate decision – formally titled (deep breath first) the “Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration” (5th R&O) – the Commission has complied with Congress’s “unambiguous” direction and has tossed the on-again-off-again third-adjacent channel separation requirements applicable to LPFM stations.

The resulting rule changes, set out in the “Report and Order” portion of the 5th R&O, have now been published in the Federal Register. That sets the effective date for those changes. Mark your calendars: the changes are scheduled to take effect on June 4, 2012. (The “Further Notice of Proposed Rulemaking” portion of the 5th R&O contains a welter of proposed rule changes. Those have not yet been published in the Federal Register. We’ll address them in a separate post.)

The changes that have just been adopted are relatively narrow. 

In the Local Community Radio Act of 2010 (LCRA), Congress told the Commission to get rid of the third-adjacent minimum spacing requirements between LPFM stations and other FM band occupants (i.e., full-service FM, FM translators and FM boosters). How hard can that be? Just hit the Delete button every time “third adjacent” shows up in the LPFM rules, right?

Not so fast.

While Congress “unambiguously” wanted the Commission to deep-six third-adjacent protections, Congress also wanted to protect radio reading services (RRS) that operate on subcarrier channels which are particularly susceptible to (wait for it) third adjacent interference. So if you eliminate all third-adjacent separation requirements, which Congress wants, you threaten RRS operations, which Congress doesn’t want. Oops.

No worries. As it turns out, the Commission’s rules already included extra protections for stations carrying RRS on their subcarriers. Those rules, initially adopted back when the FCC first abandoned third-adjacent protection requirements for LPFMs in 2000, had become “redundant” when the requirements were reinstated the next year (at Congress’s insistence). Despite their redundancy, the Commission never got around to deleting the RRS protection rules. Good thing, since they will come in handy now that Congress has ordered those protection un-reinstated. As a result, Sections 73.807(a)(2) and (b)(2) of the LPFM rules will continue to contain some third-adjacent limitations on LPFM stations.

Oh, one more thing. Third-adjacent channel protection requirements applicable to LPFM stations in border areas will also remain in place. Treaties with Canada and Mexico impose such requirements, and nothing in the LCRA suggests that Congress intended to unilaterally revise those treaties.

While prospective LPFM applicants can presumably figure out fairly easily whether they’re close enough to the border to have to worry about the residual third-adjacent limits, the RRS question is another problem entirely. The FCC generally doesn’t regulate, much less keep track of, subcarrier use. As a result, figuring out what stations are actually carrying RRS on their SCAs may be a tad problematic.

Bottom line: Consistent with the will of Congress, third-adjacent minimum distance separation requirements for LPFM stations have been tossed . . . except (a) in border areas or (b) when the third-adjacent full service station happens to be providing RRS. The elimination (or, more accurately, semi-elimination) of these requirements is set to take effect on June 4, 2012.

Translate This! FCC Breaks LPFM/FM Translator Logjam

Complex process aims to preserve LPFM opportunities while allowing grants of some long-pending translator apps

In 2003 the Commission opened its doors to new FM translator applicants – and more than 13,000 applications walked in. Now, nearly a decade later, some 6,500 of those applications are still pending. But never fear. With some Congressional prodding (in the Local Community Radio Act (LCRA)), the FCC has knuckled down and devised a complex system for processing the remaining translator applications while assuring that translators will not gobble up all the available spectrum to the exclusion of new low power FM (LPFM) applicants. That system, first proposed last summer, has now been officially adopted in a Fourth Report and Order and Third Order on Reconsideration (4th R&O).

Congress insisted in the LCRA that the LPFM service be treated as “equal in status” to FM translators and boosters. Congress was less clear as to what, precisely, it meant by the phrase “equal in status”. Sorting that out was left to the Commission. The first 14 or so pages of the 4th R&O are devoted to identifying the “broad interpretive principles” underlying the LCRA. Feel free to read through them if you’re interested. For our money, your time would be better spent on pages14-25, particularly starting on page 19. That’s where the Commission explains its “revised translator application processing and dismissal policies” – i.e., how it’s going to cull grantable translator applications without shutting out LPFM wannabes.

It’s not necessarily pretty, and it certainly isn’t easy, but the Commission’s system seems to do the trick, preserving theoretical opportunities for future LPFMs while still allowing relatively prompt grant of more than 1,000 (by the Commission’s estimate) new translators from the applications filed in 2003.

If you’ve got one or more translator applications pending from 2003, pay attention. You’ll be having to do some homework, probably in the not too distant future. (The effective date of the new processes won’t be set until the 4th R&O makes it into the Federal Register. Check back here for updates on that – and know that the Commission is planning to move forward quickly with its efforts to clear the translator backlog while opening a filing window for LPFMs.)

Processing Pending Translator Applications

Here’s how the newly-adopted process is going to work.

Market Definition – “Spectrum Limited” vs. “Spectrum Available”

As previewed in last summer’s Notice of Proposed Rulemaking, the Commission has studied the availability of LPFM opportunities in the top 150 Arbitron markets (and six additional markets where more than four translator applications are pending). It did this by examining, for each of those markets, a thirty-minute latitude by thirty-minute longitude grid laid out over the center-city coordinates. The grid consists of 961 points (i.e., 31x31), and for each point the Commission analyzed the availability of all 100 FM channels for LPFM use. 

To be deemed available for such use, a channel at any particular point in the grid had to fully satisfy co-channel, first- and second-adjacent channel LPFM spacing requirements with respect to all outstanding authorizations and pending applications (including pending translator apps).

From the grid analysis the Commission determined how many LPFM availabilities exist in each of the studied markets. (“Availabilities” in this sense include both vacant channels and channels currently used by LPFM stations.) Armed with those determinations, the Commission then made an initial rough cut, dividing the studied markets into two groups: the “spectrum limited” markets (initially referred to as “dismiss all” markets) and the “spectrum available” markets (initially known as “process all” markets). The former consisted of markets where the number of LPFM availabilities fell below a certain “floor”. For Markets 1-20, the floor is eight channels; for Markets 21-50, it’s seven; for Markets 51-100, it’s six; and for the rest of the studied markets, it’s five. (FYI – The floor numbers were based on a “rough approximation of the number of noncommercial educational stations in the top 150 markets”, according to the Commission.)

The rough cut was then further refined. All markets initially designated as “spectrum available” were analyzed to identify markets in which the population is centrally concentrated. This was done by laying a 21x21 grid (rather than the original 31x31) over the market and checking the population within that 21x21 grid. If the 21x21 grid population amounted to 75% or more of the population in the 31x31grid, then the relevant “floor” for that market was determined by reference to availabilities only within the 21x21 grid, rather than the 31x31 grid. That exercise moved some of the markets from the original “spectrum available” column over to the “spectrum limited” side of the ledger. (The rationale for this additional step is that LPFMs may be best suited for urban communities, and use of the wider 31x31 grid might not provide an accurate assessment of spectrum availability in the actual population center.)

Using the results of that further analysis – along with up-to-date BIA information – the Commission devised its final lists of “spectrum available” and “spectrum limited” markets.

The Culling Process

Now let’s look at the pending translator applications. 

As a threshold matter, the Commission has adopted in the 4th R&O two separate caps on pending translator applicants. First, there’s a nationwide limit of 50 applications (from the 2003 filing window) per applicant. Second, each applicant may prosecute only one application in each of the 156 markets analyzed by the Commission. So if you’re among the pending applicants and you have more than 50 applications and/or more than one application per market, you will need to decide which of your horses you want to keep riding. The Commission will issue a public notice alerting applicants when and how applicants in that situation will have to advise the FCC which applications they plan to stick with – but be alert: much of the procedural spade work on this has been started already (including the Paperwork Reduction Act process), so things could happen quickly. While some analytical tools have already been made available to help run preclusion studies, word is that more such tools will be released soon. (Anyone who has to worry about tossing applications overboard should be careful NOT to consult with other applicants in making the decision about which apps to toss: as indicated below, the anti-collusion rules are still in effect.)

Once that winnowing process has been completed, all remaining applications in “spectrum available” markets will be processed, starting with any singletons and moving through the remainder of the mutually exclusive (MX) groups. MX applicants will be given an opportunity (probably no more than 90 days) to work out their mutual exclusivity by amendment or settlement – after which, it’s on to the auctions. Of course, amendments cannot preclude any LPFM availability identified in the grid studies. Amendments will be processed first-come/first-served, but unamended applications will enjoy cut-off protection against amendments filed during the settlement window.

As far as applications in “spectrum limited” markets go, there’s good news and bad news. The good news is that, contrary to the FCC’s original proposal last summer, all translator applications in “spectrum limited” markets will not be automatically dismissed. 

The bad news is that, to avoid dismissal, such applicants will have to demonstrate that they don’t cause any “preclusive impact” on protected LPFM channel/point combinations. There’ll be one opportunity to amend pending proposals to avoid such “preclusive impact”. It’s theoretically possible that some translator applications in some “spectrum limited” markets could squeeze themselves through the LPFM screen the Commission has established. For that reason, the elimination of the initially-proposed automatic universal dismissal is good, especially for proposals outside any market grid. (In-grid proposals, however, are less likely to make the cut.)

And there’s more bad news for any translator applicant proposing facilities outside the 31x31 grid in one of the Top 50 “spectrum limited” markets. If that’s you, you will also have to make a “Top 50 Market Preclusion Showing”, i.e., a demonstration that either:

(a) no LPFM station could be licensed at the translator’s proposed transmitter site or,

(b) if an LPFM station could be licensed at the site, an additional channel remains available for a future LPFM station at the same site.

Good luck with that.

A couple more tips on dealing with markets and grids.

First, deciding what’s a “protected LPFM channel/point combination” will vary, depending on whether you’re in a “spectrum limited” or “spectrum available” market. 

For “spectrum available” markets, an LPFM channel/point combination is entitled to protection only if an LPFM station at that site would meet all spacing requirements, including full spacing to all pending translator applications on co-channel, first- and second-adjacent channels. A pending translator application automatically meets that standard since, by definition, the hypothetical LPFM would have to be fully spaced to the pending application already. But note that, if the translator application is amended, all bets are off as far as the amendment goes: the amendment would have to demonstrate adequate spacing to all LPFM channel/point combinations.

For “spectrum limited” markets, on the other hand, the calculation (for both channel/point and Top 50 Market Preclusion studies) will “assume the dismissal of all translator applications in the market”. Also, neither of those calculations will take into account either (a) second-adjacent spacings to authorized stations or pending applications or (b) I.F. spacing requirements. In other words, the Commission is assuming that all LPFM applicants would be able to qualify for waiver of the second-adjacent spacing requirement, and it apparently doesn’t care about potential I.F. short-spacing.

Second, bear in mind that the grid for any particular market may be smaller than the market itself. LPFM opportunities that might exist outside the grid are not entitled to protection in either “spectrum limited” or “spectrum available” markets. So a translator application in any “spectrum available” market or any “spectrum limited” market below the Top 50 will be grantable if it specifies a site which meets the minimum LPFM-translator spacings. (And don’t forget that translator applicants in the Top 50 “spectrum limited” markets must also make that pesky preclusion showing.)

Other Matters

AM on FM Translators – The 4th R&O strikes a blow for the AM industry by expanding the universe of FM translators eligible to rebroadcast AM signals. In 2009, when such cross-service rebroadcasting was first permitted, the Commission limited eligibility for AM rebroadcasts to FM translators already authorized as of May 1, 2009. That meant that the 1,000 or so new translators which the Commission expects to grant out of the still-pending vintage 2003 applications would not have been available for AMers. The 4th R&O, recognizing that the cross-service option has been a “very successful deregulatory policy”, takes care of the problem by specifying that rebroadcast of AM stations will be permitted on any translator the initial application for which was pending as of May 1, 2009.

Since there haven’t been any new FM translator windows since May, 2009, that revised date limitation encompasses all currently existing and applied-for translators. As a practical matter, that may be all the translators there are likely to be. The Commission has committed to opening a new LPFM window before any further translator filing opportunities arise. The effect that that LPFM window will have on possible future translator opportunities isn’t clear. While a tsunami of LoPo applications could clog things up a lot, the flexibility of the translator rules may still afford plenty of opportunities down the line. We’ll just have to wait and see.

Freezes on New and Mod Translator Grants – Since 2005 there has been a freeze on grants of any of the 2003 translator applications, and since last year there has been a freeze on the filing of any translator “move-in” applications (other than relocations within the same “Spectrum Limited” market). Those freezes appear now to have been lifted. The 4th R&O expressly lifts the freeze on acting on any of the 2003 applications. It seems also to indicate that the move-in freeze is similarly lifted, although the 4th R&O is not as clear and unequivocal on that point as one might like. (Look for a clarifying notice on this, and possibly other aspects of the 4th R&O, at some point down the line.) 

Heads up, though. New move-in and mod applications that would bring a translator into a “spectrum limited” market will have to demonstrate that they will have no “preclusive impact” on protected LPFM channel/point combinations.

Anti-collusion Prohibitions Still In Effect – Translator applicants from the Class of 2003 should be aware that they are still subject to the anti-collusion rules, and will remain so at least through the process of identifying which applications they will continue to prosecute notwithstanding the application caps described above. As we have frequently cautioned prospective auction participants, those anti-collusion rules are strict, not necessarily intuitively obvious, and often unforgiving. Before discussing your plans and strategies with any third parties, you would be well advised to check those rules over to be sure that you’re not digging yourself into an unfortunate hole.

The Commission (and, in particular, the folks in the Audio Division) have completed a truly herculean task here. Sorting out the conflicting interests of translator and LPFM proponents was difficult enough, but doing so against the backdrop of 6,500 or so long-pending translator applications screaming for attention and Congressional direction that provided little useful, er, direction makes the accomplishment even more impressive. The way is now clear for the processing of a significant number of those translator applications. While it seems fairly obvious that few new translators will be authorized in the middle of major markets, that shouldn’t surprise anybody: the translator service was, after all, not designed for major markets.

Again, if you have one or more translator applications pending, you should be sure to get with your consulting engineer and start looking closely at the information from the FCC’s grids. It’s likely that you’ll be needing to make some decisions in the not-too-distant future, and the more time you give yourself to figure out your best move(s), the better off you’ll be when the time comes to make those moves.

FCC's USF/ICC Order: How It Affects Wireless Providers

A semi-brief overview, from the wireless perspective, of the massive order overhauling the Universal Service Fund and Intercarrier Compensation system

The FCC released its historic 751-page Report and Order and Further Notice of Proposed Rulemaking on the Universal Service Fund (USF) and Intercarrier Compensation on November 18, providing a sumptuous repast for the communications industry to feast on over the Thanksgiving holiday.   It took many readers a few weeks to fully digest the vast smorgasbord of items resolved by the Commission in this one proceeding.   But having pushed ourselves away from the table at last, we can now comment on particulars of the Order that most affect wireless providers.   The Order also very radically affects the rules governing intercarrier compensation and USF for wireline service, but we are reporting on those developments separately out of compassion for our readers.

Definition of Supported Services. The first big step taken by the Commission was to bring broadband within the universe of services supported under the USF umbrella. The FCC chose not to simply define broadband as a supported service, but instead to expand its definition of supported “voice telephony” to include VoIP. At the same time, the FCC is requiring supported voice telephony providers to provide broadband.  

This awkward dance permits the Commission to continue ducking the issue of whether broadband should be re-classified as a “telecom” service regulated under the common carrier regime of the Communications Act or an “information” service regulated only under the FCC’s ancillary jurisdiction. But this dance creates problems of its own.

Because USF support is expressly targeted at “telecommunications services,” the FCC jeopardizes its whole scheme for supporting broadband. For example, the FCC relies on Section 706 of the Act as a source of authority to support broadband through the USF. That section directs the Commission to accelerate the deployment of advanced telecommunications capabilities regardless of whether they are strictly “telecom” services. However, the Commission then imposes on non-telecom service broadband providers the same requirements that apply to regular eligible telecommunications carriers (ETCs) who of course are telecom service providers. 

One of the requirements so imposed is that an ETC must provide stand-alone voice telephony throughout its “designated service area,” yet many non-telecom broadband providers will not have designated service areas. Similarly, many broadband providers simply offer a broadband data pipe and do not care what particular applications (such as a VoIP application) their customers use over the pipe. Although it would make sense for such service providers to qualify for USF support, the Commission’s scheme would exclude them.

Required service levelsUSF fixed service recipients must provide broadband at speeds of 4 Mbps downstream and 1 Mbps up. This represents a great leap upward in the minimum speed expected of a broadband provider. Latency of less than 100 milliseconds is expected and, while monthly capacity requirements are not specified, the FCC expects wireless broadband providers to offer capacity limits consistent with those offered in urban areas. 

Build-out areas and “unsubsidized competitors”. USF support will be offered for the build-out of areas now unserved by an unsubsidized competitor.  The definition of an “unsubsidized competitor” is critical here because there are many areas where mobile wireless providers offer service and landline providers do not. This would prevent landline providers from receiving build-out support in those areas. The Commission protected local exchange carriers (LECs), however, by defining an “unsubsidized competitor” as a “facilities-based provider of residential fixed voice and broadband services.” Fixed voice and broadband service is defined as service to end users primarily at fixed endpoints using stationary equipment. This limitation to fixed services is curious since so many people these days are now cutting the cord not only for voice service but for data service as well.

Broadband service to end users primarily using mobile stations would not qualify. However, the FCC did note that a mobile services provider could become an unsubsidized competitor by offering fixed service that guarantees that the speed, latency and capacity minima applicable to fixed providers will be met throughout the relevant area. 

Elimination of identical support rule. The FCC has done away with the identical support rule which subsidized multiple carriers in any given area. This action alone hacks several hundred million dollars in support away from competitive ETCs (CETCs) because they now no longer qualify for duplicate payments. 

Strangely, the FCC did not seem to even consider the possibility that a CETC, whether wired or wireless, should be the surviving single recipient of the funding instead of the LEC.  It simply provided for a phase-out of support to existing non-LEC recipients by mid-2016. In addition to retaining their current subsidies (as revised to cut out certain support mechanisms), LECs also get the privilege of offering to be the sole provider of basic services in currently unserved areas in each part of a state where they provide service. That is, an existing LEC ETC may propose to provide the full panoply of supported services everywhere – but not less than everywhere – in the state where it is the designated LEC. 

If the LEC picks up that option, obviously no other carrier would be designated to provide fixed service in those areas. If no LEC picks up the challenge, then there will be unserved areas in each state where USF support will be offered by a reverse auction mechanism. Build-out in these currently unserved areas will be supported by a one-time distribution of up to $300 million to price cap LECs.

Mobility Fund (Phase I). The FCC is also offering a one-time build-out subsidy to mobile services providers via a Mobility Fund (Phase I). Under this program, up to $300 million will be distributed to companies willing to provide service to areas currently without 3G or better wireless service. (An additional $50 million is made available for build-out of unserved tribal areas.)  These funds are expected to be up for grabs by a reverse auction to be conducted in the third quarter of 2012. Several components of participating in this auction involve considerable lead time.

  • Identifying unserved areas. The FCC has promised to identify, prior to the auction, the areas that are actually currently unserved. This is a big improvement over the 2009 federal stimulus plan process where each individual applicant had to figure out for itself whether an area was unserved or not. In determining whether an area is unserved, the FCC will take into account commitments to provide service in an area (including stimulus fund-based commitments) made prior to the end of 2012. 

Unserved areas will be determined on a census block basis using road miles as the marker of mobile service. A tentative map of unserved areas will be posted prior to the auction, with the public given an opportunity to point out that areas have not been accurately characterized. A final map of unserved areas will be posted prior to the auction (typically a couple of months before), but that poses an obvious logistical problem: most interested parties will not have enough time to apply for ETC designation in those unserved areas.

  • Auction eligibility requirements. To participate in the auction, an entity must: (1) be an ETC; (2) have access to spectrum by ownership or lease; and (3) be financially qualified to provide service after the build out takes place. This raises a host of chicken and egg problems that the FCC does not seem to have adequately considered.  

First, in some states the ETC designation process can take years. By imposing this hurdle, the FCC is precluding perfectly capable and willing carriers from participation. 

Second, in many instances it may be impossible to serve as an ETC unless one is receiving USF support. One would be loathe to take on ETC responsibilities without knowing beforehand that the support money will be available, but the rules are set up backwards. The Commission alludes cryptically at one point in the Order to a “conditional” ETC designation where one could be designated as an ETC conditioned on receipt of USF support. This process would partly solve the problem, if both the FCC and the states will grant provisional ETC designations – something that is far from clear. In any case, interested parties should start thinking about applying for ETC designation now if they hope to participate in the auction.

Third, a prospective service provider whose viability depends on whether it will be receiving USF money might not be want to buy or lease the necessary spectrum without that assurance. Yet the Commission’s rules require that the spectrum be in hand. The sole break here is that the spectrum acquisition or lease may be conditioned on receipt of Phase I USF support.    

And fourth, the auction participant must not only certify that it is financially capable of providing service in the area after the build-out is complete, but also secure its obligation by posting a letter of credit in favor of the FCC. This unusual arrangement might preclude all but very financially well-heeled companies from being able to participate.

  • Obligations of winners.   Winners in the reverse auction will have to provide either 3G service (200kbps down/50 kbps up) or 4G service. The service provided must be measured by drive tests and reported to the FCC. Winners must also: allow collocation at reasonable rates on towers constructed with USF money; allow voice and data roaming; and charge rates comparable to urban rates.   Winning bidders who fail to meet their build-out obligation will default on their Line of Credit to the FCC and be required to repay all monies received under the program.
  • Auction procedures. Most of the details of the reverse auction have been left to the FCC’s auction staff to hash out, but the FCC did express a preference for a single-round sealed bid auction, as distinct from its normal multiple round bid process. This would obviously require bidders to make their single best bid at the outset with no opportunity to drop the bid lower in reaction to other bids.

Mobility Fund (Phase II). In addition to the one-time Phase I funding opportunity, the FCC plans a Phase II program providing funds to cover on-going costs of providing mobile service to areas requiring subsidies. $500 million has been allocated for this purpose, of which up to $100 million is prioritized for tribal needs.   This money will be awarded by a reverse auction process similar to that used for Phase II.  

The specifics of which areas – unserved? underserved? high cost? – will qualify for such subsidies are not yet clearly defined. In particular, if Phase II support is limited to unserved areas, that would seem to preclude recipients of Phase I build-out funding from qualifying for Phase II operations funding, particularly since they would have been required as a Phase I condition to attest that they have the financial wherewithal to operate without such support. Phase II will be fleshed out by the further rulemaking portion of the FCC action.

Intercarrier compensation (wireless issues only).   The second major subject area of the FCC’s order is intercarrier compensation, a field which spans all exchange of traffic between carriers and, now, some non-carriers. Because of the sweeping extent of the changes regarding intercarrier compensation, we will limit this discussion to items particular affecting wireless interests.

The FCC’s Order here is a genuine and fundamental sea change in the way traffic exchanges have been handled for generations.   Specifically, the FCC has adopted as its root principle that “bill-and-keep” should be the basis for exchanges. This principle – that each carrier should charge its own customers for service provided to them and not be compensated by other carriers that interconnect with it – represents a repudiation of the previously prevailing concept that the calling party is the party who benefits by a communication. Instead, the FCC now recognizes that both the called and calling party benefit by connection to the network and that each party should bear its own costs for participating. 

This radical reform at one swoop would erase a myriad of complex payment structures that have governed intercarrier relationships for years. To minimize the trauma of this upheaval, the FCC has provided a six-to-ten year transition period for LECs who have depended on these intrinsic subsidies. The ultimate effect of this reform should be positive for wireless carriers, since various access charges will be reduced or eliminated over time.  To be sure, the FCC did confirm that non-access traffic exchanged between wireless carriers and LECs (typically intraMTA traffic) is to be exchanged on the basis of interconnection agreements between the parties. But with bill-and-keep as the default payment model, non-LECs have a significant leg up in such negotiations. A few other points to be aware of:

  • The Commission did not immediately impose the bill-and-keep regime on originating access charges, though it capped those charges and signaled that intends to move in that direction.
  • The Commission intends its bill-and-keep principle to apply to both intrastate and interstate communications, but the Commission’s authority to impose this rule on intrastate communications is questionable. This issue will certainly be hashed out in the appeals that have already been filed in court.
  • Reciprocal compensation rates between CMRS carriers must be consistent with the rate model adopted for price cap carriers.
  • The FCC decided to treat all VoIP-to-PSTN traffic similarly, regardless of whether it is fully interconnected on a two-way basis. Such VoIP traffic is subject, in the case of toll traffic, to the same rates applicable to non-VoIP traffic, and in the case of other traffic, to reciprocal compensation agreements. This reform is intended to eliminate the widely decried disparity in treatment between VoIP and non-VoIP traffic. Here again the Commission’s refusal to denominate VoIP traffic as telecommunications could undercut its regulatory effort.

We have gone on at greater length here than is our wont, but only because the scope of the FCC’s order is so vast. We expect to be providing further guidance on some of the elements of the USF/ICC Order in the weeks ahead. 

In the meantime, interested parties should be aware that, since FCC’s magnum opus was published in the Federal Register on November 29, the date for seeking reconsideration of any part of the FCC’s action is December 29. Comments on the rate represcription, Connect America Fund, ETC, and auction refinement elements of the Further Notice of Proposed Rulemaking are due by January 18, 2012, and reply comments by February 17. Comments on the intercarrier compensation portion of the rulemaking are due by February 24. with replies by March 30.  

Judicial appeals are due no later than January 30.  Anyone thinking about taking the new rules to court should be aware that a number of other parties have already headed down that path – and, thanks to the U.S. Judicial Panel on Multi-District Litigation, it has been decided that the U.S. Court of Appeals for the Tenth Circuit, headquartered in Denver, will be the court to hear all such appeals in a consolidated proceeding.

FCC Issues Behemoth USF Order

759-page tome hits the streets, with surprisingly brief comment periods

Call me Ishmael! 

That’s how the Commission might have opened its leviathan Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) in the proceeding to overhaul the Universal Service Fund.  Weighing in at a hefty 489 pages – with an additional 16 appendices and four separate Commissioners’ statements bringing the total package to a whopping 759 pages – the document is physically daunting.  And to be perfectly honest, we haven’t read it yet.  But we plan to, and we expect to get a summary of it posted as soon as possible.

However, in a time-honored Washington tradition, the Commission unleashed the R&O/FNPRM at about 6:00 p.m. on a Friday evening.  That would be the Friday before Thanksgiving.  So the prospects for getting a post up in the next couple of days are limited. 

But we have previously reported on an “executive summary” released by the Commission last month, describing the outlines of the ambitious R&O/FNPRM, so interested readers may use that as a sort of Cliff’s Notes intro to the full version for the time being.  And anyone interested in participating in the proposed rulemaking portion of the proceeding better get reading.  Comments on some aspects of the FNPRM are currently due to be filed by January 18, 2012, with replies by February 17.  Comments on other aspects aren’t due until February 24, with replies by March 30.  With Thanksgiving and the year-end holidays fast approaching, those deadlines will arrive sooner than you know it.

Check back here for updates and further information.

"Bill Shock" Off the Docket

FCC proceeding placed on hold as wireless industry adopts voluntary measures to reduce bill shock

As we reported a little less than a year ago, the FCC released a Notice of Proposed Rulemaking proposing that wireless carriers be required to take steps to avoid “bill shock”.  Readers with good memories will recall that in the summer of 2010, Congress, the Administration and the FCC were highly exercised about the heartbreak of bill shock. Numerous complaints were rolling in from parents of teenagers and international travelers, among others, who were shocked to discover that they had somehow exceeded their plan limits or incurred international roaming charges which they had not expected. Horror stories of phone bills of $34,000 and $18,000 prompted our trusty regulators to leap into action with a plan to make carriers warn consumers of impending danger before it strikes.

That was then; this is now.

The furor over bill shock died down in 2011, with the FCC turning its attention to other matters, and what had seemed to be a major consumer crisis in 2010 faded from the spotlight entirely.   Some carriers, chastened by the bad publicity and customer relations resulting from the horror stories, started voluntarily warning their customers about impending surcharges. Now that voluntary movement has crystallized into an industry standard.   CTIA (official name: “CTIA – The Wireless Association®” – don’t forget the ®, please), which is comprised of companies serving the vast majority of American wireless customers, announced that it has adopted new guidelines as part of its Consumer Code for Wireless Service. Dubbed the “Wireless Consumer Usage Notification Guidelines” (and appended to the Consumer Code as the eleventh provision), the CTIA’s standards appear largely to track the proposals put forth by the Commission last year. The plan calls for notification to consumers that they are about to exceed and/or have exceeded the minutes of use included in their plans, and notification when international roaming charges will be assessed. All notifications will be cost-free to the consumer, and they will be provided on an “opt-out” basis – i.e., unless Joe or Loretta Cell-User expressly chooses not to receive the notices, he/she can expect to be getting them.   

The guidelines are, of course, voluntary. No carrier has to abide by them, unless it voluntarily subscribes to the CTIA’s Consumer Code.  The notifications are to be phased in over the next couple of years. By October, 2012, participating wireless providers will be providing required alerts relative to at least two of the four service categories (i.e., voice, text, data and international use); full compliance is not due until April, 2013. The fine print on the guidelines has yet to be revealed – for example, how and when is the consumer supposed to receive these warnings?   Nevertheless, the FCC breathed a sigh of relief at not having to impose new regulations on an already highly regulated industry. If the industry is willing to police itself, all the better. So the FCC put its proposed anti-bill shock regulations back in the freezer in the hope and expectation that the industry guidelines will eliminate the problem.

This observer can attest that he has already gotten a timely warning from AT&T that his daughter was fast approaching the data limit on her smart phone plan. That warning resulted in a rather more forceful and dire warning being delivered to the daughter in question. Disaster safely averted. And possibly proof that common sense, bad publicity and the mere threat of regulatory intervention can sometimes work as well as actual governmental regulation in addressing social ills.

Closed Captions for the Open Internet?

The FCC proposes to require closed captioning for TV programming transmitted via the Internet; comment deadlines already set

The FCC has launched a rulemaking to implement the closed captioning sections of the 21st Century Communications and Video Accessibility Act (CVAA). The new rules will impose closed captioning requirements on certain online television programming; they will also require captioning capability for a wide variety of devices that are designed to receive or play back video, potentially including smartphones, computers, tablets, game consoles, video recorders, and set-top boxes.

Closed captioning is the text on a television screen that transcribes the audio portion of the program. (“Closed” means that viewers can turn the captioning on and off at will.) Today most television programming, whether delivered via broadcast, cable, or satellite, must carry closed captioning, and television sets 13 inches or larger must be capable of displaying the captions. But online television – think Hulu – has not been subject to these rules. And the rapidly-proliferating variety of non-television video display devices, like tablets, have not been required to have the technical capability to display captioning.

That’s about to change. Congress gave the Commission until January 12, 2012, to bring the closed captioning rules into the era of mobile and Internet television.

Online Video Captioning

The proposed rules would require captioning only for on-line television programming: i.e., programming offered by a television broadcast station “or generally considered comparable to programming provided by a television broadcast station.” This does not include “consumer-generated media,” so the FCC will not require closed captioning for the funny cat videos you post to YouTube. The FCC seeks comment on the scope of the new rule, asking, for example, what would constitute IP-delivered video programming that is not comparable to programming provided by a television broadcast station.

Furthermore, and importantly, the closed captioning requirement will apply only to programming that was previously shown with captions over traditional media such as broadcast or cable. The Commission proposes to create a mechanism through which distributors can find out whether programs they intend to show online have been previously shown on television with captions.

In contrast to the current closed captioning rules (the ones that apply to 20th century media, like broadcast and cable), the proposed rules place the primary responsibility for providing closed captioning of online video on content owners – the persons or entities actually holding the copyright, rather than the distributors. Video programming owners will be required to send program files with all required captions to video provider/distributors, who will then have to pass the captioned programming through to the end user. Either the content owner or the distributor can petition for relief based on a showing that compliance would be “economically burdensome.”

The NPRM follows the Act’s propensity to play fast and easy with the term “IP-delivered”, using it to mean, generally, “over the Internet.” Of course, data transmitted over the Internet uses Internet protocol (IP). But there is an ongoing transition to networks that deliver all content via IP, regardless of the communications channel. Some providers, for example, operate “triple play” lines to the home that deliver telephone, television, and Internet access using a single IP stream. The TV component of this service could be considered “IP-delivered” video, but it’s not over the Internet. To avoid unintended, duplicative, or confusing obligations, the Commission should clarify how the new rules will relate to these services.

Captioning Capability of Video Devices

The CVAA requires that, if technically feasible, any “apparatus” designed to receive or play back video programming, as well as any “interconnection mechanisms or standards,” must be able to display closed captions (or transmit them, as the case may be). The only exceptions are for: (1) display-only monitors; (2) devices with a picture screen less than 13 inches for which closed captioning capability is not “achievable”; and (3) devices for which the Commission has waived the requirement because they derive their essential utility from non-video purposes.

On the one hand, this represents a stunning expansion of FCC jurisdiction over a vast host of devices it has not previously regulated (except as to stray radio-frequency emissions). Device manufacturers may well become alarmed. On the other hand, except for PCs and larger laptops, most display devices may be able to claim an "achievability" exemption, an exemption available only for devices with less-than-13-inch screens. The iPad, for example, comes in at 9.7 inches, well under the limit, and most competing tablets are smaller. Furthermore, if the industry can settle on a standard file format for IP captions, a simple software switch would be enough to toggle the captions on and off. Added requirements for hardware display devices would then be essentially zero.

The FCC seeks comment on the definitions, terminology, and scope of the requirement, as well as the parameters of each of the exemption categories. Does “apparatus” include software? Are computer monitors exempt? How is “achievable” different from “technically feasible”? Is there a particular file delivery format that devices should support? What multi-purpose devices, or categories of devices, should be waived? And so on. Commenters should note the specific rule provisions set out in Appendix A that are not addressed in the text: for example, requirements allowing users to select the appearance and other properties of the closed captioning display.

The NPRM also proposes procedures for complaint and enforcement of the new rules, including a stipulation that “de minimis” failures will not be treated as rule violations.

This proceeding is set to move quickly, mainly because of the Congressionally-imposed deadline (January 12, 2012) for getting the rules adopted. The Commission’s Notice of Proposed Rulemaking got hustled into the Federal Register, as a result of which comments are due by October 18, 2011, and reply comments by October 28.

Update: New E911 Rules to Take Effect in November

Can you find me NOW? Come November, the chances may be better.

Back in July we reported on the adoption of some new rules designed to make it easier to monitor your location (ours too, but we're more concerned about our readers than ourselves) more precisely through your personal communications devices. The Commission’s Report and Order has now been published in the Federal Register, establishing November 28, 2011 as the effective date of the new rules (not including Section 20.18(h)(2), which has to go through OMB's Paperwork Reduction Act drill first). Some of those rules will be phased in over a multi-year period; others may have a more immediate impact on carriers subject to the more stringent testing regimen and the higher level of location-finding accuracy. Whether or not you the mobile device user will notice any difference is not clear, and probably won’t be until (a) you want to be located or (b) somebody wants to locate you. If the former, let’s hope the new rules work; if the latter, well, it probably depends on who wants to locate you and why.

Update: Reply Comment Deadline Extended (Again) in LPFM/FM Translator Rulemaking

If you’ve been burning the midnight oil working on reply comments in the LPFM/FM translator proceeding on the assumption that those reply comments are due on September 20, you can relax. The Media Bureau has extended the reply comment deadline by a week, to September 27, 2011. This comes at the joint request of the NAB and Educational Media Foundation, who observed that there are a boatload (that would be 47 in all) of comments to which to respond, several of which include extensive technical exhibits. Also, NAB/EMF pointed out that their counsel, and counsel for other interested parties, have been in Chicago at the NAB Radio Show this week.

NAB/EMF advised the Commission that several other parties – including Prometheus Radio Project – did not object to the requested extension. But hold on there, Sparky – it turns out that at least one party did object. That would be the Amherst Alliance, which lobbed in an opposition to the NAB/EMF request the same day that that request was filed. The Alliance (which describes itself as one of several “major LPFM advocacy groups”) took serious exception to any extension. Its concern is that deadline extensions will reduce the chances that the Commission may open an LPFM filing window next summer.

The Alliance’s fears about bureaucratic delay may be valid – but consider this: the NAB/EMF request was filed on September 15, and it was granted on September 16. Say what you will about bureaucratic delay, the Media Bureau can obviously move fast when it wants to.

Update: Comment Deadlines Extended in LPFM/FM Translator Rulemaking

Forget about what they say about ill winds blowing no good. The East Coast’s recent encounter with Hurricane Irene has produced at least one arguable benefit: the Commission has announced that the deadlines for comments in the LPFM/FM translator proceeding have been extended for a week as a result of disruptions from the storm. The new deadlines: Comments are due September 6, 2011; reply comments are due September 20, 2011.

Update: Comment Deadlines Set re Proposed E-911 Rules

Last month we reported on the Commission’s proposal to enhance the location-identification accuracy of E-911 calls. That proposal has now been published in the Federal Register. As a result, the deadlines for comments and reply comments on that proposal have been established: comments are due by October 3, 2011; reply comments are due by November 2, 2011.

Update: Comment Deadlines Set in LPFM/FM Translator Rulemaking

With some proceedings, the FCC seems content to let its handiwork age tastefully before getting published in the Federal Register – like net neutrality, for example, or maybe the CableCARD report and order. That’s definitely not the case with the LPFM/FM Translator Third Further Notice of Proposed Rulemaking. Adopted on July 12, it’s already made it into the Register. That, in turn, establishes the deadlines for comments and reply comments. Get your calendars out: comments are due by August 29, 2011; reply comments are due by September 12, 2011.

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.

MORE New E-911 Rules: Can You Find Me NOW?

Never mind – the Man will know where you are, even if you don’t

Even as privacy advocates are getting increasingly nervous about the extent to which our communications devices keep tabs on our whereabouts, the FCC is looking to make it easier to monitor our location more precisely and over a broader range of devices.   In a combined Notice of Proposed Rulemaking, Third Report and Order, and Second Further Notice of Proposed Rulemaking (let's just go with R&O/NPRM for short), the FCC has taken steps to enhance E-911 accuracy in two respects.  

The new measures build upon rules adopted last year in which the FCC tightened and clarified the accuracy requirements for carriers who employ “handset” and “network” solutions for achieving specified location accuracy levels. (Handset carriers rely on the GPS capabilities of the customer’s handset to establish his or her location.   Network carriers rely on triangulation of radio signals among cell towers to find their customers.) By requiring accuracy levels to be met at the county or PSAP level, the Commission indirectly raised the accuracy bar by ensuring that high accuracy is achieved in all parts of a carrier’s service area. (The FCC provided exceptions for areas where dense forestation or the lack of triangulation would not permit these high levels to be reached.)   These accuracy requirements are to take effect over an eight-year period.

In the R&O/NPRM released July 13, the FCC has ordained that, following that eight-year implementation period, the Commission will do away with the separate network-based accuracy standard entirely.

The network solution was always less accurate and more problematic due to the need for at least three proximate towers to get a meaningful reading.   On the other hand, not all cell phones had GPS capability, so there had to be an alternative to the handset approach. But the FCC has determined that GPS capabilities have become so widespread – and are likely to become even more so – that exclusive reliance on the handset standard is appropriate.  Eight years, the Commission figures, should give the public plenty of time to wring the useful life out of their existing non-GPS-capable phones before those phones get turned in for something new. The FCC is, however, requiring CMRS systems coming on line after the effective date of the new rules to comply immediately with the more rigorous handset accuracy standard. (In any case carriers can continue to use whole or hybrid network- based location techniques – but they must nevertheless meet the stricter handset-based standard of accuracy.)

The new rules also mandate that carriers conduct periodic tests of their actual accuracy levels, with the results to be reported to local authorities and the Commission itself. The Commission feels, understandably, that if called upon to measure their performance regularly and be judged on the results, carriers will be more likely to make maintenance of accuracy a priority.   The exact nature of the tests to be conducted awaits recommendations from the Communications Security, Reliability and Interoperability Council.

Always looking for ways to further the reach of call location technology, the FCC is also seeking comment (in the NPRM portion of the R&O/NPRM) on whether it should extend the E-911 accuracy requirements to outbound-only interconnected voice services. (After much debate, the FCC a few years ago extended the location-identification rules to two-way, interconnected voice services provided over the Internet.  The problem was that a computer being used for VoIP doesn’t know where it is, nor does the network, so the customer has to affirmatively register his/her location so the system will know where he/she is. This is not a very good solution since it depends on the customer to vigilantly protect his/her own health and safety rather than making it the service provider’s responsibility.) 

So now the FCC is now asking: (a) if it should extend this requirement incrementally to include one-way VoIP calling (a “Skype-out” only situation); and also (b) whether there is some way technically to locate VoIP users that does not depend on registration by customers themselves.   No one yet has been able to figure out how over-the-top VoIP providers can possibly do the latter.  

The FCC is also seeking input on how indoor calling locations can be established more accurately. This capability will be increasingly helpful as more and more consumers use their mobile phones as their only phone. Locating a cell phone in a ten-story apartment building on a city block would be impossible even with the strictest outdoor standards adopted by the Commission. Finally, the FCC wants to see if WiFi hotspots can somehow be used to help locate callers.

Comments on this forward-looking part of the FCC's action are due 60 days after publication in the Federal Register, with replies 30 days later. (Check back here for updates on those deadlines.)

We cannot close without sounding a warning note on the civil liberties front. The FCC certainly means well in trying to compel carriers and VoIP providers to carefully, constantly and precisely track the location of their customers. But the potential for abuse is already apparent. Divorce lawyers have discovered that they can track an errant spouse's whereabouts by cell phone. Law enforcement now relies on cell phones to easily track not only fugitives from justice but also “persons of interest”. Merchants track people’s whereabouts so that coupons and promotional offerings can be sent to them when they are immediately next to the potential point of sale.  

Knowledge of a person’s location, it turns out, is a valuable commodity indeed.  

But we are being forced to give this knowledge away for free and without any opt-out choice. The Commission’s R&O/NPRM nods at the privacy concerns raised by the heightened location requirements, but also notes that consumers’ privacy rights are statutorily waived in connection with the delivery of emergency services.

Imagine if a chip were compulsorily implanted in each of us at birth that would permit a government computer to know where we are at all times. In some ways that would be very useful – no lost children, no missing persons, no wandering dementia victims – but the notion is an affront to the inviolability of our persons. Unfortunately, the cell phone, which has become a kind of externally-appended computer chip for many of us, will soon serve that exact function.   We are learning once again that “security” is too often purchased with a subtle loss of privacy, a loss of freedom, and a loss of that most  cherished right cited by Justice Brandeis in his dissent in Olmstead v. United States: the right to be let alone.

LPFM v. FM Translator: The FCC Moves to End the Stalemate

With Third Further Notice of Proposed Rulemaking, FCC looks to implement Local Community Radio Act, open LPFM window, and complete processing of long-pending translator applications

It looks like the long-running stand-off between FM translator applicants and low power FM (LPFM) applicants may finally be heading toward some resolution. And from initial indications, it looks like the LPFMers are likely to get the first crack at available spectrum, based on a just-adopted Third Further Notice of Proposed Rulemaking (3rd FNPRM). (As of this writing, the full text of the 3rd FNPRM hasn’t been released; the Commission has issued a public notice describing it.)

The FCC’s action is, of course, an upshot of the enactment of the Local Community Radio Act (LCRA). The LCRA was Congress’s effort to help sort out the translator/LPFM problem which has been festering for years. 

The 3rd FNPRM invites comments on ways to increase the available opportunities for LPFM applications.  In particular, the proposed new rules would favor LPFM over FM translators in the top 150 markets by ensuring some LPFM spectrum availability before any new translators are authorized. Score one for LPFM. But on the translator side, the Commission is proposing not to re-impose its on-again-off-again limit of 10 translator applications per party -- at least not in areas where translator applications survive the new rules. (The Commission imposed a 10-application limit back in March, 2008, only to suspend it a month later.) Additionally, the freeze on the processing of translator applications would be lifted in “smaller markets and rural communities”, i.e., in places where there’s space for both new LPFMs and new translators.

To determine where translators might be allowed, the 3rd FNPRM contemplates an LPFM channel “floor” in the top 150 markets: unless a certain number of channels are available for LPFM in any specific market, no new FM translator applications would be accepted in that market, and any pending translator applications for that market would be dismissed.  Comments are invited on various important details, presumably including how the floor number might be determined, how a “market” should be defined, and whether existing LPFM stations – or only channel availability for new stations – will be counted in determining whether the floor test has been met.

The Commission intends to open a window for new LPFM applications once the availability of spectrum has been established through the market-floor process. That could be the final window for either LPFMs or FM translators if, as anticipated, applications filed during the window completely exhaust the available spectrum.  The filing window won’t likely open until comments and reply comments in response to the 3rd FNPRM have been submitted and the Commission has released a report and order adopting new rules. 

While that process would ordinarily be expected to take a year or more, Chairman Genachowski expressed hope that the LPFM window could be opened in the summer of 2012.  That schedule is optimistic in any event – even more so in view of the fact that, in addition to the various questions posed in the 3rd FNPRM, the Commission will also have to resolve, in a separate proceeding, a number of other issues necessary for the implementation of provisions of the LCRA. And let’s not forget about the possibility of appeals that might interfere with (or at least discourage) the immediate implementation of any new rules that might be adopted within the next year or so.

Other to-be-resolved questions include: how the Commission plans to address the issue of second-adjacent channel protection for full-power stations, and the related issue of how LPFM applicants may use signal contour plotting (as opposed to fixed mileage separations) to demonstrate that they won’t cause interference. Once such issues have been ironed out, we should all have a better fix on precisely how many channels may be open for filing in the LPFM window (and, thus, about how many applications might be expected).

Processing of long-pending FM translator applications is expected to resume in rural areas and larger communities where the LPFM channel floor is met – but, again, that won’t happen in larger communities until the conclusion of the just-started rulemaking, at the earliest, and it will be tricky even in rural communities while open questions remain about how much spectrum will be reserved for LPFM.

The NPRM also includes proposed limitations on the sale of FM translator licenses. The FCC apparently believes that many FM translator applications were filed by speculators whose primary objective is to sell rather than to operate stations. Whether the FCC will require construction and operation for a minimum period of time or simply restrict sales as it does for LPFM stations remains to be seen. The Commission presumably hopes that it can discourage many such speculators into simply walking away from their applications.

The NPRM would also open up more translators for potential use by AM radio stations.  The present rule allows the rebroadcast of an AM station on an FM translator only if the translator’s underlying permit (or license) was issued prior to May 1, 2009. The Commission invites comment on whether to eliminate that restriction and allow AM stations to use any translator for which an application was filed in the 2003 window, no matter when granted. 

Since there remain a significant number of pending translator applications which might still be granted, the elimination of that restriction would obviously expand the universe of translators available to AM primary stations. Of course, since it’s reasonably certain that many FM translator applications will be dismissed to preserve room for LPFM stations in the top 150 markets, that expansion might be limited to very rural areas. And, since no new translator window is expected until after the next LPFM window – and, as noted, it’s entirely possible that there will be no further new windows for either LPFM or translators if the next LPFM window sucks up all the spectrum – it is extremely unlikely that AM licensees will have an opportunity to file for new translators of their own.

Outage Reports On the Horizon for Interconnected VoIP Providers?

Proposed extension of outage reporting requirements beyond traditional wireline and wireless providers underscores increasing significance of VoIP and Internet providers.

When communications systems go down, bad things can happen. Network system outages – be they wireless, wireline, satellite or cable – are more than an inconvenience. Those systems provide a vital link between consumers and the public safety services they depend on, particularly in emergencies.  Largely because of that, the Commission has, for nearly 20 years, sought to stay informed about network system outages. Starting with wireline carriers (in 1992) and expanding to include wireless, satellite and cable folks 12 years later, the Commission has required carriers to report network outages that reach certain levels of seriousness. According to the Commission, these reports permit the Commission to “address communication system vulnerabilities and help prevent future outages.” (The reporting requirements are set out in Part 4 of the FCC’s rules.)

As a further indication of the increasing significance of VoIP on the communications landscape -- and, consequently, VoIP's increased potential exposure to regulation -- the Commission has issued a Notice of Proposed Rulemaking (NPRM) which would extend its Part 4 outage reporting requirements to interconnected VoIP and broadband Internet access service providers (including Internet backbone network providers). The Part 4 rules require providers to report outages or serious degradations that last 30 minutes or longer and meet certain other thresholds (such as number of calling minutes affected).

The FCC sees this move as necessary because of the increasing number of people who depend on VoIP for all voice service, including 911 calls.  According to the Commission, market forces and network design have not been enough to ensure network reliability or prevent significant outages.  Rather, the Commission figures that intervention by the Commission itself affords the most effective means of reducing outages – and mandatory outage reporting gives it essential information in that mission.

To support this theory, the Commission offers the following: “[T]he frequency of wireline outages, which had spiked in 2008, has dramatically decreased since the issue was identified through the Commission’s ongoing, systematic analyses of monthly wireline outages.” That observation, while arguably true, is not necessarily persuasive. The wireline reporting rule, after all, has been in effect since 1992 – so it’s not clear how a spike in outages in 2008 and subsequent decrease can be said to demonstrate the rule’s effectiveness.   Likewise, the Commission’s claim that, in 2010, Commission staff finally discerned that outages were being caused by a relatively small number of factors – each of which could be addressed by applying a known best practice – suggests that the FCC may have fallen victim to the correlation/causation fallacy. (Wiki refers to that as “cum hoc ergo propter hoc”, which may thrill Latin scholars everywhere – but we prefer the XKCD illustration of the same phenomenon.)

While the NPRM seeks input on many particulars, the proposed new rules would essentially require both facilities-based and non-facilities-based VoIP providers, as well as broadband Internet access service providers, to report outages of at least 30 minutes or more that also meet certain other criteria. In keeping with the current rules, the FCC proposes to include degrees of degradation based on latency, jitter, and the like in the definition of “outage.” Timing would track the existing rules: a first report within 120 minutes of discovering the outage, with follow-up reports at 72 hours and 30 days. Reports are to be made electronically, through the Commission’s “Network Outage Reporting System” (NORS).

Commissioner McDowell concurred with the NPRM generally, even though he disagreed with his colleagues on the fundamental issue of whether the Commission has authority to do what it’s trying to do. In McDowell’s view, the FCC simply doesn’t have the authority to impose outage reporting rules on broadband Internet service providers. The majority, on the other hand, point to the FCC’s direct statutory authority to “protect and promote the availability of 9-1-1 services for customers of interconnected VoIP service,” noting that unless the FCC can guarantee the reliability of the underlying networks carrying VoIP service, it cannot fulfill its statutory mandate of ensuring that VoIP 911 calls will get through.   Despite his misgivings on this issue, McDowell was willing to open the question up for discussion, which is all the NPRM does at this point. Whether the ensuing discussion will persuade him that Congressional authority really is there remains to be seen.

Comments are due by August 8, 2011 and reply comments are due by October 7, 2011.

Update: Comment Deadlines Re Radar Rule Relaxation Set

Last month we reported on a Notice of Proposed Rulemaking looking (among other things) to ease power limits for vehicle-borne radar units – you know, the kind of gear designed to improve traffic safety by sensing nearby objects (like stopped cars ahead or traffic in your blind spot). The NPRM has now been published in the Federal Register, which establishes the deadlines for comments. The deadlines: comments are due by July 18, 2011; reply comments are due by August 1

Update: Comment Deadlines Set In Wireless Signal Booster Rulemaking

A couple of weeks ago we reported on an Notice of Proposed Rulemaking (NPRM) proposing to allow consumers to purchase and use boosters to improve their wireless reception.  The NPRM has now been published in the Federal Register, which sets the deadlines for comments on the proposals. Comments are due on June 24, 2011, and reply comments on July 25, 2011.

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.

FCC Proposes To Give Cell Phones A Boost

Unlicensed boosters could improve reception but could also increase interference

When you’re trying to make a cell phone call, have you ever been thwarted by those pesky laws of physics? You know, those ones that cause signals to fade at long distances from base stations or impede signals in tunnels, buildings or dense foliage. If so, the FCC thinks it may have an answer to your problems – wireless consumer signal boosters. While signal boosters have been an option for certain FCC wireless licensees for a while, the FCC recently issued a Notice of Proposed Rulemaking (NPRM) kicking off a proceeding designed to allow individual consumers to purchase and use such boosters. 

The NPRM was released both in response to a number of petitions filed by private parties and as part of the Commission’s overarching effort to deploy wireless and broadband services. In it, the Commission recognizes not only the potential value in signal boosters, but also the significant potential for interference created by poorly designed or installed boosters. To attempt to ensure that boosters are deployed effectively and safely, the Commission proposes to impose requirements on the manufacture and marketing of boosters themselves, rather than adopting a licensing regime for their use. The NPRM seeks comment generally on this approach, as well as on a number of more discrete issues.

The type of wireless signal booster contemplated by the NPRM is essentially a system consisting of an inside antenna paired with an amplifier and an outside antenna. The inside antenna communicates with the user’s cell phone or other wireless device and the outside antenna with a wireless service provider’s base station, with the amplifier boosting the signal to improve the connection.  Such boosters could be designed for either fixed use, such as in a building or tunnel, or mobile use, such as in a car. The NPRM notes that such devices would be particularly useful in rural areas where wireless coverage gaps exist, and in other difficult-to-serve indoor areas. Signal boosters could also provide public safety benefits by allowing users to connect to 911 and emergency services where their wireless signals would otherwise be blocked (e.g., tunnels, garages, inside buildings). 

While the benefit of wireless signal boosters seems clear, their use also creates a number of potential problems. The FCC identified five primary issues in the NPRM, four of them involving different types of interference. Those four types of interference are:

  • “Near-far” interference. This type of interference arises when a signal booster is closer to a base station on an adjacent channel than to the base station with which it is attempting to communicate. In some applications, particular mobile, an improperly designed booster may amplify and interfere with communications on that adjacent channel.
  • Oscillation. This arises when the booster’s signal level remains elevated as it approaches the base station with which it is communicating, creating an effect similar to that of moving a microphone too close to a speaker.
  • Base station overload. This affects base stations that use dynamic power control to maximize performance by adjusting the power of both the base station and the handsets with which they are communicating. Boosters which are not dynamically controlled by the base station may continue to provide amplification when it is not necessary, interfering with the base station’s efficient operation and potentially causing an overload.
  • 800 MHz spectrum interference. This arises in the 800 MHZ spectrum band, where channels used commercially, primarily by Sprint Nextel, are interleaved with public safety channels. Unless there is proper coordination between the two, use of a wideband signal booster by either type of user may overload base stations operating on the adjacent channels, causing dropped calls and reduced network capacity. 

The fifth booster-related problem identified in the NPRM is not an interference problem, but a distortion of network-based E- 911 systems. These systems determine the location of handsets used to call 911 by measuring the time it takes for the handsets signal to reach units installed at the operators’ base stations. If the handsets signals are amplified by a signal booster, this may lead to inaccurate location estimates. 

The Commission in the NPRM discusses some “real-world” examples of these problems identified by Verizon, AT&T, and other operators, noting that the interference issues can have wide-ranging effects, sometimes entirely disabling a base station. According to the NPRM, operators claim that it is often extremely difficult to identify a specific signal booster as the source of these problems, particularly where the signal booster may be used in a mobile setting. 

Despite these issues, the Commission believes that there is a genuine need for “well-designed” signal boosters. It therefore proposes a regulatory regime which will allow for their use while avoiding the various harms they may cause. The Commission’s proposal is to regulate consumer signal boosters through a “license by rule” regime. Under such a regime, no individual licenses are issued for consumer signal boosters; rather, rules are adopted setting the technical parameters such boosters must satisfy before being marketed or sold. The NPRM generally seeks comment on whether this type of regulation is appropriate for signal boosters. Assuming this is the appropriate means by which to regulate boosters, the NPRM provides the broad outlines of its proposed technical requirements, seeking further comment on the appropriateness of these requirements. 

First, the NPRM proposes requiring all signal boosters operated in a given band to satisfy the existing technical requirements (e.g., power, out-of-band emissions) for mobile units (not base stations) operating in that band. The NPRM also proposes requiring signal boosters to be designed to “self-monitor” to ensure their compliance with these rules and to automatically shut down if they detect any non-compliance. Similarly, boosters would be required to automatically shut-down if they were to detect any feedback or oscillation. The NPRM requests comment on:  the effectiveness of such a requirement; the appropriate specific triggers for shut-down; and whether a booster’s power should be measured by effective radiated power (ERP) or transmitter output power.

The NPRM proposes to ensure compliance with radiofrequency (RF) exposure limits through existing procedures, requiring all applications for equipment authorization for signal boosters to demonstrate compliance with the RF exposure limits applicable to the device’s intended use. As with existing devices, the NPRM proposes requiring labeling and clear instructions for end users regarding appropriate use and installation of signal boosters. 

In addition to labeling related to potential RF exposure, the NPRM proposes requiring labeling regarding the responsibility of the signal booster owner and installer to ensure that the booster does not cause interference and, for fixed boosters, to coordinate the booster’s installation and use with the appropriate local wireless carrier. The NPRM proposes that for fixed boosters, this label include reference to an FCC website where licensee information will be available (www.fcc.gov/signalboosters – as of this writing, this site is not active). 

The NPRM further proposes requiring the operator of any signal booster to immediately cease operations if the booster is causing harmful interference. The NPRM also seeks comment on whether and how signal boosters should be regulated to prevent interference between and among boosters themselves. 

In addition to the above proposals, which would apply to all signal boosters, the NPRM proposes additional requirements that would apply only to fixed or mobile boosters. The NPRM would require that all fixed signal boosters coordinate frequency selection and power levels with local wireless carriers before use; it seeks comments on what specific coordination procedures should be required. The NPRM specifically asks how, under any coordination procedure, to ensure that the wireless carrier responds to any coordination requests in a timely manner. 

The Commission recognizes that for mobile signal boosters, the type of advance coordination appropriate for fixed boosters may be impossible. Rather than requiring such coordination, the NRPM proposes requiring mobile boosters to automatically reduce power as they approach the base station with which they are communicating; it also seeks further comment on how to address interference concerns, particularly the “near-far” interference issue identified above. 

The Commission also generally requests comment on any other issues related to signal boosters, in particular seeking input on whether, and if so how, it should require remote shut-off capability, location detection features, and activation of boosters by wireless carriers before use. Recognizing that signal boosters are already in use in many areas, the Commission requests comment on how to treat these existing boosters, suggesting that it may allow their use to continue, at least for some period of time, although it might require that they be registered. 

The Commission also notes that many wireless providers have expressed concerns that interfering boosters are often difficult to locate. Accordingly, the NRPM proposes setting up a national clearinghouse for registration of boosters and suggests including features in boosters that would prevent them from operating unless they were first registered in this clearinghouse.

Finally, the NPRM proposes some additional requirements that would apply only to non-consumer signal boosters operated by wireless licensees under Part 90 of the Commission’s Rules. Under Part 90, certain signal boosters have been allowed since 1996, generally for internal, non-public communications. The NPRM generally proposes to retain the existing rules for such Part 90 boosters, with certain modifications to prevent interference. Although narrower in application than the changes proposed in the rest of the NPRM, any parties who currently operate Part 90 boosters should review these proposals. 

Comments will be due to the FCC 45 days after the NPRM is published in the Federal Register, with reply comments due 30 days later. Check back here for updates on that front.

Update: Reply Comment Deadline Extended In TV Spectrum Re-Purposing Proceeding

If you’ve been planning on filing reply comments in response to the FCC’s TV spectrum re-purposing NPRM but you haven’t gotten around to it yet, you’re in luck! Everybody’s been given an extra week, thanks to an extension that pushes the reply comment deadline to next Friday, April 25. The extension comes at the request of several broadcasters and state broadcast associations concerned that the original reply comment deadline fell immediately after the close of the NAB convention in Las Vegas. 

Spectrum auctions and repacking were among the biggest items on the convention agenda for all concerned – FCC staff, Commissioners and industry alike. As a result of that opportunity to share information and insights, many interested parties are now in a better position to formulate reply comments that can contribute significantly to the Commission’s on-going consideration of the complicated issues on the table.

The last chance to say your piece (at least at this stage of the proceeding) is now fast approaching.

The spectrum re-purposing NPRM, released last November, was the opening barrage in the FCC’s campaign for full implementation of the National Broadband Plan – a plan which calls for the “repurposing” of 120 MHz of prime spectrum real estate from television broadcasters to wireless broadband providers.  Among other things, the FCC is proposing to: (a) loosen service rules to permit wireless uses of broadcast spectrum on a co-primary basis with television stations; (b) establish a framework for two or more television stations to share a single six-megahertz channel; and (c) explore opportunities to increase the viability and attractiveness of VHF channels to folks might move on down the band. The FCC claims these steps are necessary to increase the efficient use of the TV spectrum (both UHF and VHF) and facilitate ongoing wireless innovation.

In their initial comments, as might be expected, many wireless providers and wireless equipment manufacturers have heartily agreed with the Commission’s plans. (They even hosted a pow-wow with FCC staffers at CTIA’s headquarters.) 

Broadcasters, on the other hand, have been less receptive to the FCC's ideas. They have questioned whether the incentive auction would truly be voluntary and expressed concern over the potential impact of repacking on a wide range of factors (e.g., service contours, availability of minority-focused programming, ownership limits, disruption of nascent mobile TV services).

Other commenters have urged the FCC to look beyond a strictly auction scenario. Perhaps, for one example, stations could be allowed to use their spectrum flexibly, providing both wireless broadband and over-the-air TV.  Or maybe broadcasters could be permitted to negotiate directly with broadband providers to lease/sell portions of their spectrum.   

If you have an interest in the outcome of this proceeding – and, frankly, who doesn’t? – you should take this opportunity to join the debate. Check out the comments that have been filed thus far in the docket and then take the time to let the FCC know your thoughts. Again, the reply comment deadline has been extended to that anyone looking to participate may submit their reply comments electronically by 11:59 p.m. on April 25, 2011.  If you have any questions about this or would like any help, feel free to let us know.

Update: New Comment Deadlines In VoIP/Accessibility Proceeding

On March 31 we reported on a couple of VoIP-related NPRMs, including one item looking toward making VoIP and similar services easily accessible to and usable by persons with disabilities.  Despite the fact that that NPRM proposes sweeping changes in the nature of VoIP obligations and even the scope of the FCC’s regulatory reach (which would be extended into considerable technical minutiae), the deadline for comments on the proposals was originally set for April 13. But now, at the request of a number of organizations, the Commission has extended the comment deadline to April 25, 2011, and the reply deadline to May 23, 2011. That’s still not a lot of time, but it does provide some breathing room.

Update: Comment Deadlines Set In VoIP/TRS Contributions Rulemaking

Last week we posted about an NPRM proposing to expand the requirement that VoIP providers contribute to the Telecommunications Relay Service (TRS) Fund.  The requirement, already applicable to connected VoIP operators, would be broadened to include non-VoIP as well. See the original post for details.

The NPRM has now been published in the Federal Register, which sets the deadlines for comments on the proposals. Comments are due on May 4, 2011, and reply comments on May 19, 2011. And if you feel like commenting on the “information collection” aspects of the proposal (as you are entitled to do, thanks to the Paperwork Reduction Act), you’ve got until June 3, 2011, to do so.

For VoIP Providers: Warning - Steep (Regulatory) Incline Ahead

More burdens just up the road, thanks to two Congressionally-ordered NPRMs

The FCC’s release of two Notices of Proposed Rulemaking (NPRMs) on March 3 will give VoIP providers a familiar sinking feeling – that is, the feeling of sinking ever deeper into the quicksand of FCC regulation.   At Congress’s direction, the FCC is looking both to expand TRS contribution obligations and to impose additional accessibility rules on all VoIP providers. As we describe below, the new accessibility standard for VoIP (as well as email and video conferencing) will be even higher than that already imposed on most telecommunications services.

The NPRMs (along with the video description NPRM about which we’ve already reported) are some of the first regulatory offspring of the 21st Century Communications and Video Accessibility Act of 2010 (CVAA). Because the CVAA is clear in its mandate, the Commission has little choice with respect to the major points on the table – but it does have discretion relative to a number of the ancillary and administrative aspects. (And, given the scope of CVAA’s ambition to modernize the nation’s accessibility laws, we expect more NPRMs to follow in the months to come.)

TRS contributions.  Section 103(b) of the CVAA requires that all VoIP providers contribute to the Telecommunications Relay Service (TRS) Fund.  (The TRS Fund supports services that allow deaf people or people with speech disabilities to communicate by phone.)  Of course, interconnected VoIP providers are already contributing (as our readers should be aware).  One of the two NPRMs addresses the Section 103(b) mandate by proposing to expand that requirement to non-interconnected VoIP providers, that is, VoIP that doesn’t interconnect with the regular telephone network.  We’re looking at you, Skype et al.

While the CVAA requires all VoIP providers to contribute to TRS, it leaves the FCC some discretion as to details. Accordingly, the Commission asks for comment on specific issues such as:

  • Should the VoIP safe harbor apply to non-interconnected VoIP? (The “safe harbor” allows carriers to report a specified fixed percentage of revenue as interstate if they are unable or unwilling to measure interstate and intrastate traffic separately.)
  • What revenues should be included in calculating TRS contributions (just revenues from interstate end-user calls, or revenues from all sources?)
  • Should providers of free services, that have no end-user revenues, be required to make any contributions to the TRS fund?

Clearly the FCC is focused on how to treat free, non-interconnected Internet voice services (again, that’s Skype-to-Skype et al.). Some such services are supported by advertising, and the FCC suggests that it might require TRS contributions based on those revenues, in place of or in addition to subscriber revenues. The answers to these questions will significantly affect contribution amounts; affected companies will want to express their viewpoints when the docket is open for comments. 

Accessibility. As required by Section 104 of the CVAA, the FCC proposes to make VoIP, electronic messaging (emails, IMs, etc), and video conferencing “accessible to and usable by” persons with disabilities. Naturally, a new rule needs a new acronym – we must learn to call these types of services “advanced communications services” (ACS).

ACS will be subject to a higher standard of achievement than “telecommunications services” under the existing Section 255 of the Communications Act. Section 255 requires telecommunications manufacturers and providers (including interconnected VoIP but not including non-interconnected VoIP) to provide accessibility if readily achievable. For ACS manufacturers and providers, on the other hand, the presumption is reversed; they must make their services and products accessible to people with disabilities, unless it is not achievable to do so. (According to the CVAA, “achievable” means “with reasonable effort or expense, as determined by the Commission” taking into account a list of certain factors.)

Further, ACS providers may not install network features, functions, or capabilities that impede accessibility or usability. Finally, all equipment and networks used to provide ACS services must allow information content that has already been made accessible to pass through in accessible form. The NPRM seeks comment on definitions of relevant terms (e.g., what is “achievable”?) as well as input regarding matters such as:

  • the standards that would apply to requests for waivers for equipment designed for non-ACS purposes but having incidental ACS capability
  • whether any exemption(s) for small entities might be warranted
  • obligations for applications or services accessed over service provider networks rather than based on user hardware features
  • recordkeeping and enforcement 

Mobile web access. The ACS NPRM also gets a head start on assuring that Internet browsers built into mobile phones will be accessible to those with visual impairments. As with ACS services, mobile Internet browsers must be “accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable.” The statutory requirements do not take effect for three years, but the FCC seeks input now on how best to get everyone up to speed before then.

Some ramp-up time may be needed, because ACS and browser accessibility raise practical difficulties. Accessibility functions will work only if they are supported by each component or layer of the device: i.e.,the hardware, the operating system, the user interface, the application, and the network. This practical reality has at least two major consequences: (1) a broad array of entities will be affected, some of whom may not have previously fallen under FCC jurisdiction and may not be habituated to regulatory compliance matters; and (2) various entities will have to cooperate with each other on technical standards, without much market motivation to do so.

So the FCC will have to get in the business of compelling information-sharing: mandating industry standards, setting up industry forums and working groups, and so on. Yes, even Apple may have to share information about iPhone design, which is certainly not their custom. This process inevitably raises hard questions. For example: Who will develop and enforce compatibility standards? What is the appropriate balance between the necessary sharing and protecting proprietary, confidential technical information? Will components have to be compatible only with existing fellow components, or also with potential future components? At what stage of development should accessibility be considered?

The FCC has tackled tough inter-industry compatibility issues before, with some success. Doing so in this case, however, will certainly require the agency to delve into technical minutiae generally outside its usual expertise (such as software). It will also require constant calibration to keep things running smoothly in the future.

The bottom line here is that Congress, through the CVAA, is determined to impose new and substantial burdens on VoIP providers in order to ensure technological access for people who are deaf, blind or subject to other disabilities or impairments. That means that the FCC has little discretion going forward with these two NPRMs, at least with respect to the Big Picture aspects. Congress did, however, give the Commission some leeway in working out the operational details, and it’s there that affected parties (including, particularly, VoIP providers) may have their best chance to ease the ultimate burden. Given that, VoIP providers should give serious thought to submitting helpful comments in these proceedings.

Update: OET Issues Erratum To Experimental Licensing Overhaul NPRM

 Last December we reported on a Notice of Proposed Rulemaking (NPRM) in which the Commission proposed to overhaul the experimental licensing rules. The deadline for comments on the various proposals has come and gone (it was March 10), but you still have time to file reply comments, which are due by April 11. Be careful, though. The Office of Engineering and Technology has just released an Erratum to its NPRM advising that one of the two docket numbers listed in the caption of the NPRM was wrong. According to the text of the Erratum, the second of the two numbers should read “ET Docket No. 06-155”

This information may be important to anyone planning to file reply comments: having the correct docket number in the caption should help to get the filing into the proper bureaucratic pigeonhole in the FCC’s filing system.

Of course, this doesn’t help folks who filed comments using, presumably, the incorrect docket number – although there’s a reasonable chance that, if they used the correct lead docket number (that would be ET Docket No. 10-236), there shouldn’t be any problem.

Now that the Commission has spread the word to the public about the mistaken docket number, it might also want to do the same internally. The caption of the Erratum still includes the incorrect number.

Comment Dates Set In Proposed Overhaul Of Experimental Licensing

A couple of months ago we reported on a Notice of Proposed Rulemaking (NPRM) which could lead to dramatic changes in the experimental licensing processes. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments relative to the NPRM.  Comments are due by March 10, 2011, and reply comments by April 11, 2011.

Comment Deadlines Set In TV Spectrum Re-Purposing Proceeding

Back in early December we reported on the release of the Notice of Proposed Rulemaking (NPRM) which kicked off the long-anticipated push to free up prime blocks of TV spectrum for broadband use. The NPRM has now been published in the Federal Register, which sets the comment and reply comment deadlines. Comments are currently due by March 18, 2011, and reply comments are due by April 18, 2011. Needless to say, this is a proceeding of major league significance to a wide array of current and potential spectrum users. Attention most certainly should be paid.

Comment Deadlines Set In TIS Overhaul Proceeding

A couple of weeks ago we reported on an Order and Notice of Proposed Rulemaking (NPRM) which could lead to a re-shaping of the Travelers Information Service. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments relative to the NPRM. Comments are due by February 18, 2011, and reply comments by March 7, 2011.

Travelers Information Service Expansion Under Consideration

Longstanding limits on content, facilities under scrutiny in wide-ranging NPRM

If you (like most of your fellow citizens) spend much time on the highways and by-ways of our great country – or if you have an interest (commercial or otherwise) in reaching folks on those same highways and by-ways – listen up. The Commission has launched a rulemaking to explore possible changes in the Travelers Information Service (TIS), the AM-based low-power service that provides a constant diet of, um, travelers information along highways and near various travel-based locations. At the request of several associations of government officials and TIS operators, the FCC has issued an Order and Notice of Proposed Rulemaking (NPRM) to consider whether TIS stations should be permitted to air a greater range of information at greater power in a greater variety of locations. The range of possible changes includes, at one extreme, a substantial redefinition of the service itself.

The TIS has been around since 1977. TIS stations operate in the AM band, as a primary service on 530 kHz and on a secondary basis on 535-1705 kHz. With maximum power of 50 watts, they are low-power operations designed to reach a narrow audience of travelers passing in the immediate vicinity of each station. The content of their transmissions is limited to “noncommercial voice information” about traffic (including road conditions, hazards, advisories, directions), nearby options for lodging, rest stops and service stations, and descriptions of local points of interest. The strict limitations on the service were imposed out of concern about possible interference and competition with commercial broadcasters.

Citing broad changes that have occurred in the country in the three decades since TIS began, the petitioning associations of government officials and TIS operators suggest that the Commission:

  • re-name the TIS as the “Local Government Radio Service”;
  • eliminate certain site and power limitations; and
  • expand the permissible content of TIS messages to include, among other things, alerts concerning the safety of life or protection of property, such as NOAA weather radio transmissions, AMBER alerts and other civil defense announcements.

The key question posed by the NPRM is: “Should the Commission significantly expand the scope of permitted communications by local governments on TIS stations, or should it adopt more limited changes that are consistent with the traditional traveler-related focus of TIS?” In other words, does TIS get a comprehensive, possibly mission-changing overhaul, or should it just be tweaked here and there to preserve its “traditional” focus?

The proceeding started back in 2008, with a petition by Highway Information Systems, Inc., proposing sweeping changes to the TIS. Two months later, the American Association of Information Radio Operators (AAIRO, represented by Fletcher Heald) took a more measured approach: it asked the Commission simply to confirm that the permissible content of TIS stations includes “any message concerning the safety of life or protection of property that may affect any traveler or any individual in transit or soon to be in transit” – a reasonable interpretation of the notion of “travelers information”.

But other groups followed up with their own separate, and broader, suggestions. Declining to simply provide the confirmation that AAIRO had asked for in the first place, the Commission now asks whether the permissible content of TIS stations should be expanded to include such matters as NOAA Weather Radio retransmissions, AMBER Alerts, terror threat alert levels, civil defense announcements and the like. (How limited is the FCC’s view of existing content limitations? In 2007, the Enforcement Bureau issued a Notice of Violation to the City of Santa Monica for retransmitting NOAA weather broadcasts.)

Other questions up for discussion: If such expansion is permitted, what limits should be imposed? For example, should only non-routine NOAA reports be permitted, or could routine reports be included as well? Would the proposed changes adversely affect commercial broadcasting, as NAB maintains? One proponent goes so far as to suggest that TIS stations be permitted to “any information of a noncommercial nature”. Another emphasizes the possible use of TIS for general emergency-readiness information along with announcements about local history, environment and parks.

With respect to the technical aspects of TIS, the Commission is considering a variety of proposals advanced by the petitioners. Should TIS stations be untethered from their current geographical anchors (i.e., roads, highways, public transportation terminals, etc.) and allowed to be located pretty much anywhere? One prominent engineering firm has objected to that proposal, citing its potential adverse effect on nighttime interference in the medium wave AM band. With that in mind, the Commission seeks comments on whether and to what extent interference problems could arise and, if so, how they should be addressed.

Along the same lines, should TIS stations be given greater potential power to expand their service areas? One possible rationale for a power increase:  because of higher speed limits since 1977, vehicles are within TIS service areas for shorter durations, thus allowing only 90 seconds for transmission including station ID.

The Commission also addresses a proposal to allow networks or “ribbons” of TIS stations along a highway. It asks about the nature of the system proposed and how it would operate. On the one hand, such systems could be useful in, for instance, directing evacuation efforts along certain routes; on the other, they might attract travelers away from commercial stations with superfluous or redundant information.

The potentially far-reaching nature of the changes under consideration is revealed in the seemingly simple proposal to change the name of the service from the “Travelers Information Service” to the “Local Government Radio Service” (or some variant along those lines). While some might invoke Shakespeare to suggest that a mere name change would have little effect, the proposed change here reflects the fundamentally different view of the service envisioned by some of the petitioners. After all, a “travelers information service” by definition provides information to travelers. A “local government radio service”, on the other hand, would appear to re-focus the goal of the service away from its intended beneficiaries (i.e., travelers) and toward its operators (i.e., local governments). While local governments might still be inclined to provide travelers information, they might also be inclined to expand the content far beyond that traditional limitation.

The Commission does not appear to have developed strong preferences on any of these issues yet, so if you’re inclined to drive into the TIS debate, now’s your chance. Comments will be due 30 days after (and reply comments 45 days after) the NPRM is published in the Federal Register. Check back here for updates on that front. 

Meantime, be safe out there.

FCC Sets Out To Overhaul Experimental Licensing

New kinds of licensing promise innovators easy access to nearly all of the radio spectrum.

The FCC has always been friendly to experimenters, whether they are basement hobbyists or industrial researchers. Since 1934 the Communications Act has enjoined the FCC to “[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio . . . .” Just as important, many of the engineers at the FCC who began as teenage hams and tinkerers are eager to encourage the next generation. The FCC imposes only minimal regulation on amateur radio equipment, allows DIYers to design and operate home-brew transmitters with hardly any regulation at all, and offers “experimental licensing” so researchers and commercial innovators can test out new devices.

Nonetheless, while the pace of innovation accelerates, the rules on experimental licensing have stagnated. They require, among other things, separate FCC approval for each individual project. Ironically, considering their purpose, the rules are highly hospitable to minor variations on established uses of radio, while experimental licenses for more creative technologies can be hard to obtain. The FCC staff who do this work are technically capable and usually sympathetic to the applicants, but they are bound by the rules on the books.

In a burst of candor that may surprise equipment manufacturers and scientists, the FCC now concedes that the process for issuing these licenses can be a “roadblock to innovation.”  With this new self-awareness comes a comprehensive Notice of Proposed Rulemaking (NPRM) on experimental licensing rules so the FCC can (in its own words) “inspire researchers to dream, discover, and deliver” innovations to promote “a better way of life for all Americans.” The path to this Norman Rockwell ideal entails both updating the current rules and creating new licensing arrangements for research and development.

Few would dispute that the current system has become an obstacle. The various regulations for experimental and developmental licenses are scattered haphazardly through eight different rule sections. But the biggest problem facing development efforts, whether corporate, educational, medical, or scientific, is the need for project-by-project approval. The process is not only slow, but uncertain as to the outcome. And all the more so, as the technology at issue departs from current practice.

To address these problems, the NPRM lays out six kinds of rule changes.

First, a new licensing scheme would allow universities and non-profit research facilities to conduct testing and experiments on almost all frequencies, without separate approval for each project. Special requirements would help to protect cell phone, 3G, 4G, and broadcast frequencies. Operation would be restricted to the licensee’s campus, with emissions limited at the campus boundaries. Licensees would have to register their operations seven days in advance on a publicly accessible FCC website, through which spectrum incumbents can raise concerns of harmful interference. The FCC invites comment on a great many specifics.

Second, the FCC would establish “Innovation Zones” – geographic areas, possibly away from population centers – within which multiple innovators would have flexibility to experiment without separate project approvals. Licensees would need technical credentials, but would not be limited to universities and non-profit facilities. A landlord-licensee might invite companies and entrepreneurs to the facility to conduct research and development. As above, the public would have seven days’ prior notice of operations. The FCC again leaves a lot of details open for discussion.

Third, the FCC would establish a new licensing program specifically for institutions conducting research into medical applications, under rules otherwise similar to those above. Questions here center on the institutions that would qualify, the kinds of applications that could be investigated, and the appropriate reporting requirements.

Fourth, the FCC would consolidate and clarify a confusing collection of rules that now govern in-the-field testing and market studies for new devices. The revision would, among other changes, allow a manufacturer to sell not-yet-certified devices to a service provider, which in turn could lease (but not sell) them to consumers wanting to try them out. Manufacturers could sell uncertified devices to developers and system integrators as evaluation kits. The FCC would ease the caps on the numbers of uncertified devices that can be imported for testing and evaluation.

Fifth, the FCC would consolidate and streamline the existing rules on experimental licensing. The presently separate category for developmental licenses, little used, would be folded into the experimental licensing regime.

Sixth, the FCC makes proposals relating to specific situations such as anechoic chambers, Faraday cages, and open area test sites.

The proposed rules, which run to 37 pages, will affect just about every current and prospective user of the spectrum. The FCC should expect vigorous and conflicting comments. We foresee a major divide between entities committed to innovation, which will want greater flexibility, and spectrum incumbents, who will each demand greater protection for their own particular operations.

In the first three categories above, the FCC proposes to allow licensees to use any frequencies except those few marked as “restricted” in the FCC rules. (Restricted bands correspond to certain services that use especially sensitive receivers, such as GPS, satellite downlinks, and radio astronomy bands.) Even though most frequencies above 38.6 GHz are restricted by default (a few have been exempted), most of these, too, would become available to experimental licensees. Expect large numbers of incumbents in non-restricted bands to push back, each arguing that the importance of its service entitles it to greater protection.

Comments and reply comments are due 30 and 60 days, respectively, after the NPRM appears in the Federal Register. Watch this space for updates.

TV Spectrum Re-Purposing Out For Comment

Proposed changes would pave the way for broadband occupation of TV bands

That muffled sound you might have heard on November 30 was the opening barrage in the long-anticipated struggle to revamp the TV spectrum. More than a mere warning shot but still well short of a coup de grâce, the FCC’s Notice of Proposed Rulemaking (NPRM) is certain to shake the foundation of the television industry – an industry which is still re-building itself in the wake of the DTV Transition tsunami that crested in 2009.

The FCC’s goal in the NPRM is to “lay important groundwork” (in Chairman Genachowski’s words) toward the ultimate goal of permitting fixed and mobile broadband use in the TV band. Such use is thought by the Commission to be necessary to deal with the all-but-certain “spectrum crunch” which is expected to result from burgeoning mobile broadband demands. 

The FCC’s ultimate game plan appears to include coaxing existing TV broadcast licensees off their current channels in order to free up blocks of prime spectrum which would then be auctioned off for broadband use. While the Commission does not have the authority to “incentivize” broadcasters through, e.g., the sharing of the proceeds from such auctions, a couple of bills pending in Congress would provide such authority. The NPRM is intended to put the Commission in a position to move as quickly as possible toward effective spectrum repurposing if and when Congress gives it the power to share auction proceeds with displaced broadcasters.

The NPRM proposes three significant changes to the FCC’s rules.

First, the Commission is proposing to include fixed and mobile wireless services as potential uses in the VHF and UHF spectrum blocks currently reserved primarily for television. This involves a simple amendment to the Table of Frequency Allocations (the Table), which can be found at 47 C.F.R. §2.106. The Table is the official master list of authorized uses of the spectrum. Spread over more than 40 pages of the FCC rule book, it consists of a chart reflecting (a) all of the blocks into which the radio spectrum has been divided and (b) the specific permitted uses for each of those blocks. The Commission is proposing to include “Fixed" and "Mobile” as additional uses for the spectrum currently assigned for television services. 

This change by itself would not mean that broadband uses would automatically flood that spectrum. Rather, it would mean that the Commission could authorize such uses in that spectrum. Of course, the conventional wisdom is that the FCC will authorize such uses once it gets the rest of its ducks in a row. In order to facilitate that eventual process, the Commission is proposing to take this initial reallocation step now.

Second, the Commission is proposing rule changes to permit two television licensees in the same market to “share” one of their 6 MHz channels, thereby freeing the second channel for broadband uses. (Under such a sharing arrangement, two stations would share a single transmitting facility – although each station would be separately licensed and, in principle, independent of the other.) Historically, each TV station has had a full 6 MHz channel to use. Analog operation generally consumed the entire 6 MHz for a single program service, but the advent of DTV service has allowed multiple program streams by a single station over a single 6 MHz channel. The Commission apparently views this arrangement as inefficient. If every station were willing to share channels, that would free up 50% of the spectrum currently devoted to television – leaving that freed-up spectrum available for broadband.

Such channel-sharing would entail a number of complexities, many of which are addressed in the NPRM. Most obviously, the rules would have to be revised to permit such sharing in the first place. But beyond that, channel-sharing raises a host of questions. For example, as envisioned by the Commission, the proposed channel-sharing approach would provide TV licensees who agree to share channels the same MVPD carriage rights they currently hold. Licensees who agree to share channels would not be removed from cable, satellite, or other MVPD systems (e.g., FIOS) for helping out the government. 

The Commission is also seeking comment on other nitty-gritty details of sharing: Should commercial and noncommercial stations be permitted to share common facilities? Should a potential for loss of service by stations seeking to share transmission facilities be considered in determining whether that sharing proposal should be permitted? Ironically, on this last point the Commission suggests that its policy for dealing with service loss is one of flexibility, with the Commission happy to consider “any counterbalancing factors” a licensee might advance. But it doesn’t take a particularly long memory to recall a completely different Commission approach during the DTV Transition, when the Commission routinely denied minor changes to DTV facilities where more than 1% of the population would lose service.

Finally, the Commission is proposing rules to “maximize” the usage of the VHF spectrum. During the DTV Transition, many concluded that the VHF spectrum was not as well-suited for DTV use as UHF. As a result, most full-power stations elected to move to the UHF band to ensure uniform coverage within their service areas. But the UHF spectrum is particularly good for broadband operation, which means that the Commission would now like to wrangle as many TV stations back into the VHF band as possible.

To make such a move more palatable, the Commission is proposing VHF power increases and other revisions to improve the performance of indoor antennas. The goal is to try to offset any disadvantages, perceived or real, in VHF operation. In particular, the Commission is seeking comment on the adoption of the baseline standards for indoor antennas based on the 2009 ANSI/CEA-2032 standard, which establishes testing and measurement procedures for indoor antennas. By taking these steps, the Commission would squeeze more television stations back into the VHF spectrum bands, and free up a larger contiguous block of spectrum adjacent to the 700 MHz A Block which was previously auctioned for wireless uses.

The deadlines for comments and reply comments on the Commission’s various proposals will not be set until the NPRM is published in the Federal Register. Comments will be due 45 days after publication, reply comments will be due 75 days after publication.  Check back here for updates.

While the NPRM clearly sets the stage for TV re-purposing, it’s only the first step in what will likely be a complicated and contentious process. After all, the re-packing of large numbers of TV operations into a tighter chunk of the spectrum will present thorny issues, including the development of a New And Improved DTV Table of Allotments. 

Here again the recent DTV Transition experience provides a glimpse of things to come. Back in the early days of the DTV Transition, the adoption of the first DTV Table of Allotments led to many a battle over which channel would be assigned to which station. Such struggles will likely be even more problematic in a repacking process because that process contemplates a reduced number of channels overall. With fewer options from which to pick, we can expect considerable competition for channels which may be perceived as somehow “better”. How the Commission plans to manage, and resolve, such competition is still a mystery. 

Another concern about repacking: Thousands of Low Power TV stations, Class A TV stations, and television translators are operating on channels not included on the current DTV Table of Allotments. They will face certain displacement during this repacking effort.  While some of these stations may be able to take advantage of the proposed channel-sharing rules, or perhaps participate in the incentive auction, the devil will be in the details.

One thing that sticks in this author’s craw is the suggestion – expressly advanced by Chairman Genachowski and Commission Copps – that the television industry has been sloth-like in taking advantage of the digital spectrum.  Genachowski laments that some stations are not “seizing the opportunity to offer multicast streams or mobile TV”. Copps says that he “would have little interest” in a repacking process if only TV spectrum had been put to “positive use” through the provision of “public interest multi-casting”. 

Such perceptions conveniently miss several important points. 

First, the DTV Transition is still relatively recent. The transition required the acquisition of billions of dollars of new equipment by broadcasters, who also took extensive steps to educate the public on the new technology. They universally accepted, and rose to, that challenge. 

But to create a second or third program stream, a broadcaster has to create, in effect, a second or third station. To be sure, the transmission plant is already in place, but what about the studios, production facilities, staff – and advertising support – for the new program streams? These do not come pre-packaged, available for instant deployment. Quality programming requires extraordinary effort under any circumstance. That is even more the case here, where the new multi-cast streams would not be based on existing network fare (since most network programming is already committed and, thus, often not available for such additional streams).

Additionally, the development of such additional programming is expensive. Let’s not forget that the recession which has plagued the U.S. economy got its start in 2007 and hit hard in 2008, mere months before the government-mandated DTV Transition.

And if you’re talking about supposedly inefficient use of spectrum, what about the fact that other portions of the wireless spectrum for new wireless broadband services (700 MHz D block, for one) lay unused. The current state of multi-cast broadcast television may not meet the halcyon expectations of Copps, Genachowski and others, but at least the television industry built out a nationwide digital television service with the spectrum available to it.

To say that the television industry has somehow come up short and blown its chance is, in my own personal view, demonstrably wrong.   To rely on that misperception as justification for a new repacking initiative strikes me as regrettable.

Be that as it may, the battle call has sounded and the FCC has made its first move. It’s time to fall in and prepare for the long haul. This is likely to be an extended engagement.

"Bill Shock" On The Docket

Usage alerts, other steps proposed to prevent unexpected phone charges 

After much public hand-wringing, the FCC has released a Notice of Proposed Rulemaking (NPRM) proposing new rules that would require mobile service operators to provide usage alerts and information to assist consumers in avoiding unexpected charges on their bills. 

Data indicate that many mobile consumers experience “bill shock,” a medical condition in which a sudden, unexpected increase in one’s monthly cellular bill causes massive trauma to a consumer’s wallet. Typically the increase results from unintentional usages outside the scope of the consumer’s service plan. According to the results of an FCC-conducted survey, as many as 30 million Americans have experienced bill shock, a condition which medical professionals believe could be prevented by timely and easily accessible usage information. Unfortunately, this condition does not fall within the new Health Care Law, so millions of consumers have been left unprotected.

The GAO released a report to Congress which estimated that 34 percent of wireless phone users received unexpected charges on their bills. Many of these consumers were not alerted by their provider before they incurred the charges even though the technology to prevent bill shock exists. That technology is not uniformly utilized by mobile service providers. 

As the Commission sees it, consumers are entitled to baseline information allowing them to control the costs they incur for mobile services. Accordingly, the FCC proposes requirements that will provide timely information to consumers about their usage, such as:

  • voice or text alerts when a customer approaches and reaches monthly limits triggering overage charges;
  • notification that international or other roaming charges not covered by their monthly plans are about to be incurred; and
  • disclosure of any tools offered by mobile providers to set usage limits or review usage balances (on this point, the Commission also suggests that it might be inclined to require all carriers to offer consumers the means of setting their own usage limits).

On the assumption that such limits will be imposed, the Commission is interested in suggestions about how the rules should be implemented. For example, should such notifications be provided in “real time”, and if so, what technical limitations might come into play? How should notifications be provided for multi-line family plans? What is the most effective way to provide the notification (e.g., via voice or text alerts)? 

Also, should the FCC establish a precise usage level at which the initial notification message would be triggered? For example, new EU regulations require that wireless providers notify a consumer using a data roaming service when the consumer has reached 80% of an agreed-upon limit. 

Also, should multiple alerts be provided (either at reaching the trigger amount, upon exceeding the monthly usage amount, or every time the charge is to be incurred) or would a one-time alert be enough to do the trick? In any scenario, should the exact amount of the soon-to-be-incurred charge be provided? How long should mobile providers be given to implement any usage alert requirements that might be adopted. What are the best methods to ensure that consumers are made aware of the available tools for monitoring usage balances and limiting usage? How can consumers access these tools and any applicable charges? Also, should all mobile service providers be required to comply with the proposed requirements? Should prepaid services be exempted from the alerting requirements?

The NPRM was published in the Federal Register on November 26. That establishes the deadlines for comments on the various proposals: Comments are due by December 27, 2010, and reply comments are due by January 25, 2011.

Deadlines For Comments in E911 Proceedings Set

Today appears to be E911 Day in the Federal Register. Two recent E911-related Notices of Proposed Rulemaking are published, which means that the deadlines for comments and reply comments in those proceedings have now been set. (The two NPRMs were separately released back in September, so you’re forgiven if they may have slipped your mind of late.)

The first (CG Docket No. 03-123/WC Docket No. 05-196/WC Docket No. 10-191) involves the issuance of toll-free numbers for iTRS use, a practice which can make it difficult for emergency response teams to respond as promptly as possible to E911 calls. We reported on it here, you can read the full text of the NPRM here, and the Federal Register version may be found here. Comments on the proposed rules are due by December 2, 2010, 2010, and reply comments are due by December 17, 2010. Note that this particular proceeding also involves proposed new “information collection” requirements, which triggers the Paperwork Reduction Act – and thus affords yet a third opportunity to comment. If you feel like commenting on the proposed information collection requirements, you may do so by January 3, 2011.

The second proceeding (PS Docket No. 07-114/WC Docket No. 05-196) involves standards for E911 location capability accuracy. We reported on that one here, you can read the full text of the NPRM here, and the Federal Register version may be found here. Comments in the matter are due by January 3, 2011, and reply comments by January 31, 2011.

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.

New E-911 Rules: Can You Find Me Now?

FCC tightens location accuracy standards, provides relief for rural settings, inquires into possible additional steps

After two years of reflection on the matter, the FCC has decided to accept an industry/public safety community compromise on E-911 accuracy standards. At the same time, it has proposed to expand the reach of those standards to new categories of service providers while tightening the standards even further.

When last we talked about E-911, the FCC had adopted rules that required wireless carriers to achieve a high level of “ALI” accuracy (the ability to identify the location of a call) at the public safety answering point (PSAP) level. This development came about because the rules required emergency call location information to be provided with a high degree of accuracy (within 100 meters) for 67% of the calls received and within 300 meters for 95% of the calls, but the standard was being diluted by carriers calculating their level of compliance over large areas.

To plug this loophole, the FCC ordained that the requisite degree of reliability now had to be met on a PSAP level rather than the larger geographic areas which the rules previously permitted. This requirement was deemed difficult or impossible of compliance by many in the mobile communications industry. Carriers who used the “network” solution (which relies on triangulation of signals to achieve accuracy) complained that in areas with few cell sites, the necessary triangulation was simply not available. Appeals to the Court were duly filed, but before the Court could rule, the Public Safety community (APCO and NENA) indicated that they were amenable to liberalizing the measuring standard to a county level rather than the PSAP level. Further discussions with the largest carriers resulted in agreement by Public Safety that some additional leeway was appropriate in areas where heavy forestation impeded the ability to get extreme accuracy. Given the growing consensus that the standard which had been adopted might need revision, the FCC sought and was granted a remand from the Court so it could re-visit the issue.

After seeking further input, the FCC basically accepted the consensus of the industry and Public Safety as to what was both feasible and would provide a heightened degree of accuracy for first responders. While we are usually uncomfortable when the FCC lets AT&T, Verizon and a few other large carriers speak for “the industry,” in this case the FCC listened both to the largest carriers and to representatives of smaller carriers who moaned that they did not have the same access to new aGPS equipment as the majors. The resulting decision seems to reasonably reflect the needs and concerns of most parties.

The FCC afforded network-based carriers an unusual degree of flexibility in establishing compliance. They can elect to be measured over either counties or PSAPs in their service areas, whichever they desire. And they can use either network-based accuracy data, handset-based data (after a few years), or a combination of both. To further sweeten the deal, the FCC will permit carriers to exclude from the calculation counties or portions of counties where triangulation is not technically possible. The pertinent counties must be reported in the FCC Docket and sent to Public Safety.

This concession to the laws of physics is huge since the triangulation problem was a major impediment to compliance by rural carriers. In addition, even a network-based carrier may rely on handset-based accuracy data if it has a high degree of aGPS-equipped subscribers (85%) network-wide or if it gives aGPS equipment to subscribers in the area at no charge. Handset-based carriers also got some relief: they can exclude up to 15% of counties or PSAPs whose heavy forestation limits handset location accuracy.

All of this is not to say that the new rules do not impose significant burdens. They certainly do. To wit:

  • Carriers who use the network-based solution must meet the 100 meters/67% of calls metric over 60% of their counties or PSAPs within one year of the effective date of the new rules. The counties included must cover at least 70% of the counties covered by the carrier over its entire network. The 70% requirement is presumably there to preclude manipulation of the data, but the FCC offered no explanation for it whatsoever, so it is unclear whether the reference to a carrier’s “entire network” means its entire nationwide network or its network within the particular call sign being measured. Within three years, carriers must meet this metric in 70% of the counties or PSAPs, with 80% of the counties in the entire network being included. Finally, in five years carriers must meet the metric in 100% of the counties or PSAPs. At this point, handset-based accuracy data may also be used to demonstrate compliance, on the assumption that aGPS devices will be relatively widely available by that time.
  • Network-based carriers must meet the 300 meters/90%-of-calls metric on a three year – five year – eight year timetable. Note that the metric for this level of accuracy has been reduced from 95% of calls to 90%.
  • Meanwhile, handset-based carriers have two years to meet an accuracy metric of 50 meters/67% of calls and 150 meters/80% of calls. By year eight they must reach 150 meters accuracy for 90% of calls.
  • No self-respecting FCC regulation would be complete without a reporting requirement. Here the FCC is requiring the reporting of “confidence and uncertainty” data at the request of any PSAP. We appreciate this requirement because a fragile balance of confidence and uncertainty so defines the human condition. The precise nature of this data is notably unclear from the FCC's order, leaving us somewhat on the uncertainty side of the equation in this regard.
  • Finally, the FCC has clarified that the accuracy metrics noted above only apply to outdoor measurements. But how will the measurement process know whether any particular call originated from indoors or outdoors, and therefore whether it should be included in the accuracy calculations?

Having adopted these requirements, the FCC issued a companion notice of proposed rulemaking (NPRM) inquiring into a number of important issues:

  • Should there be single accuracy metric given the accelerating convergence of handset and network technology?
  • Can the level of accuracy required be stepped up even higher given the new technologies?
  • Should “Z-axis” (i.e., height above ground data) be added to the location requirement?
  • More broadly, should the Commission extend the current VoIP ALI rules to a wider universe of service providers?   The current rules require VoIP users to self-report their location since there is no other way for the network to know where a computer happens to be located. And even this requirement applies only where the customer originates and terminates calls to the PSTN in real time. But as the use of computers and computer-like devices with voice capability spreads, so too does the need to be able to locate 911 calls originated from such devices. The Commission recognizes that such an expansion of the E-911 process would be problematic since the new computing devices are themselves mobile – self-reporting one’s whereabouts would be impractical and would defeat the purpose of “automatic” location identification. This inquiry is plainly at its inception, but it will become more important as all communications move to an Internet-based model.

The deadlines for comments and reply comments have not yet been set. They will depend on the date the NPRM is published in the Federal Register (comments will be due 60 days after publication, replies 90 days after publication). Check back here for updates.

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.

FCC Proposes Onerous Wireless Renewal Requirements

Applicants would have to track down and turn over multiple documents – all of which the FCC already has.

Wireless licensees take note: the FCC has proposed changes to its renewal procedures, changes that could mean a lot of extra work for you, with little clear public benefit. 

The Commission is proposing to require wireless licensees to submit, along with their renewal applications, copies of all FCC orders finding a violation or apparent violation issued with respect to the licensee during the license term, whether or not the violation(s) (or alleged violation(s)) relate to the license being renewed – and whether or not a violation was ultimately found. That’s right – the FCC wants more copies of its own documents. It also wants a list of petitions to deny filed for any reason against any application submitted by the licensee – again, even applications involving licenses that are not part of the subject renewal application.

But wait. It gets worse.

Not only would the licensee/renewal applicant have to produce its own documents, it would have to track down and turn over a similar universe of documents for each of its “affiliates” – “affiliates” not just in the usual sense of “under common control or management”, but in the very broad sense of sharing facilities, participating in joint venture arrangements, or even just having contractual relationships. (For all the unpleasant details, check out the definition of “affiliate” in Section 1.2110 (c)(5) of the FCC’s rules.) This broad definition normally applies in auctions, to avoid competitive bidding credits going to undeserving entities. It does not fit well in the renewal context, where the point is to assess the qualifications of the licensee, not entities that it can’t control. 

Worse, the proposed document production exercise would repeat each time any license held by the applicant and any of its affiliated entities comes up for renewal. Especially for larger entities, the procedure would result in a cascade of repeated document productions, in some cases involving hundreds of affiliates and thousands of licenses. No wonder AT&T and Sprint are worried. This type of due diligence is no cakewalk for smaller entities either, who will have fewer resources to put towards compiling the required information. 

Expensive, time-consuming – and probably unlawful.   The federal Paperwork Reduction Act (yes, it’s hard to tell, but there really is one) bars governmental agencies from requiring the filing of “unnecessarily duplicative” information otherwise reasonably accessible to the FCC. All of the requested paper is already in the FCC’s own files. If that isn’t unnecessarily duplicative, then nothing is.

After all that, if the Commission finds an applicant’s submission to be “insufficient”, the Commission will deny the application. Don’t ask us what “insufficient” means – the FCC isn’t saying. Apparently, like Justice Stewart in Jacobellis v. Ohio, it will know it when it sees it. Given that people’s livelihoods can be at stake, we expect a better articulation of what the Commission is looking for. We think the Administrative Procedures Act expects the same.

Reply comments about the proposed rule changes are due by August 23. The Commission will accept ex parte communications after that.

2010 Reg Fees -- Trending Down!

If it’s Spring, it’s time for the FCC to propose new regulatory fees that will be payable in late Summer. And sure enough, the Commission has released its annual Notice of Proposed Rulemaking laying out a tentative fee schedule. The Commission invites comments on its proposals, but if you think you might want to throw in your two cents’ worth, you’ll have to act fast. The deadline for comments on the proposed fees is May 4, 2010; reply comments may be filed through May 11.

The good news is that, unless you’re a UHF TV licensee (or a VHF licensee in certain markets), you’re probably not going to have a problem with the proposed fees. All AM and FM license fees are proposed either to go down or to stay at last year’s levels. All VHF license fees for Markets 11-25 and Markets from 51 on down would also go down (as would the fees for all VHF CPs). No change is proposed for translators/boosters – FM or TV – or LPTVs; ditto for broadcast auxiliary licenses. UHF CPs would go up (but only by $75), as would AM CPs (by $20), while FM CP would go down by $20.

All you full service TV operators – heads up. The Commission has previously exempted digital TV operations from reg fees because the DTV transition was still underway. As we all know, the transition was completed as of June 12, 2009, so we can kiss good-bye to the digital exemption. And while reg fees will be determined by the status of your authorization as of October 1, 2009, note that a special temporary authorization for DTV operation in effect as of that date will count as a “license” for fee calculation purposes this year.

We have prepared a table reflecting the proposed 2010 reg fees here. The numbers in parentheses reflect the amount of the proposed changes from last year’s fees – and as a visual aid, we have indicated proposed fee increases in red, and proposed reductions in cool blue.

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 September (or possibly August). Look for an announcement sometime mid- to late Summer.

One last highlight of the NPRM. The Commission is proposing to do away with the postcard notification system by which it has, for several years, alerted broadcast licensees of their primary fees. The postcards will still go out this summer, but starting in 2011, media licensees would be on their own to determine the fees they owe. (This is part of an effort by the FCC to become “more electronic and less paper-oriented”.) If you would like to comment on this particular proposal, the Commission is going to leave the comment/reply comment period open until September 30, 2010 for that limited purpose.

2009 Reg Fees: A Break For Some DTV Stations

DTV-only as of October 1, 2008? This is your lucky fiscal year!

While pre-October 1, 2008, termination of analog operation was clearly the exception rather than the rule, it appears that stations which did shut down their analogs before October 1 are getting a free reg fee ride this year. In looking through the Commission’s recent reg fee order, we noted the following statement relative to DTV operation: “[S]tations that were broadcasting in digital only on October 1, 2008 would not be assessed regulatory fees for their digital license for FY 2009.”  (Stations that were broadcasting in both analog and digital modes as of October 1, 2008, however, will be required to pay regulatory fees, but those fees relate only to the analog operation.)

This exemption is limited: it does not get eligible stations off the hook for other regulatory fees that may be due, such as those for studio-transmitter links, remote pick-ups, satellite earth stations, and the like. Rather, the exemption relates only to the reg fee for the main broadcast license. (Of course, the payment for that license normally represents the lion’s share of the amount due.)

The FCC’s largesse is consistent with its treatment of DTV for the past several years.

Since the issue of DTV versus analog operations (and the reg fees attributable to each) first arose, the reg fees paid by TV stations have been attributable strictly to the analog license. Following that logic, the few new TV stations initially licensed as a digital-only stations have not been required to pay regulatory fees for their DTV licenses.

TV licensees which shut down their analog operations before October 1 should take a close look at the reg fee postcards they receive from the Commission to see whether that early termination was taken into account in determining the fees due. Our guess is that it will not have done so. 

If that’s the case, the next step is not entirely clear. Since the reg fee order clearly indicates that a fee exemption applies, such stations should theoretically be able simply not to pay the reg fee for their main license. However, it would probably be a good idea to round up evidence – and maybe even submit it before the deadline for reg fee payments – to demonstrate that the station was digital-only by October 1, 2008. Otherwise, it may be necessary to go through the dreaded process of demonstrating to the FCC after the fact that no fee or penalty was due. 

In any event, since the Commission could try to assess a 25% late fee if it thinks that the fee was due but not paid, it’s a good idea to take steps beforehand to avoid having to explain your position to the FCC after-the-fact. (Note that late payers may also be subject to other regulatory problems, including the very disadvantageous red-light status and increased upfront payment requirements in FCC auctions.)

The Commission also was quick to point out that regulatory fees for Fiscal Year 2010, which begins this coming October 1, will be imposed on digital licenses. After all, DTV licensees must pay “their share” of regulatory fees once the nationwide transition is complete. In the meantime, eligible stations can enjoy their one-year respite.

2009 Reg Fees Set

Filing deadline still unannounced

The Commission has adopted its final schedule of Regulatory Fees for 2009. You can find the new fees listed in Appendix C of this Report and Order. (Since the R&O – including its nine appendices – runs to 68 pages, it may be helpful to point out that Appendix C appears at pages 21-23 in the PDF version you will find when you click on the link.)

The new fees are, with one exception, the same as the Commission proposed last May. We described those proposed fees here. The sole exception is the fee associated with AM CPs. Here’s a surprise: the final fee ($400) turns out to be $80 less than the FCC had originally proposed!

The only real change this year is that electronic payment of all reg fees must be started through the FCC’s Fee Filer system as of this year. The Commission recognizes that some folks may not be able actually to pay through the Fee Filer system. (For example, the fees for some licensees may exceed $100,000, and credit card payments in such amounts may not be a happening thing.) But at a minimum, everybody is supposed to start at Fee Filer because that will enable them to generate a voucher Form 159-E which, the Commission assures us, “will have important electronic attributes associated with this regulatory fee payment.” With very limited exceptions, anyone not paying their fees through Fee Filer will need a voucher Form 159-E to accompany their payments.

Accessing the Fee Filer system requires you to have a current FCC Registration Number (FRN) and associated password. If you don’t have an FRN, we would be happy to help you work through the CORES system to get one.

As it has done for the past five years, the Commission will again send out “assessment notifications” to all broadcast licensees, advising them of the reg fees associated with their primary licenses. But, also as in past years, those notifications will NOT include any necessary fees for auxiliary licenses. This is important to remember, because even though auxiliary fees don’t show up on the FCC’s notifications, such fees are still required to be filed – and a failure to file even the weeny little $10 fee for, say, a remote pickup unit can result in “red light status” affecting all your licenses.

We expect the deadline for reg fees to be announced shortly.  Check back here to CommLawBlog.com for updates.

Reg Fees, 2009 - Up, Up and Away!

The Commission has released its Notice of Proposed Rulemaking (NPRM) laying out its proposed 2009 regulatory fees. To no one’s great surprise, for the second year in a row all but one of the 61 categories of broadcast-related fees are proposed to go up. (The lone exception is the fee for a broadcast auxiliary license, which – also for the second year in a row – is proposed to remain at $10.) The proposed fees are listed in Appendix I to the NPRM.

And when we say “up” we mean “UP”. Reg fees for all full-service TV licenses in the Top 100 markets would increase by more than 9%, with UHF stations in the Top 10 going up by more than 14% and VHF’s in Markets 11-25 up by more than 13%. 

On the radio side, Class C AM’s in all markets are looking at double digit surges mainly in the 13%-14% range (and as much as 15.4% for stations serving populations of 25,001-75,000). Class D AM’s would fare only slightly better, with increases in the 11%-12% range (except for those serving fewer than 25,000 listeners – they’d only get whacked for a 9.5% increase). All FM stations are looking at reg fees that would be 5%-9% higher than last year.

Beyond the numbers, the Commission this year is proposing to make the electronic filing of fees (through its on-line Fee Filer system) mandatory. In past years the FCC has strongly recommended e-filing, but has not absolutely required it.

Also, as the DTV transition approaches, the Commission has confirmed that it does not plan to charge full service TV stations double – i.e., for both their analog and digital operations – if they were in fact broadcasting two signals as of October 1, 2008. Rather, the Commission will charge only for the analog. Presumably none of this will be an issue next year, since the transition will have occurred by October 1, 2009, and there should be only a few exceptional situations in which full service stations may still be holding two separate authorizations.

The NPRM invites comment on the proposed fees as well as a variety of other administrative matters (such as mandatory electronic filing and future treatment of digital TV fees). The deadline for comments is June 4; for reply comments it’s June 11. As you might guess from the somewhat abbreviated comment periods, by “inviting” comments the Commission is largely just jumping through procedural hoops it’s required to jump through. Feel free to lob in your comments, but don’t be surprised or discouraged if they are not embraced in any meaningful way by the FCC.

No word yet on precisely when the fees will be due, but traditionally the deadline falls in September (or possibly August), in order to assure that the FCC has collected its fees in time for the start of the next budget year in October.

"Replacement Translator" Update: Comments Are Due January 12

If you’re planning on submitting comments in response to the FCC’s Notice of Proposed Rule Making (NPRM) concerning digital replacement translators, you’ve got until Monday, January 12 to get them filed. The NPRM appeared in the Federal Register bright and early on January 2. As we previously reported, the Commission limited the comment period to ten days following FedReg publication, so that ten-day clock is now ticking. Reply comments will be due ten days after that, on Thursday, January 22.

"Analog Nightlight" Update: Comments Are Due January 5

If you are planning to file comments on the FCC’s effort to implement the “analog nightlight” service, you’d better put aside thoughts of a pleasant New Year’s Eve and New Year’s Day holiday and start drafting now. The Commission’s Notice of Proposed Rule Making was published in the Federal Register today, December 31. Since (as we previously reported ) the FCC is providing a whopping five days for comments (following FedReg publication), those comments are officially due on Monday, January 5, 2009. Reply comments are due three days later, on Thursday, January 8.  (Don’t forget the FCC’s cheery seasonal greeting at Paragraph 2 of the NPRM: “Notwithstanding the holiday season, these dates will not be extended.”)  Happy New Year!!!

In the Starting Blocks: Replacement Translator Spectrum Rush Set to Kick Off On January 5

As we reported on December 23, the Commission proposed the creation of a new “replacement digital television translator service” to provide one more way to avoid loss of TV service when we all cross the threshold into DigitalOnlyLand in February. Now, before anyone has even had a chance to file comments on the proposed new service, the Media Bureau has announced that it will start accepting applications for new replacement digital translators on January 5, 2009. 

Processing of the CP applications will be deferred until the Commission gets around to adopting the rule changes necessary to implement the new service but that doesn’t mean we won’t be seeing new replacement translators cranking up all over the place in the immediate future: the Bureau has also announced (with the full Commission’s blessing) that the STA window will be open for business as of January 5 as well.

Here’s how the system will work.

If you want a replacement digital translator, you may file for it using FCC Form 346 on CDBS starting on January 5. (Purse-strings note: The filing fee for the application is $675.) Your application will have to include a technical showing that: (a) a portion of your existing full-service TV station’s analog service area will not be served by that station’s full, post-transition digital facilities, and (b) the proposed replacement translator will serve only the demonstrated loss area. For these purposes, “analog service area” is being defined as “the authorized service area actually served by the analog signal prior to analog termination for the transition”.

While the Bureau emphasizes that replacement translators must be limited to the demonstrated loss area, there’s a loophole: you may propose replacement translator service beyond the loss area, but to do so you must demonstrate that it is “impossible to site a translator that replaces a loss area without also slightly expanding the full-service station’s digital service area.” The Bureau offers no definition of the word “slightly”.

A few other things to bear in mind.

  • Replacement translators may not operate on Channels 60-69. 
  • Channels 52-59 may be used, but only if no suitable in-core channel (i.e., Channels 2-51) is available.  A “suitable in-core channel” is defined as “one which would enable the station to produce a digital service area comparable to its analog service area.” Any applicant seeking an out-of-core channel will have to certify to the unavailability of any suitable in-core channel. 
  • Out-of-core applicants will have to notify all potentially affected 700 MHz commercial wireless licensees of the spectrum comprising the proposed TV channel and the channels first adjacent to that proposed channel. That means all co- and first adjacent-channel wireless licensees within whose licensed geographic boundaries the replacement translator is proposed to be located as well as all co- and first adjacent-channel licensees whose geographic service area boundaries lie within 75 miles and 50 miles, respectively, of the proposed translator site. (Identity and contact information for all 700 MHz wireless licensees is available through ULS.) These notifications must be made when you file your application, and you will be required to certify in the application that the notification requirements have been met.

So much for the CP application. If you want an STA – which, if granted, will allow you to crank up your replacement translator immediamente – you can file for one through CDBS, also starting on January 5. STA requests have to include the same showings and certifications described above. That shouldn’t be too hard to handle, though, because another condition of the STA process is that the STA applicant must simultaneously file for an application for a construction permit – so you can presumably re-cycle the showings included in the application. (Extra purse-string note: there’s a separate $160 filing fee for the STA request.)

The Bureau’s public notice does not address the sticky issue of possible mutual exclusivity, but the full Commission did in its pre-Christmas NPRM: Applications will be processed on a first-come, first-served basis, with the earliest filed application getting priority. If more than one mutually exclusive application is filed on the same day, the FCC will allow a 10-day settlement period. If there is no settlement, the applications will go to auction.

The window opens on January 5. Happy New Year.

"Analog Nightlight" Service Standards Proposed

FCC rushes to implement “Analog Nightlight Act” (formerly known as “SAFER Act”) by January 15 deadline

Acting with blazing speed, on Christmas Eve the Commission released a Notice of Proposed Rulemaking (NPRM) setting out the tentative standards and processes for implementation of the SAFER Act which was signed into law on December 23, just the day before the NPRM was released. The SAFER Act – which the FCC now catchily refers to as the “Analog Nightlight Act” – authorizes continued, albeit very limited, operation of some analog TV stations beyond the previously-established February 17, 2009, termination date of such operation.

Since the SAFER, er, Analog Nightlight, Act left little room – and even less time (the Act requires the standards to be in place by January 15, 2009) – for agency creativity, there are few surprises in the NPRM. The Act permits continued analog operation for 30 days beyond the February 17, 2009, final transition date as long as such operation would not cause interference to digital TV signals (or public safety services) and as long as the content of such operation is limited to emergencies and/or educational/informational matter relating to the DTV transition.

With respect to which stations might be eligible for post-transition “analog nightlight” service, the Commission identifies 300+ stations that satisfy established undesired-to-desired co- and adjacent-channel signal ratio criteria. (The FCC also provides a table of minimum spacings based on those criteria.) In developing those preliminary eligibility criteria, the Commission balanced (a) the desirability of providing “nightlight” service to as many areas and viewers as possible with (b) the statutorily-imposed requirement that such service not cause interference to digital operations.

If you’re on the Commission’s list of “pre-approved” stations, you will be permitted to provide “nightlight” service between February 18 and March 19 as long as you file for a Legal STA (through CDBS) by February 10, 2009. The FCC also requests that stations planning on participating also so notify the FCC in comments filed in response to the NPRM. 

If you’re not on the “pre-approved” list, you can still ask for permission to provide “nightlight” service. To do so, you have to file for an Engineering STA (through CDBS), demonstrating that you would cause no more than 0.1% interference (the standard criterion used by the Commission in the channel election process) – unless you can show that you’re the only station in the area eligible or willing to provide “nightlight” service, in which event you could cause up to 0.5% interference. Such requests are due by February 3, 2009, and will be included on a public notice to be released shortly thereafter. The Commission also suggests that non-pre-approved stations seeking to opt into the program also so advise the Commission in comments in response to the NPRM.

Objections to such requests may be filed, but absent any objection, such stations will be deemed eligible for “nightlight” service. Of course, if any “valid” interference complaints were to be filed, such operation would have to cease immediately.

Note that stations – “pre-approved” or otherwise – opting into the “nightlight” program will also be expected to update their DTV Transition Status Report (FCC Form 387) to reflect that participation. Magnanimously, the Commission has agreed not to charge any filing fee for the Legal or Engineering STA requests that participants will have to file.

With respect to the content of “analog nightlight” service, the Act is very clear: such programming will be limited to emergency information and DTV-education information. No other programming – including any advertising – is permitted under the Act, and the FCC has dutifully proposed to so limit the service. While the Act requires that DTV educational information be (a) made available both in English and Spanish and (b) accessible to persons with disabilities, the Commission appears to extend those requirements to emergency information as well.

The NPRM seeks comment on a variety of questions relating both to station eligibility for “analog nightlight” service and to the content of such service. But in view of the circumstances here, any request for comments seems to be little more than an empty gesture made to comply with the letter of the Administrative Procedure Act. Comments on the NPRM are due within five (count ‘em, five) days following publication of the NPRM in the Federal Register, and reply comments are due three days later. And anticipating extension requests, the Commission has emphasized that the deadlines will not be extended “[n]otwithstanding the holiday season”. Ho ho ho.

While it’s difficult to predict with any reliability when any FCC item will be published in the Federal Register, it’s probably a good bet that the FCC will push to get the NPRM in as quickly as possible. Check back on CommLawBlog for updates.

In the DTV Christmas Stocking: Replacement Translators!!

FCC proposes new Replacement translator service for full-service DTV fill-in, opens door for immediate filing

Having canceled its December 18 open meeting and substituted a quick conference call on December 30 to meet the statutory monthly meeting requirement, the FCC now seems to relish putting out significant items just in time to keep everyone working over Christmas. The latest example: the December 23 (that’s right, Christmas Eve Eve) release of a Notice of Proposed Rulemaking (NPRM) proposing to open a special opportunity for full power television stations to apply for what will be known as digital “Replacement” translators to fill in gaps in the coverage of their primary signal. These applications will be accepted even though applications for new translators generally may not be filed absent a general translator application window, which the FCC evidently does not intend to open until any rush of Replacement translator applications dies down.

Because the new “Replacement” service will serve as the spackle patching over holes in signal coverage resulting from the fast-approaching DTV transition, the Commission has put the NPRM on a super-fast track. Comments will be due a mere 10 days after the proposals are published in the Federal Register. And even before the clock for comments starts running, applications will be accepted: the FCC authorized the Media Bureau to start accepting applications as early as Christmas Eve, just as Santa Claus cranks up his reindeer and sleigh. And while the applications may not be granted until the rulemaking is completed, the staff will be able to grant special temporary authority (STA) in the meantime. 

If you want to file an application, do it quickly, because applications will be processed on a first-come, first-served basis, with the earliest filed application getting priority. If more than one mutually exclusive application is filed on the same day, the FCC will allow a 10-day settlement period. If there is no settlement, the applications will go to auction.

Replacement translators may be requested only by the licensee of a full power station and only to fill in an area covered by the station’s analog signal but not covered by its digital signal (although the FCC asks whether de minimis extensions of the analog service area should be permitted – and if so, how “de minimis” should be defined). The translator license will be firmly riveted to the full power license, so it cannot be sold or assigned apart from the full power station. Presumably a Replacement translator may not convert to a Low Power TV Station or originate separate programming, although the FCC does not explicitly say that in the NPRM.

Applicants must first search for a channel in the range 2-51. If no channel is available, an application may be filed for Channels 52-59, with notice to be given to local public safety entities that will ultimately have access to those channels. Stations are encouraged to consider installing multiple transmitters on their full power channel, under the recently adopted  distributed transmission systems (DTS) rules; buying time on existing Low Power Television (LPTV) stations; and buying time on another full power station’s secondary digital stream. Exhausting these possibilities does not seem to be a firm pre-requisite for filing for a Replacement digital translator, but some commenters will undoubtedly request that Replacement translators be a solution of last resort. The FCC also proposes a short-leash use-it-or-lose it policy, where Replacement translator construction permits are valid for only six months rather than the traditional three years.

Applications for Replacement translators will have priority over all other Class A, LPTV, and TV translator applications except applications for displacement relief where a station is forced off its channel by interference. Replacement translators will have equal priority with displacement applications; so presumably, the first-come, first-served principle would protect earlier filed displacements. However, pending applications for new or modified Class A, LPTV, and TV translator stations, including digital companion channels, could be bumped by a Replacement translator application. It appears that all granted Class A, LPTV, and TV translator applications would be protected, even if the facility is unbuilt.

The FCC proposes that Replacement translators be a secondary service, even when an application is granted – meaning that they could be bumped by a full power station application. The FCC also invites comments on the impact that Replacement translators might have on the availability of “White Space” spectrum in urban areas for unlicensed wireless networks. White Space proponents, some of whom have already suggested that their service should not be secondary, may be sharpening their fangs in preparation for battle.

Whatever your viewpoint may be on translator and White Space issues, it does appear that the Replacement translator train is barreling down the track rather quickly – it would not surprise us to hear that a Report and Order approving the proposed rules has been written already, even before comments are received and reviewed. However, there may be opportunities for commenters to shape some aspects of the rules, even if defeat of the entire proposal is unlikely.

In view of the very short comment period, check back to this site periodically for updates.

Deadline For Localism Comments Extended To April 28

If you are thinking about filing comments in response to the FCC's Localism Report and Notice of Proposed Rulemaking (MB Docket No.04-233), be advised that the deadline for those comments has been extended by the Commission to April 28, 2008.  The extended date for reply comments is June 11.  As we have observed in previous postings here and in the FHH Memo to Clients, this proceeding is extremely important and could end up imposing very substantial new burdens on all broadcasters.  We urge all broadcasters to take a close look at the FCC's proposals and to make their feelings about those proposals known as clearly and forcefully as possible.  FHH will be preparing comments on behalf of a number of clients - if you would like to join in that effort, please give us a call.

 

Localism NPRM Published in Federal Register; Comment Deadline Set

With the publication of the Commission's Notice of Proposed Rulemaking on localism in the February 13, 2008 Federal Register, the deadline to submit Comments in the proceeding has been set for March 14, 2008.  Reply Comments will be due on April 14, 2008.

As discussed previously on this blog, the NPRM presents a laundry list of tentative conclusions and proposed rules that would turn the clock back nearly three decades, forcing broadcasters to comply with costly and burdensome requirements, including a return to ascertainment requirements similar to those required of licensees through the early-1980's.

The Commission is expected to receive a barrage of opposition from the broadcast community, including a challenge by the National Association of Broadcasters and many of FHH's broadcast clients.

If you have questions or wish to participate in the proceeding, you should contact your FHH attorney immediately.

FCC's Localism Proposed Rules/Tentative Conclusions Present Significant Burden for Broadcasters

The release of the Commission's January 24, 2008 Notice of Proposed Rulemaking ("NPRM") announcing a laundry list of tentative conclusions and proposed rules concerning localism sent immediate shockwaves throughout the broadcast industry.  Reaction was particularly strong in view of the recently released Television Standardized and Enhanced Disclosure Requirement ("Enhanced Disclosure Order") Report & Order (see our coverage of this R&O here, and more in depth coverage in the January edition of Memorandum to Clients).  Many observers have suggested that if the NPRM's proposed rules/tentative conclusions are adopted, the FCC will be turning back the clock nearly three decades, when licensees were forced to comply with burdensome ascertainment requirements.

According to the Commission, the proposed rules are designed to address the perception that broadcasters may not be addressing the needs and interests of their communities sufficiently.  Over the past several years, the Commission has solicited comments from the public and engaged in localism hearings at venues all over the country.  From comments received through that process, the Commission has determined that "many stations do not engage in the necessary public dialogue as to community needs and interests and that members of the public are not fully aware of the local issue-responsive programming that their local stations have aired."

(Note that, while the Commission refers to some "necessary public dialogue," there is no requirement for any such dialogue in the Commission's rules, nor has there been for more than 25 years.  Also, while members of the public may not be "fully aware" of available programming, that would appear to be more the fault of the "unaware" pubic than of broadcasters.  After all, broadcast programming is, well, broadcast -- meaning that it's available for one and all to receive, at no cost).

Many feel the Commission has gone overboard with the tentative conclusions presented in the NPRM (adopted on December 18, 2007).

  We can look for considerable resistance to the proposals from a variety of sources, including the

National Association of Broadcasters, once comments start to roll in. 

Comments will be due 30 days following publication in the Federal Register, with reply comments due 30 days following the initial comment deadline. 

Check back on this blog for updates.

The following is a summary of the nitty-gritty of the NPRM.  Broadcasters in particular should recognize that, if the FCC's proposals are adopted, the broadcast industry will be subject to very substantial new paperwork and recordkeeping obligations.  Moreover, those obligations will almost certainly give rise to an increase in public involvement -- both pre-broadcast and post-broadcast -- in each broadcasters' programming decisions.  While such involvement is not necessarily a bad thing, the potential for mischief and worse is substantial.

  • The Commission has tentatively concluded that each licensee should be required to convene a permanent advisory board consisting of community leaders and officials.  Regular, quarterly licensee meetings with this board would be mandatory.  These meetings would assist each licensee in ascertaining the issues of primary interest in its community, leading to more localism and diversity-focused programming.

The Commission is also considering the adoption of additional rules/guidelines to foster improved communication between licensees and their communities, including the following:

i.    Ad hoc viewer surveys via telephone or Internet

ii.    Focus sessions or "town hall" meetings with viewers to help prioritize issues to be covered through news, public affairs, public service, and special programming

iii.   Participation by station managers/personnel on community boards, councils and commissions

iv.   Dedicated telephone numbers, websites and email addresses, publicized during programming, to facilitate community dialogue

  • The Commission referenced the Enhanced Disclosure Order released simultaneously (see above for links to further coverage), which among other things, introduced a brand-new comprehensive disclosure form (Form 355) and implemented a requirement that stations post the majority of their public files on their websites.  While the rules adopted in the Enhanced Disclosure Order apply solely to television, the NPRM suggests that the same rules might soon apply to radio.  The NPRM repeatedly cites to the Commission's Digital Audio proceeding (in which the Commission adopted the IBOC standard for digital broadcasting by AM and FM stations).  In that proceeding, the Commission sought comment on similar enhanced disclosure requirements for radio.  But the window to participate in that proceeding is now closed.  One might fairly conclude that the Commission may intend to impose similar or identical enhanced disclosure requirements on radio broadcasters with no further opportunity for those broadcasters to object.
  • Stations may be required to have personnel staffing their facilities during all hours of operation, thereby eliminating remote control operations currently permitted.
  • The Commission has tentatively concluded that it will reintroduce renewal application processing guidelines incorporating a specified minimum percentage of programming aimed at addressing local issues.  Licensees meeting the requisite percentages would have their renewals processed by the Media Bureau on delegated authority, while those falling short would have their renewals considered by the full Commission.  The Commission is seeking comments on the content of these guidelines and how they would be measured.
  • The Commission is considering a reversion to its pre-1987 main studio rule, which required each station's main studio to be located within its community of license.  As a result of repeated relaxations of that rule over the last 20 years, under the current rule a station's main studio may be located within either (a) the principal community contour of any station, of any service, licensed to its community of license or (b) 25 miles from the reference coordinates of the center of its community of license.  Either way, the current rules plainly permit stations to locate their main studios at considerable distance from their communities of license.
  • The Commission is seeking comment on whether it should require website posting of the requisite on-air announcements concerning soon-to-be-filed and pending license renewal applications.
  • The Commission is seeking comment on whether it would be helpful for the Commission to introduce rules designed to allow stations to review network programming sufficiently in advance of airtime to determine whether the programming is unsatisfactory, unsuitable or contrary to the public interest.
  • The Commission is seeking comment on the prevalence of voice-tracking (i.e. customizing the content of programs featuring popular out-of-town personalities to make it appear as though the personalities are actually local to the station's area when, in fact, the programming is produced elsewhere) and whether anything can and/or should be done to limit its practice.
  • While rejecting the prohibition of national music playlists by licensees (and a corresponding requirement that stations give airplay to local artists), the Commission is seeking comment on whether it should require licensees to maintain and make available data regarding the airing of local music.  This disclosure would also include descriptions of how their playlists are compiled.  Their information would be used in consideration of renewal applications.
  • The Commission has tentatively concluded that it should allow additional qualified low power television ("LPTV") stations to be granted Class A status.  The Commission is seeking comment on its conclusion, how to define eligibility, and its statutory authority to take the action.
  • The Commission noted that it intends to commence a proceeding to propose rules promoting access by cable and satellite subscribers to the programming of television broadcast stations licensed to communities in the state in which they live.
  • The Commission directed its Media Bureau to develop a new computer program to assist potential radio applicants in identifying suitable available commercial FM spectrum in the location in which they want to operate.  This will alleviate the need to hire consulting engineers, which the Commission hopes will trigger increased localism in broadcasting, and diversity in radio ownership and programming.
  • The Commission also observed that it is important that broadcasters provide timely and accurate emergency information, which it will tackle in the pending Emergency Alert System Further Notice of Proposed Rulemaking, which the Commission stated it will take action on soon.
  • The Commission referenced its Further Notice of Proposed Rulemaking concerning LPTV stations and a number of potential rule changes which would promote localism, such as providing the stations additional protection from interference from full-power stations.
  • The NPRM referenced the Commission's December 18, 2007 Report and Order which introduced efforts and sought comment on actions to assist new entrants and small businesses (including minority- and women-owned businesses) to gain access to financing and spectrum opportunities, including station construction deadline extensions, while cracking down on race or gender discrimination in broadcast transactions and ownership representations.
  • The Commission is investigating violations of its sponsorship identification rules in numerous proceedings, and may soon launch a proceeding to tackle the issue of embedded advertising - i.e. product placement.

As always, we encourage anyone with questions regarding this proceeding to contact us via telephone or email. 

We also encourage discussion on the blog, as it's important for the broadcast community to discuss and sort out these issues in preparation for the comment/reply comment period, which will play a vital role in how these rules/proposed rules evolve.

FCC Considers Allowing AM Stations to Use FM Translators

The FCC's proposal to allow AM stations to use FM translators for fill-in service (including at night, even if the AMer is a daytime-only station) has taken an important step forward.

The Notice of Proposed Rule Making (NPRM) containing that proposal has been published in the Federal Register (on Tuesday, November 6). With that publication, the deadlines for comments and reply comments have been established. If you want to file comments, you have until January 7, 2008. Reply comments are due on February 4, 2008.  The NPRM was issued in August in response to a petition filed by the NAB. The NAB's petition attracted some 500 sets of supporting comments.

The proposed rules would allow AM stations to operate FM translator stations to retransmit their signals as a fill-in service, provided that no portion of the 60 dBu contour of any such FM translator station extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. 

The proposal also contemplates that AM daytimers would be able to use FM translators at night, thus effectively allowing them to originate programming on the translator. Precisely how that nighttime capability would work as a practical matter remains to be seen. The proposal raises a wide range of ancillary questions which will have to be considered before the Commission adopts all or part of the proposal. Those questions relate to (among other things) eligibility criteria, technical standards, and timing considerations.

The NPRM may be found here.

FCC Considers Compelled Promotion of DTV Transition

By Michael Richards

TV broadcasters may need to adjust their budgets just a tad more for the upcoming DTV transition. It's possible that they'll be having to cough up air time for spots to inform the 10-to-15 percent of TV households without cable or satellite service that their 30-year-old Zeniths may show nothing but snow once D-Day arrives.

In defense of the FCC, the Commission did not come up with this idea - or, more accurately, this inchoate bundle of concepts that might someday congeal into a coherent idea - on its own. Rather, the idea arrived in the mail, in a letter from a couple of influential (read: Committee Chairmen) members of the House of Representatives. They suggested that, with the DTV transition fast approaching, it might be a good idea for the Commission to "require television broadcasters to air periodic public service announcements and a rolling scroll about the digital transition."

Demonstrating the propensity of semi-liquid substances to flow downhill, the Commission has passed that suggestion along to the broadcast industry in the form of a Notice of Proposed Rulemaking (NPRM). Obviously intent upon placating its Congressional overseers, the Commission makes clear that it does indeed plan to impose on TV licensees the obligation to conduct "on-air consumer education efforts". But what, exactly, does the FCC have in mind?

It's hard to say. Instead of outlining any specific proposals, the NPRM merely whips Congress's one-sentence vague suggestion into an impressive series of thirteen vague questions (see the NPRM excerpt quoted verbatim below) and directs the downhill flow to broadcasters. And then, recognizing that, notwithstanding the salutary effects anticipated from the sure-to-be-mandated "on-air consumer education efforts", many viewers will likely still need "additional assistance in preparing themselves" for the DTV transition, the NPRM asks for more suggestions on steps the Commission and industry might take to assure that consumers "have access to the information and assistance they need."

But wait, there's more. The Congressional letter also suggested that it might be a good idea for the FCC to impose a reporting requirement on broadcasters relative to their consumer education efforts - you know, maybe a report to be filed every 90 days, listing the "time, frequency and content" of all transition-related PSA's broadcast. Oh yeah, and Congress also suggested "civil penalties for noncompliance".

Needless to say, the Commission has included that suggestion in the stream of "proposals" set out in the NPRM. Again, the NPRM offers little of substance, relying instead on a series of vague questions. (See the aforementioned NPRM excerpt below.) The FCC also proposes similar informational obligations for multichannel video programming providers and consumer equipment manufacturers.

Of course, the TV industry has a horse in this race. The last thing anyone in the TV biz wants is to lose the eyeballs of consumers caught unaware by the coming DTV transition. There's money to be made - and potentially lost - from any transition failures.

But the crux of the rulemaking is to codify what the industry must do, by government fiat - and, consequently, what resources stations must cough up for public education, resources over and above of the millions of dollars already invested in new equipment and spent on maintaining duplicative digital transmissions long before DTV receivers were widespread. A number of smaller market operators, in particular, have struggled to meet these expensive technical demands given the smaller ratio between ad revenues and DTV equipment investments.

While it's true that digital multicasting may improve over-the-air TV's competitive position, many smaller operators have had to mortgage the farm in order to seed a not-yet-sure DTV harvest - a harvest which is particularly unsure as new digital technology increasingly makes video entertainment and information available from sources other than licensed stations.

On the other hand, it is in the broadcast industry's interests to make D-Day as painless as possible. In a world of 500 channels and virtually limitless Internet content choices, customer retention is not just a good idea, it is mandated by the unyielding laws of survival. So the industry should be taking steps. But whether FCC-mandated requirements will help out is another story entirely.

The FCC is seeking public comment on its "proposals" - i.e., the questions set out in the sidebars elsewhere on this page. If you would like to chip in your two cents' worth, the docket is open for comments until September 17, 2007. Replies to those comments are due by October 1, 2007.

PSA proposal:

We propose to require television broadcast licensees to conduct on-air consumer education efforts. Such on-air efforts, we believe, are the most effective and efficient way to reach over-the-air television viewers about the coming digital switch-over. What should these announcements include, and when and how often should they run? Should we impose similar requirements on all television broadcast licensees or should there be distinctions made among licensees? Should the Commission produce an announcement or group of announcements to be used by all broadcasters, or simply provide a list of points that must be conveyed in any compliant announcement? What text or images should the rolling scroll include? Would it be constant or intermittent? On what date would it begin to run, and during which hours would it be required? Would the on-air education requirements increase as the transition date approaches? How would we track the effectiveness of the outreach efforts? Should broadcasters be required to formally assess and report on consumer awareness and preparedness, particularly in certain communities? If so, which communities warrant special attention? Should there be some mechanism for making adjustments in our requirements to reflect these ongoing assessments? Should we adopt certification requirements to ensure that broadcasters are complying? Would forfeitures for noncompliance be appropriate in this area? If so, how would they be calculated?

Reporting proposal:

What level of detail should reports to the Commission on consumer education efforts contain? What additional burdens would preparing, submitting, and retaining such reports place on licensees and permittees? Could these burdens be met by small broadcasters and NCE stations? Is there an alternative to requiring the filing of such reports with the Commission? For example, could broadcasters publicly summarize and describe their consumer outreach efforts via web pages, press releases, in their public file, or otherwise? How would this approach be monitored and enforced by the Commission? What benefits would these reports create for the government and public? How should any forfeitures for noncompliance be calculated?

FCC Proposes Caps for October NCE Filing Window

Bureau issues instructions, guidelines for window filers

In August 9, two items relating to the upcoming filing window for new and major change NCE authorizations were issued.  In a Notice of Proposed Rule Making, the Commission has proposed capping at 10 the number of applications any applicant will be able to file.  The comment and reply comment deadlines, will be established once the NPRM is published in the Federal Register, are short.   Meanwhile, the Bureau issued a public notice setting out the procedures that would apply to window filers, and also providing helpful information concerning the manner in which the Bureau expects to implement its noncommercial comparative analysis.

The NPRM can be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-145A1.pdf, and the public notice can be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-3521A1.pdf.

 The possible need for a cap on applications arises from a number of factors, including: (a) the lack of any filing fee for new NCE permits; (b) the lack of any ownership limits in the NCE band; (c) the fact that, because of a longstanding freeze, no one has been able to file for such permits for more than seven years; and (d) full-service NCE authorizations have considerable value in the marketplace.  Another significant factor is the Commission's experience in 2003, when it opened a window for new FM translator applications.  No cap was imposed during that window, and more than 13,000 applications rolled in the door - by some estimates more five or six times more than the FCC had originally anticipated.  To avoid a similar avalanche of applications - and the significant disruptions that it can cause - the Commission has proposed the following limit:

A party to an application filed in the NCE FM filing window may hold attributable interests in no more than a total of ten applications filed in the window. If it is determined that any party to an application has an attributable interest in more than ten applications, the Bureau will retain the ten applications that were filed first - based on application file number - and dismiss all other applications.  Major modification applications will not count toward the limit.  Pending new and major change applications filed under former licensing procedures also will not count toward the limit.

There is an extremely short opportunity to file comments and replies: 15 days and 25 days, respectively, from the date the NPRM is published in the Federal Register.  Check out the NPRM for the nitty-gritty details governing the filing of comments, or contact us.

The Bureau's public notice does not appear to contain any surprises, but it does put everyone on notice that a freeze on all minor change applications (and amendments thereto) in both the NCE band and Channels 221, 222 and 223 of the commercial band (because of their proximity to, and potential RF impact on, the upper NCE channels) will commence on September 8, 2007 and continue until the close of the window (which is currently set for October 19).

DTV Update

The FCC has released the "final" DTV Table of Allotments, which will replace the current DTV Table at the end of the DTV Transition on February 17, 2009.  The Order adopting the final DTV Table addresses and disposes of a number of individual requests for changes to the table.  We put "final" in quotation marks because, while the Commission uses the term "final" to describe this iteration of the Table, the Order itself includes proposals for a handful of additional changes on which the Commission seeks further comment.  The DTV Table can be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-138A2.pdf  Comments on the changes proposed in the Order will be due within 30 days of publication of the Order in the Federal Register; reply comments will be due 15 days later.
 
At the same time, the Commission extended the deadline for submission of comments in the Third Biennial Review proceeding.  Originally comments were due on August 8th, but in light of the late release of final DTV Table (which could "inform" comments on the Third Biennial Review, according to the AFCCE), the Commission extended the Comment date to August 15, 2007, and the Reply Comment date to August 30, 2007.