Lucky 13?

Posted on August 12, 2010 by Kathleen Victory

Channel 13 leaves VHF ranks, migrates to UHF, according to some FCC reg fee materials

Here’s another CommLawBlog Reg Fee Tip: if you received one of the FCC’s snail mail reg fee notices, be sure to take it with a grain of salt. It has come to our attention that the fees indicated in those notices may be wrong. 

Not wrong as in incomplete because, say, they didn’t include fees for auxiliary licenses and the like. We knew about that problem (and have mentioned it here before).

No, we’re talking wrong as in, um, wrong. In particular, a number of TV licensees operating on Channel 13(maybe even all Channel 13 stations – we haven’t checked with everybody) have received notices advising them that they owe a reg fee calculated on the basis of the fact that they are operating on a UHF channel. (For any Doubting Thomases, here’s an example, from which we have redacted the identity of the specific station/licensee. We have more where this came from.)  

Hmmmm. Last time we looked, Channel 13 – i.e., the space on the RF spectrum encompassing 210-216 MHz – was in the VHF band, at least as that band is defined by, e.g., the International Telecommunication Union. And the FCC has historically taken the same position (probably because it’s got to, physics being what they are and also being as how the U.S. has been a member of the ITU for more than 100 years now). So unless there’s been some phenomenal warp in the spacetime continuum – like, maybe, a wormhole or something – that might have resulted in Channel 13 growing little RF legs and scurrying over to the UHF band, it’s safe to assume that 13 is still a V and any FCC notice suggesting the contrary is incorrect.

What’s worse, the problem may not be simply in the snail mail notice, but also in Fee Filer. We understand (but have not ourselves personally observed) that the fee automatically calculated by Fee Filer for Channel 13 is also based on UHF, rather than VHF, rates. Contrarily, though, the fee shown on the FCC’s “Fee Lookup” site shows the correct, i.e., VHF-based, number.

Since the reg fee for a VHF TV station in a given market is considerably higher than for a UHF station in the same market, it might be tempting to try to rely on the notice and Fee Filer numbers in calculating the fee to be paid. After all, if the FCC itself says Channel 13 is UHF, who are we to say them nay?

That would probably be a bad idea. As noted, the mistake in the notice and Fee Filer does not appear in the Fee Lookup, which seems to calculate fees based on the more conventional notion that Channel 13 is still in the good old VHF band. And the Commission has admonished that “regardless of the data populated in Fee Filer, the filer is still responsible for reporting and paying for all regulatory fees owed, irrespective of whether all of these fees are identified using this feature.” In other words, while the FCC may be happy to overlook its own mistakes, when it comes to your mistakes, not so much. 

So pardon us if we go all Jiminy Cricket here, but folks confronted with this particular conundrum (or anything similar to it) might want to let their conscience (combined, of course, with a healthy concern about the dreaded Red Light Rules) be their guide and simply ignore the erroneous indications.

The real moral of this story, though, is that even the FCC can make mistakes. Because of that, it is always wise to read materials from the Commission carefully and be prepared to raise questions when something seems amiss.

 
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Reg Fee Tip: Auxiliary Licenses May Not Show Up Automatically

Posted on August 9, 2010 by Davina Sashkin

. . . but you’re STILL required to pay reg fees for them, or else

Reminder to all you DIY reg fee filers: The FCC’s handy “Look-up Website” is not so handy when it comes to broadcast auxiliary licenses (licenses for, e.g., studio-transmitter links, remote pickups, etc.). When you query the “Look-up” for the fees you owe, it does not include records for auxiliaries. This can be problematic because Fee Filer will not necessarily pull up your auxiliary licenses when you punch in your FRN, either. (Our Fee Filer experience on that score has been at best hit-and-miss.)

There is a $10 reg fee for each auxiliary license that the FCC has you down for. In other words, if the FCC thinks you have an auxiliary, you owe the fee for it, even if it turns out that you don’t use that particular auxiliary and might even have forgotten about it. Because of that, it’s always a good idea to check both your records and the Commission’s, to make sure you have an accurate handle on just what licenses (auxiliary and otherwise) you’re on the hook for. And then, of course, you should be sure to include those licenses when paying your fees.

Failure to pay the fee for auxiliaries can end up being costly down the road. The late fee (25% on each late $10 auxiliary reg fee) is probably not going to kill you, as long as the lateness is limited to auxiliaries. But failure to pay any reg fee can trigger the FCC’s Red Light Rule, which can in turn have unpleasant, and possibly dire, consequences down the line.

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2009 Reg Fees: A Break For Some DTV Stations

Posted on August 6, 2009 by Anne Goodwin Crump

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.
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