FCC IMPOSES $38,000 FINE FOR PREMATURE CONSTRUCTION OF ANTENNA TOWERS

Recently, the Federal Communication Commission (“FCC”) issued a Consent Decree detailing the $38,000 settlement reached with a telecommunications company relating to its  failure to complete required environmental and historic preservation reviews before beginning construction on new wireless telecommunications towers and prior to following the prescribed procedures under the FCC’s antenna structure registration (“ASR”) Rules.

Under the FCC’s environmental rules, both applicants and licensees must assess, prior to construction, whether most proposed facilities such as antenna towers may significantly affect the environment including those facilities:  (i) to be located in an officially designated wilderness areas or wildlife preserves; (ii) that may affect listed threatened or endangered species or critical habitats; (iii) are likely to jeopardize the continued existence of any proposed endangered or threatened species; or (iv) are likely to result in the destruction or adverse modification of proposed critical habitats.  Additionally, applicant and licensees are required to consider, prior to construction, whether their proposed facilities may affect districts, sites, buildings, structures, or objects that are listed, or eligible for listing, in the National Register of Historic Places, all the while following the prescribed procedures set forth in the rules of the Advisory Council on Historic Preservation, or, if applicable, the Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process.  Finally, under the FCC’s ASR Rules, applicants and licensees are required to follow the prescribed registration procedures set forth in section 17.4 of the Rules prior to construction or alteration of an antenna tower if the proposed structure either (i) exceeds 200 feet above ground level; or (ii) may interfere with the flight path of a nearby airport.

Here, the telecommunications company James Valley Cooperative Telephone Company began construction on six new antenna towers in Brown County, South Dakota one month prior to submitting antenna structure registrations under the ASR Rules and four months prior to submitting the required environmental and historic preservation review forms.  The company ultimately admitted that it began construction on five of the six towers before completing the required environmental and historic preservation reviews and that it began construction on the last tower before applying for an antenna structure registration, in violation of the Rules.  As a result of these admissions in the Consent Decree, the firm was required to (1) pay a civil penalty of $38,000 and (2) implement an FCC approved compliance plan.

While the civil penalties for violations such as those discussed above can certainly be quite costly, the implementation of a compliance plan can add to those costs, as FCC ordered compliance plans present significant upfront and ongoing regulatory costs, including: developing an approved compliance plan and manual, training management and employees, monitoring and reporting both compliance and noncompliance, attorney fees, filing fees, and more.

It is therefore critical that applicants and licensees ensure compliance with all necessary statutes and regulations and receive all necessary approvals before they begin construction on any most antenna structures.  The best way to ensure one does so is through retaining experienced and effective counsel, from the initial planning stages of a project on through completion.  If you have questions about the FCC’s antenna structure construction and registration review process, do not hesitate to contact a Fletcher, Heald & Hildreth attorney.

2022 Upcoming FCC Deadlines

 

2022 Upcoming Broadcast Deadlines

 

September

Annual Regulatory Fees – On a date not yet determined, but certainly before September 30, 2022, annual regulatory fees will be due. These will be due and payable for Fiscal Year 2022 and will be based upon a licensee’s/permittee’s holdings on October 1, 2021, plus anything that might have been purchased since then and less anything that might have been sold since then. The fees must be paid through the FCC’s online Fee Filer, and once again, this year, the FCC will not accept checks as payment of the fees but will require some form of electronic payment (credit card, ACH transfer, wire transfer, and the like). Please keep in mind that timely payment is critical, as late payment results in a 25 percent penalty, plus potential additional interest charges.

September 6, 2022

Repack Invoices Due – The third and last invoice filing deadline was set for September 5, 2022. Because Labor Day, a federal holiday, falls on Monday, September 5, 2022, the third and last invoice filing deadline is Tuesday, September 6, 2022. All MVPDs, FM stations, and LPTV/translator stations who intend to seek reimbursement must submit all remaining invoices and supporting documentation using the Reimbursement Form, and initiate interim close-out procedures, no later than September 6, 2022. We urge all entities in the program to initiate interim close-out procedures as soon as they complete their construction projects and have incurred and submitted invoices for all of their reimbursable costs.

October 3, 2022

EEO Public File Reports – All television station and radio employment units with five or more full-time employees and located in Florida, Puerto Rico, Virgin Islands, Iowa, Missouri, Alaska, Guam, Hawaii, Oregon, American Samoa, Mariana Is., and Washington must place EEO Public File Reports in their OPIFs. For all stations with websites, the report must be posted there as well. Per FCC policy, the reporting period may end ten days before the report is due, and the reporting period for the next year will begin on the following day.

Television License Renewal Applications Due – Applications for renewal of license for television stations located in Alaska, Hawaii, Oregon, Washington, Guam, Mariana Is., and American Samoa must be filed in LMS. These applications must be accompanied by Schedule 396, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees. Under the new public notice rules, television stations filing

renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks. Once complete, a certification of broadcast, with a copy of the announcement’s text, must be posted to the online public inspection file within seven days.

October 11, 2022

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, listings of each station’s most significant treatment of community issues during the third quarter of 2022 (July, August, September) must be placed in the station’s online public inspection file. The lists should include brief narratives describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program with a brief description of the program. The issues may be either local or national, so long as they are of concern to the local community.

December 1, 2022

Television License Renewal Applications Due – Applications for renewal of license for television stations located in Connecticut, Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island must be filed in LMS. These applications must be accompanied by Schedule 396, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees. Under the new public notice rules, television stations filing renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks. Once complete, a certification of broadcast, with a copy of the announcement’s text, must be posted to the online public inspection file within seven days.

EEO Public File Reports – All television station and radio employment units with five or more full-time employees and located in Alabama, Georgia, Colorado, Minnesota, Montana, North Dakota, South Dakota, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must place EEO Public File Reports in their online public inspection files. For all stations with websites, the report must be posted there as well. Per FCC policy, the reporting period may end ten days before the report is due, and the reporting period for the next year will begin on the following day.

 

2022 Upcoming Telecommunications Deadlines

 

September 1, 2022

FCC Form 477 – Attention to all facilities-based providers of broadband service to end user location, local exchange carriers providing local telephone service, interconnected VoIP providers, and mobile telephony service providers that are not solely resellers. FCC rules require that certain entities must report information concerning broadband connections to end users locations and wired/wireless local telephone services in order to describe the deployment of broadband infrastructure and competition to provide local telecommunications services.  Data is reported on a state-by-state basis where such services are provided.  See 47 C.F.R. § 43.11.  See also Local Telephone Competition and Broadband Reporting, Report and Order, 19 FCC Rcd. 22340 (2004).  The Form 477 is filed twice a year on March 1 and September 1.

Annual Regulatory Fees – On a date not yet determined, but certainly before September 30, 2022, annual regulatory fees will be due. These will be due and payable for Fiscal Year 2022 and will be based upon a licensee’s/permittee’s holdings on October 1, 2021, plus anything that might have been purchased since then and less anything that might have been sold since then. The fees must be paid through the FCC’s online Fee Filer, and once again, this year, the FCC will not accept checks as payment of the fees but will require some form of electronic payment (credit card, ACH transfer, wire transfer, and the like). Please keep in mind that timely payment is critical, as late payment will incur a 25 percent penalty, plus potential additional interest charges.

November 1, 2022

FCC Form 499-Q – Attention to all telecommunications providers, including resellers and interconnected VoIP providers.  Telecommunications providers and interconnected VoIP providers must file quarterly to report prior-quarter historical revenue and next-quarter projected revenue. Projected revenue is used to calculate the amount of USF contributions invoiced to the provider in the coming quarter.  Filers that would owe less than $10,000 in USF contributions annually based upon projected quarterly revenue data (annualized by multiplying by four) are considered “de minimis” and would not be required to file the Form 499-Q.  However, filers must maintain documentation to substantiate this de minimis determination on a quarterly basis. The FCC Form 499-Q is due quarterly by February 1, May 1, August 1 and November 1.  See 47 C.F.R. § 54.706(b).  Revisions to the Form 499-Q are due 45 days after the initial filing deadline.  Total annual USF contributions are subject to a true-up process based upon the FCC Form 499-A due April 1.  Wholesale providers should also verify a reseller’s USF contributor status quarterly at http://apps.fcc.gov/cgb/form499/499a.cfm prior to filing the Form 499-Q.

Court Strikes Down a Portion of the FCC’s Foreign Sponsorship Identification Rules for Broadcasters

Earlier this year, new FCC rules went into effect requiring radio and television stations to broadcast Sponsorship ID disclosures for programming provided by foreign governmental entities.   Yesterday, the federal Court of Appeals for the D.C. Circuit struck down one part of those requirements:  the requirement for broadcasters to independently confirm the sponsor’s status by consulting with two federal government databases.   The remaining requirements were not addressed or struck down by the Court, and remain in effect.

The new rules require broadcasters to undertake a five-step process whenever they lease airtime to a sponsor:

1) tell the sponsor about the foreign sponsorship ID disclosure requirement;

2) ask the sponsor whether it is a foreign governmental entity or an agent of one;

3) ask the sponsor whether anyone further back in the production or distribution chain is a foreign governmental entity or an agent of one;

4) independently confirm the sponsor’s status, at both the time of the lease of time on the station(s) and the time of any renewal, by checking the Department of Justice’s Foreign Agents Registration Act website and the FCC’s U.S.-based foreign media outlets reports; and

5) document those inquiries and investigations, in case of a future inquiry from the FCC.

The National Association of Broadcasters appealed the fourth requirement to independently confirm the sponsor’s status, arguing that particular requirement went way beyond the FCC’s statutory authority under Section 317(c) of the Communications Act.   Section 317(c) provides that “licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make” sponsorship ID announcements.

The Court agreed with the NAB, finding that Section 317(c) of the Act authorizes only a “narrow duty of inquiry” for broadcasters.  The Court noted that in Section 317 “the ‘to obtain’ clause means broadcasters do not need to exercise diligence in general. And the two ‘from’ clauses mean broadcasters do not need to make a diligent effort to obtain the information from any possible source. They simply need to be diligent in their efforts ‘to obtain’ the necessary information ‘from’ employees and sponsors.”   In contrast, the Court noted that the contested requirement “instead tells a broadcaster to seek information from two federal sources in addition to the two sources that the statute prescribes. That is not the law that Congress wrote.”

So, what now?   The Court struck down the fourth requirement, and did not remand it to the FCC to revise that requirement.   It thus appears that the fourth requirement is no longer enforceable by the FCC, and that stations are no longer required to fulfill the fourth requirement.   Of course, the FCC may come back and try to enact some new additional requirement similar to the fourth requirement, but we will have to wait and see on that. In the meantime, though, stations do have to comply with the remaining requirements (items 1-3 and 5, above).  Here is a link to our prior Commlawblog article on how to do that.  And in doing so, stations should follow the mandate of Section 317(c) to exercise “reasonable diligence” in making inquiries not only to program sponsors, but also to station staff that have been in communications with the sponsor, or who may have knowledge about the sponsor.

We will keep you informed on any further developments in this proceeding.  In the meantime, please contact us if you have any questions.

What’s Next for Next Gen TV? FCC Seeks Comments on The Status of Next Gen TV and Sunset of Two Rules.

The FCC has just released a Third Further Notice of Proposed Rulemaking (FNPRM) https://docs.fcc.gov/public/attachments/FCC-22-47A1.pdf seeking comments on the state of the Next Generation Television (“Next Gen TV” or “ATSC 3.0”) transition, and on the scheduled sunset of two rules adopted in 2017.  Generally, the FNPRM seeks comments on the progress of broadcasters’ voluntary deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace, including whether holders of essential patents for the ATSC 3.0 standards are licensing such patents on reasonable and non-discriminatory terms.  In addition, comments are sought on the scheduled 2023 sunset of the rule requiring that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream.  Lastly, the FCC seeks comments on the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the “ATSC A/322” technical standard.

        I. Background

Next Gen TV is the most recent broadcast TV transmission standard, which enables broadcasters to deliver new video and non-video services and enhanced content features to consumers.  Also known as “ATSC 3.0,” this standard merges the capabilities of over-the-air broadcasting with the broadband information delivery methods of the Internet, using the same 6 MHz channels presently allocated for traditional digital television (DTV) service.  The greater spectral capacity of the ATSC 3.0 standard and its Internet-Protocol  delivery component allows broadcasters to provide consumers with a higher quality television viewing experience, and has the potential to enable broadcasters to reach viewers on mobile screens as well as home TVs.  In addition, ATSC 3.0 allows broadcasters to offer enhanced capabilities, such as geo-targeting of emergency alerts and “hyper-localized” specific programming (including commercial advertisements), as well as to offer one-way datacasting services.

In November 2017, the FCC authorized television broadcasters to use the Next Gen TV transmission standard on a voluntary, market-driven basis.  However, the Commission required that broadcasters voluntarily deploying ATSC 3.0 service must continue to air at least their primary stream using the current-generation DTV transmission standard (“ATSC 1.0”) to their viewers through “local simulcasting” arrangements with other stations in their local market. This requirement was intended to minimize viewer disruption, since the Next Gen TV standard is not backward-compatible with pre-existing TV sets or receivers with ATSC 1.0 (or analog) tuners. At the same time, the Commission also adopted a requirement that the programming aired on a Next Gen TV station’s ATSC 1.0 simulcast channel be “substantially similar” to that of the primary video programming stream on the ATSC 3.0 channel:  the programming must be the same, except for programming features that are based on the enhanced capabilities of ATSC 3.0 and promotions for upcoming programs.  This “Substantially Similar Rule” was intended to ensure that viewers do not lose access to their broadcast programming.  In order not to impede technical or programming innovations, though, the Substantially Similar Rule was set to sunset on July 17, 2023, unless extended by the Commission.

In regards to the Next Gen TV broadcast transmission standard, in 2017 the Commission required compliance with only two parts of the ATSC 3.0 suite of standards:  (1) ATSC A/321:2016 “System Discovery & Signaling” (A/321), which is the standard used to communicate the RF signal type that the ATSC 3.0 signal will use; and (2) A/322:2016 “Physical Layer Protocol” (A/322), which is the standard that defines the waveforms that ATSC 3.0 signals may take.  While this was to promote uniformity and incent the manufacture of equipment, the Commission decided that it was not appropriate at the time to require broadcasters to adhere to A/322 indefinitely, since the “ATSC 3.0 standard could evolve, and stagnant Commission rules could prevent broadcasters from taking advantage of that evolution.” Accordingly, the Commission ruled that the requirement to comply with the A/322 standard would expire on March 6, 2023, unless the Commission acted to extend it.

Lastly, in regards to licensing of patented ATSC 3.0 technology, the FCC originally recognized that the Advanced Television Systems Committee (ATSC), which developed the ATSC 3.0 standards, required patent holders to license the technology on reasonable and non-discriminatory terms.   But the FCC never developed specific rules to enforce this.

        II. Third FNRPM

The recently released Third FNPRM seeks comments on a number of broad issues:

A. Review of the ATSC 3.0 Marketplace 

It has now been over four years since the FCC authorized the provision of ATSC 3.0 service.   How has the marketplace developed?  The FNPRM seeks comments on five aspects of the deployment:  “(1) voluntary deployment of ATSC 3.0 service by broadcasters and the continued availability of ATSC 1.0 programming; (2) availability of ATSC 3.0 consumer TV sets and equipment; (3) consumer viewership of ATSC 3.0 signals; (4) MVPD carriage of ATSC 3.0 signals; and (5) status of ATSC 3.0 patent licensing.”

It will be interesting to see how the major entities promoting Next Gen TV describe the market place, as opposed to parties that feel that the marketplace has not had a chance to significantly develop, or that development has been stunted either by technology, economics or by business practices.

B. The Substantially Similar Rule

The FNPRM seeks comments on whether to retain the Substantially Similar Rule, or permit it to sunset in 2023.  As the FCC noted when adopting the requirement, “the purpose of the rule, in conjunction with the underlying requirement to simulcast in 1.0, is to protect 1.0 viewers from losing access to a Next Gen TV station’s programming when that station transitions its facility to 3.0.  While the underlying requirement that a Next Gen TV broadcaster must air a 1.0 signal (when deploying 3.0) ensures 1.0 viewers continue to receive some free OTA TV service during the transition, the substantially similar rule ensures that 1.0 viewers actually receive the same primary video programming as that aired on the 3.0 channel.”

We expect to see arguments on both sides of this issue, with some commenters urging the FCC to eliminate the rule to promote innovation and a free marketplace, and others urging extension of the rule to protect viewers.

C. The Requirement to Comply with the ATSC A/322 Standard.

The FNPRM seeks comments on whether to retain the requirement that Next Gen TV broadcasters’ primary video programming stream comply with the ATSC A/322 standard and, if so, for how long.   Additionally, if the FCC retains the requirement, should there be a new sunset date?  Here, the Commission must seek to balance providing certainty to consumers, television receiver manufacturers, and MVPDs, against the needs of technical innovation.  The FNPRM also notes that that the ATSC has updated the A/322 standard, most recently in 2021, with only ministerial but no substantive changes.  Perhaps the best approach would be for the FCC to follow the ATSC.

**********

                The comments to this FNRPM may have a significant impact on the development of the TV industry.   If you want more information on this proceeding, please contact your Fletcher Heald attorney.

FCC Sets Comment Period for Franken FM NPRM

The FCC has set the comment period in the FM6 (a/k/a Franken FM) proceeding.  Comments with respect to the FCC’s May 18th Notice of Proposed Rulemaking (NPRM) will be due on July 18th, 2022. Reply comments will be due on August 1, 2022. Those who wish to comment should refer to the filing instructions provided in paragraph 60 of the NPRM.

As discussed in our prior blog post, this NPRM concerns the future of FM6 stations, which are channel 6 LPTV stations providing analog audio. The Commission is weighing a proposal that would allow existing FM6 stations to continue operating subject to certain restrictions, but would not allow any new ones.

If you have any questions regarding this rulemaking or its impact, contact your Fletcher, Heald & Hildreth attorney.

Repacked Stations: Final Deadline for Submitting Invoices for Reimbursement

The Incentive Auction Task Force and Media Bureau (Bureau) has released a public notice reminding all low power TV and TV translator (LPTV/translator) stations, multichannel video programming distributors (MVPDs), and FM stations that they must submit all remaining invoices in the TV Broadcaster Relocation Fund no later than September 6, 2022.  All licensees are encouraged to submit invoices and initiate close-out procedures as soon as possible, however.

The FCC initially announced the close-out procedures on February 16, 2019 and announced the upcoming deadline in October 2020. Since entities were given ample notice of deadlines, extensions of the assigned invoice submission are only being granted to entities who provide evidence that circumstances requiring the extension were outside of its control.

An entity’s failure to complete construction in a timely manner and to make final submissions by the assigned deadlines could preclude that entity from receiving full reimbursement because unobligated amounts in the Fund must be rescinded to Treasury by July 3, 2023.

The Fund Administrator will initiate close-out for any entity that has failed to initiate the process by the invoice filing deadline assigned to that entity. Any unused allocations made to that entity’s account will be returned to the Fund and made available for allocation to other program participants.

Participants must retain documents for a period ending 10 years after the date they receive their final payments from the Reimbursement Fund. Additionally, entities may be selected for audits, data validations, and site visits at any time during the repack and reimbursement process.  All participants should be prepared to demonstrate that invoices submitted for reimbursement were actually paid.  As a part of participants’ close-out procedures, the Commission has been requesting proof of payment of a sample of the invoices for which reimbursement was made.  It is important that all reimbursement amounts received match up with payments actually made, or the FCC may demand the return of any amounts in excess of expenditures.

 

Should you have any questions about the invoice submission, please contact your friendly attorneys at Fletcher Heald & Hildreth.

FCC Considering Future of FM6 Stations

When the Federal Communications Commission meets on June 8, it is slated to issue a Notice of Proposed Rulemaking regarding FM6 stations, commonly referred to as “Franken FMs.”  The FCC has released a draft of the Notice of Proposed Rulemaking that is expected to be adopted at its June 8th meeting. This will be the fifth round of rulemaking regarding FM6 stations.  The proposal the Commission is considering would allow existing FM6 stations to continue to operate, but prohibit any new FM6 stations.

FM6 stations refer to channel 6 LPTV stations that provide an analog radio service that typically can be received on a standard FM receiver on about 87.7 MHz.

Since July 13, 2021, when all TV stations (including LPTVs) were required to cease analog video operations, the FCC has allowed certain Channel 6 LPTV stations operating with a  digital ATSC 3.0 format to continue providing an analog audio  “as an ancillary or supplementary service” pursuant to engineering STAs.  Those STAs impose several significant conditions.  By the FCC’s count, 13 such stations are currently operational.

The potential proposed rule under consideration by the Commission would effectively codify some of the current restrictions for currently operating FM6 stations and limit Franken FMs to those currently operating pursuant to STAs. The proposed restrictions include:

  • The stations must already be operating pursuant to an STA
  • The stations must have converted to ATSC 3.0 digital operations
  • The stations’ analog radio operations could only be conducted on 87.75 MHz
  • The stations may not interfere with any other users
  • The station’s programming may not exceed its LPTV coverage area
  • TV station must provide at least one stream of synchronized video and audioprogramming on the ATSC 3.0 portion of the spectrum at any time the station is operating
  • The stations’ technical facilities may not be modified
  • The stations may not be assigned or transferred

These provisions deviate slightly from the current STA restrictions, replacing the current requirement that similar populations be reached with the requirement that the FM6 coverage may not exceed the LPTV’s coverage area. The rule under consideration would not require written reports on compliance as required by the STAs, and replace a requirement that there must be one stream of synchronized audio and video 24/7 to one stream of synchronized audio and video any time the station is operating.

In addition to the above proposal, the Commission also seeks comment on whether to completely eliminate Television 6 (TV6) distance separation rules for Low Power FM radio, NCE FM Radio, Class D FM radio, and FM translator stations operating on the reserved band FM channels 201-220, or to revise and update for the post-digital transition. Proponents of this idea argue that because digital receivers are less vulnerable to FM induced TV6 interference, these rules are no longer necessary. The Commission notes that they have not received reports of interference to either TV or radio stations, but that the lack of reports poses the question of whether these rules are in fact unnecessary or they are just working as intended.

The Commission is also considering the adoption of a plan that would repurpose television channel 6 spectrum (82-88 MHz) for FM services. Instead of using the spectrum currently used by FM6 channels for TV, this spectrum could potentially accommodate up to 30 new FM stations. Proponents of this plan argue that this is a more efficient use of spectrum and that more channels would increase the diversity of programming offered. The Commission is seeking comment on potentially repurposing the channels, and specifically whether these potential new channels should be reserved for NCE stations.

In the proposed rulemaking, the Commission seeks to balance the concerns of a variety of broadcast groups. Among the issues they seek comment on are interference to other stations, efficient use of spectrum, and the preservation of local community programming broadcasted on these FM6 stations. If you have any questions regarding this rulemaking and its impact, contact your Fletcher, Heald & Hildreth attorney.

FCC Announces Legacy CORES to be Decommissioned July 15, 2022

On Friday, May 27th, the FCC issued a Public Notice announcing that the Legacy Commission Registration System (Legacy CORES) – currently used to obtain and update FRNs for individuals, licensees and other entities doing business with the FCC – would be decommissioned on Friday, July 15th, 2022 at 6pm. After that time, the current Commission Registration System (CORES2)- which has been available for use since 2016 – will be the only system available for obtaining and maintaining an FRN and will be used for all FRN-related transactions.  Users who have not already obtained a username and password in CORES2, will need to register with in CORES2 before July 15th to gain online access and manage their FRNs.

The Commission will continue to allow access to other Commission systems, including CORES2, using the FRN and password established in Legacy CORES. However, Users will be required to obtain a username and password through the FCC User Registration System as the Commission continues to update their systems. Once a CORES2 username and password are obtained, users may associate their FRNs with their CORES2 usernames.

For users with outstanding fees, the transition of that fee data to CORES2 will be staggered. Annual Regulatory Fees will transition on July 15th, 2022; Red Light Status Detail will transition August 5th, 2022; Universal Licensing System Payments will transition August 26th, 2022, and Application Fee Payments will transition November 18th, 2022.

For users who are not already registered in CORES2 and need assistance preparing for this transition, contact your Fletcher, Heald & Hildreth attorney.

Depp v. Heard – a Brief Legal Overview

Social media has been exploding with news about the defamation trial between Johnny Depp and Amber Heard in Fairfax County, Virginia. Fletcher, Heald  attorneys have considerable experience with this court and this type of claim. As such, we thought our Commlawblog readers might be interested in a breakdown of what is really going on here and why.

First, what is this case about?  Although one might think from social media that the case is about spousal abuse, that is really only an element of the proof necessary for the actual claims by each.  Despite the troubling testimony suggesting abuse by both parties, this case is actually more about reputational rather than physical harm.  Depp claims that he was defamed by Heard by three separate means – (1) through an online OpEd  that she wrote that was published in the Washington Post on December 18, 2018; (2) the publication of a print version of that same OpEd; and (3) by Heard’s retweeting of a link to that piece on December 19, 2018.  Heard, in turn, has a counterclaim based upon (1) Virginia’s Anti-SLAPP statute for defendants who believe that lawsuit was filed to intimidate; (2) defamation through statements made by Depp’s attorney, allegedly at Depp’s direction, in a Gentleman’s Quarterly (GQ) article dated November 2018; and (3) violation of Virginia’s Computer Crimes Act for harassment by computer through an alleged nationwide campaign to “harass, abuse, and discredit” Heard.

Second, why is the trial occurring in Fairfax County, Virginia given that neither of the parties live in Virginia (both are residents of California) and none of the alleged abuses occurred there?  The answer is twofold – first the Washington Post is printed in Springfield, Virginia, the digital version of the paper was created on a digital platform in Virginia, the newspaper “has wide circulation in Virginia and even publishes a Virginia local edition in which” the alleged defamatory statements appeared, and the Washington Post maintains two physical offices in Virginia.  Second, Depp contends that Heard “published the false and defamatory op-ed to promote her new movie which was in Virginia theatres for viewing by Virginia audiences.”

But even with that, why pick Virginia? The more likely reason is the perception, whether right or wrong, that Virginia has more a plaintiff-friendly defamation law and the perception that Virginia has a relatively weak “Anti-SLAPP” statute.  In fact, Virginia has been used in the past by other public figures to file defamation claims in cases that would be rejected in other jurisdictions, including by former Congressman Devin Nunes against Twitter, the New York Times, and CNN.

What do Depp and Heard have to prove in order to establish “Defamation” under Virginia law?   

To prevail in a defamation suit under Virginia law, a plaintiff need only establish the following:

1) the “publication” of

(2) an “actionable statement”

(3) made with the “requisite intent.”

The statements must be demonstrably false in order to be considered “actionable.” Furthermore, the statements must be factual in nature to be actionable.  By contrast, expressions of opinion are expressly protected by the First Amendment.

In the Depp case, the first element is easily established for both parties. The statements were made in the Washington Post and GQ, as well as in social media. “Publication” merely means that the statements were disseminated beyond just the two parties to the lawsuit.  However, the second and third elements are where there will be disputes.

Under the second element, a statement is only “actionable” if it is false.  Therefore, it will be up to the jury to determine whether the implied statement of Heard (if it is reasonably implied at all) that Depp was “abusive” was false.  As for Heard’s claim, she will have to prove to the jury that Depp’s counsel’s statement (if it was directed by Depp) that her statements were a “hoax” was false.  It would seem unlikely that both statements could be true.  In each case, the burden of proof to convince the jury that the statement is false is on the plaintiff.  A tie goes to the  defendant.

As for the third element, “requisite intent,” under U.S. Supreme Court precedent regarding statements on matters of public concern, a plaintiff must prove “actual malice” before damages can be awarded.  Under the landmark case of NY Times vs Sullivan, a finding of actual malice requires that the statement be made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

In this case, both Depp and Heard would have to prove that the other specifically intended to cause harm in making these statements.  Given that Heard did not use Depp’s name in the OpEd, this may be tougher for Depp than Heard since the GQ statements made by Depp’s attorney mentioned Heard by name.  In the end, in both cases, the decision will come down to who does the jury believe more – Depp or Heard.

Why is there a week long pause in the trial?  This case was filed in March 2019.  Due to Covid, the trial was pushed off several times, as were all trials in Fairfax County, Virginia (including several for which Fletcher Heald was counsel).  Every year, the judges of Fairfax County have a Judicial Conference in which they discuss matters of concern between the fifteen judges on the court.  That conference was scheduled long ago for the week of May 9, 2022.  In order to obtain a beginning trial date in April 2022, the parties had to agree to this pause in the jury trial.

How long will the trial last?  This is one of the longest trials ever conducted in Fairfax County Circuit Court.  The trial began on April 12 and the trial judge has promised the jury that closing arguments will occur on May 27, before Memorial Day weekend.  Given that they will just receive the case before Memorial Day, the jury will have to return after Memorial Day to consider the verdict, which will likely be rendered that week.  No matter the final decision, the case will likely have profound effects both on the common law of defamation and legislation in both Virginia and beyond.    If you have questions about filing or defending a lawsuit in Virginia state or federal courts, do not hesitate to contact Fletcher Heald attorneys.

FCC to Update Rules to Allow Digital Generation and Verification of Antenna Directional Patterns

The FCC has released a draft Report and Order to amend its broadcast radio rules to allow the use of computer models to verify antenna directional patterns. Barring unexpected developments, the Report and Order will be adopted during the Commission’s May 19th open meeting

This proposed rule changes are great news for applicants – under the prior rules, applicants were required to submit tabulation of plot and measured relative field patterns of a directional antenna by building a mockup or scale model of the antenna and supporting structures. Instead of building these structures, applicants will now be able to use computer models—substantially decreasing the cost and time of pattern verification.

The great majority of commenters favored computer modeling, noting positive results on the accuracy of computer modeling. Although engineering firms will not be able to charge as much for directional antenna verification, several firms did support this proposal.

This rule change brings FM and LPFM stations into conformity with AM and DTV station licensing, which already allow for computer modeling to verify directional antenna performance. However, an important distinction from the AM and DTV rules are that FM and LPFM computer models must be performed by the antenna manufacturers. That limitation does not apply to AM and DTV applicants. The Commission did not set requirements for what software products must be used in this modeling, only that commercially available software be identified and custom software include a description of the software and methods sufficient for potential replication.

The Commission emphasizes that these rule changes will provide for more accurate proofs of performance and decrease the time and costs of verification for applicants. As you prepare to file license applications for FM and LPFM antennas, contact your FHH Law attorney for the most up-to-date requirements.

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