FHH Attorneys Show Broadcasting’s Future Leaders the Ropes

The BLT is a 10-month Executive MBA-style program that exposes rising broadcast executives to the fundamentals of successful radio and TV station ownership and operation. Created by the National Association of Broadcasters Education Foundation (NABEF), the BLT is taught by a volunteer faculty of well-regarded industry professionals, so FHH is proud to be represented among so many well-regarded industry names.

The BLT class of 2018 sporting their very own pair of CommLawBlog glasses.

Another class of the brightest and best in the broadcast industry are working their way through the Broadcast Leadership Training (BLT) Program, and FHH attorneys Kathleen Victory, Frank Montero, and Dan Kirkpatrick, once again helped to educate these broadcasting industry leaders of tomorrow.

In two separate classes Kathleen, Frank, and Dan walked their students through the legal and contractual steps involved in purchasing a broadcast station. As has become an annual tradition, at the end of Frank and Dan’s presentation, the BLT students posed for a class photo to show off their stylish CommLawBlog shades (Don’t you wish you had a pair?).

The BLT program, which accepts applications for new students every May, is highly competitive and provides “a blueprint for talented businesspeople to become a greater part of the industry and increase the diversity of voices available to the public.”

For more information, review the BLT website and to apply for next year’s program, click here; applications are due by May 31. If you’re selected for next year’s class…who knows?… you too could be sporting a pair of CommLawBlog sunglasses for yourself…

Attention Commercial Radio Stations: Upcoming Deadline for Eligible Stations to Receive Retroactive Refund of Certain SESAC License Fees

If you are a commercial radio station that authorized the Radio Music License Committee (RMLC) to represent you in negotiations and litigation against SESAC, then you need to act quickly to receive the full fruits of the RMLC’s labor. Unless you return an executed copy of the RMLC-SESAC radio license to SESAC by March 26, 2018 you will not be able to receive a retroactive refund of certain SESAC license fee overpayments thus far.

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Even REALLY Small Satellites Need FCC Licenses

Photo used courtesy of the Creative Commons License

Satellites? What Satellites? Oh, Those Satellites!

We all have our “Oops!” moments – locking ourselves out of the house, losing the passport, missing a stop sign with the police right there… so we know how the folks at Swarm Technologies may have felt after their launch partner put into orbit a multiple-satellite payload, including four belonging to Swarm, and somebody asked, who has the FCC license? I thought you had it! Wait, it must be here somewhere…

But there was no FCC license. And yes, that is a problem.

Many hundreds of CubeSats have successfully launched over the last several years: tiny, cube-shaped satellites measuring four inches on a side. Swarm’s were only about a quarter as big: four inches square and just over an inch thick. Like CubeSats do, they used a “ride-share” launch, hitch-hiking on the excess capacity of a vehicle lifting much bigger satellites. But even small satellites need an FCC license, if they are to communicate through U.S. facilities.

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New Hearing Aid Compatibility Standards to Take Effect March 30

Photo courtesy of JD Mason via the Creative Commons License

This week, the FCC announced that March 30 will be the effective date for amending hearing aid compatibility (HAC) rules. These rules, published in the Federal Register on March 6, were designed to allow those who are hard of hearing to have access to the national telecommunications network and to further implement the Twenty-First Century Communications and Video Accessibility Act. These changes were originally adopted by the FCC in October 2017.

The rules include: an updated wireline HAC volume control standard, an updated volume control for wireless headset standard, and elimination of an obsolete wireless handset standard. The objective of changing these standards, according to the Commission, is to “modernize and improve the ways that Americans with hearing loss can access our nation’s wireline and wireless communications services.”

The new technical standards will change how hearing aid volume is measured. Measurement will now occur via the Head and Torso Simulator (or HATS) method, eliminating the previously used IEC-318 coupler. The HATS method, the FCC found, will take into account how handsets are actually used, especially with regard to the seal between a phone receiver and a user’s ears. Furthermore, amplification standards will be updated to use what is called “conversational gain” where loudness in sound is measured from face-to-face conversation by a distance of one meter. This is intended to eliminate the “variation on maximum amplification levels that results from maximum amplifications being measured relative to each telephone’s nominal sound level.”

The new standards will also require that volume control levels be provided to at least 18dB and no more than 24dB Conversational Gain at the maximum setting.

Finally, the FCC has adopted a proposal to eliminate the 2007 Wireless RF Interference/Inductive Coupling Standard which it deems as “outdated.” The rule now requires that wireless handsets comply with the existing 2011 Wireless RF Interference/Inductive Coupling Standard to “achieve more effective coupling between handsets and hearing aids or cochlear implants.”

As you navigate through these changes, keep up to date on our blog or contact us for more information.

Announcing a New Team Member to our CommLawBlog Team: Sekoia Rogers

Photo by Jason Leung courtesy of the Creative Commons License

Fletcher, Heald & Hildreth, PLC and the CommLawBlog team are thrilled to welcome Sekoia Rogers as the firm’s newest associate starting March 1, 2018. Ms. Rogers joined the firm in September 2017 as a legal fellow after receiving her law degree from American University Washington College of Law in May of 2017. In fact, you’ve already seen her popping up on our blog where she’s written about Net Neutrality, the FCC’s Lifeline Program, and more.

While in law school, Ms. Rogers served as a Senior Articles Editor for the Journal of Gender, Social Policy & the Law. She also participated in the Glushko-Samuelson Intellectual Property Clinic where she worked with small business clients to resolve communications, trademark, and copyright legal issues.

Ms. Rogers’ passion for communications law began during internships with the Federal Communications Commission in the Policy Division of the Media Bureau and with NBCUniversal/Comcast. She is a member of the D.C. Bar; the National Bar Association, Women’s Lawyer Division Greater Washington Area Chapter; and the Federal Communications Bar Association.

“I am looking forward to beginning my legal career at Fletcher, Heald & Hildreth,” Rogers said. “I am also excited to work in the telecommunications, media and technology field among some of the most experienced attorneys.”

“With her skills and background, we are excited to have Sekoia come on board to help us continue providing our clients with the highest quality of service for which our firm is known,” said co-managing member Michelle McClure. “She is a great addition to the Fletcher, Heald & Hildreth team.”

Please join us in giving a warm round of applause to Sekoia!

Political Broadcasting Rules Q&A

With primaries in some states happening as soon as March, the 2018 election cycle is certain to be contentious and hard-fought. Now is the time for broadcasters to review their systems to ensure that they will be in compliance with the FCC’s political advertising requirements. Now that all broadcast stations are required to place political files online, it will be increasingly important for all radio and television stations to ensure compliance with the political broadcasting rules – not just the substantive rules but the recordkeeping portions as well. A little-advanced planning can go a long way in making this election season run smoothly (and, ideally, profitably) for your station.

Photo by Elliott Stallion courtesy of the Creative Commons License

The FCC’s political broadcast rules generally cover: 1) who is entitled to access to broadcast advertising time; 2) how much they pay for that time; and 3) disclosure and recordkeeping requirements. We’ll look at each of those areas below but we highly encourage stations with questions to contact their communications counsel. The FCC’s rules and policies are fairly complicated when it comes to political broadcasting, and the answers to many questions are highly dependent on the specific facts at hand.

Central to understanding and complying with the political rules is the concept of a candidate’s “use” of a broadcast station. As we will delve into in greater detail below, the “use” of a broadcast station by a candidate triggers several potential obligations. Therefore, it is important to know as a threshold matter: a) when someone is a candidate and b) when they are considered to have made a “use” of a station.

Who is a “candidate”?

  • To be considered a candidate a person must:
  • have announced his/her intention to run;
  • be qualified to hold the office he/she is running for; and
  • be qualified to be on the ballot or be eligible to be a write-in candidate.

What is a “use”?

 In general, a “use” is any positive appearance of a candidate whose voice or likeness is either identified or is readily identifiable. The appearance in question does not need to be approved by the candidate or the candidate’s committee to be considered a “use” – third-party ads may trigger a “use,” as can appearances in entertainment programming. The candidate’s appearance on the station must be “positive,” so a third party attack ad against a candidate would not be considered a “use” by that candidate.

Candidate appearances in certain types of programming do not count as “uses.” For example, appearances by a candidate on “bona fide” news, in news interviews, or documentary programs are not considered “uses.” Thus, coverage of a “bona fide” news event, such as a debate or candidacy announcement, does not constitute a “use” even if the candidate is featured prominently in that coverage.

What candidates are entitled to “reasonable access” and what access is “reasonable”?

The FCC’s rules (and the Communications Act) provide that “legally qualified” candidates for federal offices (e.g., President, Vice President, House and Senate) are entitled to “reasonable access” to commercial broadcast stations for the broadcast of advertising. This means that, as a general rule, commercial broadcasters must make time available to candidates for federal offices. Demands for “reasonable access” can only come from a candidate or his/her authorized campaign committee. Third party advertisers and “issue advertisers” do not have reasonable access rights and, as discussed below, neither do candidates for state and local offices.

Photo by Jomar courtesy of the Creative Commons Licence

Although a federal candidate’s reasonable access rights ensure access to a broadcast station’s airtime, federal candidates do not have the right to demand time during specific programs or day-parts. In addition, stations may choose to exclude political advertising from news programming. But, beyond those limited exceptions, the station must offer federal candidates “reasonable” access to the station’s full schedule.

Precisely what degree of “access” is “reasonable” is not always easily determined. Since federal candidates enjoy considerable discretion to tailor their campaigns as they see fit, stations should avoid setting flat limits on the total amount or types/classes of time available to federal candidates. Questions about what is “reasonable” in any given circumstance may need to be referred to legal counsel. In any event, in view of the clear requirement that federal candidates be afforded “reasonable access,” stations should do some advanced planning about the amount of time likely to be required to reasonably accommodate political advertising. (For such planning, it is obviously wise to consider the number of candidates competing for the various federal offices, since a “use” by one candidate can trigger “equal time” claims by others running for the same office.)

In contrast to federal candidates, candidates for state and local office (e.g., mayor, county council, school board, etc.) are not entitled to “reasonable access.” Thus, a station can choose not to sell any time to any candidate for a particular state or local office. BUT if the station does sell time to one candidate for a particular non-federal office, other candidates for that office will be entitled to insist on “equal opportunities” (see below). If a large number of candidates are vying for one particular non-federal office, selling time to one candidate for that office could result in multiple demands for “equal time” from that candidate’s competitors, which could in turn seriously reduce the station’s commercial inventory. That being the case, stations should consider, in advance, the non-federal political races for which advertising time will be made available. Once that determination has been made, any restrictions should be included in the station’s disclosure statements (see below) – and consistently applied. Continue Reading

Above 95 – FCC Hits the Stratosphere

The FCC voted today to issue a Notice of Proposed Rulemaking and Order looking toward issuing licenses for frequencies above 95 GHz. That’s GigaHertz, not MegaHertz – way up there, beyond the highest frequencies that are commonly used today, at least by the private sector.

Historically, frequencies this high were not considered useful for communication transmission. But the radio art has advanced quickly; and Amateurs, who make it their business to advance the state of the art, have been allowed to operate above 95 GHz for years. Today, commercial inventors and entrepreneurs are seriously at work developing ways to exploit higher and higher frequencies. The amount of available bandwidth is enormous; so if the high frequencies can be used, the possibilities for ever-faster wireless broadband and backhaul speeds are significant.

The FCC has proposed to authorize three types of operations: regular licensing, unlicensed systems, and experimental licensing. The structure for licensed systems would be based on the existing system for the 70, 80, and 90 GHz bands, where licenses for point-to-point systems will be issued to anyone who wants them, all for nationwide operation, and without limit on the number of licenses available. All operators will be required to register each of their point-to-point links with one or more private database managers, with protection of links from interference given on a first-come, first-served basis. In other words, each new link must protect those that were registered earlier. The amount of spectrum the FCC hopes to open up for licensed use is 102.2 GHz. Continue Reading

FCC Officially Publishes Net Neutrality Rollback Rule; Will Take Effect on April 23

Well, it’s official: the Open Internet rule, better known as Net Neutrality, will go bye-bye starting April 23.

Today, the hotly debated final notice of the Open Internet Rule (better known as Net Neutrality) was published in the Federal Register. Net neutrality goes away as of April 23 except for certain provisions that require review by the Office of Management and Budget (which will take effect later). The rule rolls back FCC Internet regulations and reclassifies Internet service providers. (For a history of how we got here, read up on our past CommLawBlog posts here.)

However, this doesn’t mean that the fight over the Internet is over just yet. This is an important procedural milestone in the debate over the Internet as it sets in motion on pending challenges to the rule. Already, attorney generals in 22 states have filed lawsuits to block the deregulation of Internet access along with governors in Montana and New York. It is likely more states will follow suit.

The rule follows a Dec. 14 FCC party-line decision to reverse the 2015 Title II Order, which reclassified broadband Internet access as a “telecommunications service.” This decision means that the Internet will now return to its pre-2015 Title I “information service” classification meaning oversight of the Internet will move to the Federal Trade Commission.

The battle of how to regulate (or how not to regulate) the Internet isn’t quite over so stay tuned to CommLawBlog as more developments happen.

FCC Challenges Bitcoin Miner (But Not for Mining Bitcoins)

You know how bitcoins work. Not yet? We’re still coming up to speed. But we do get the part where bitcoins are created by people doing a lot of intensive computation called “mining.” It reminds us of the old Warner Brothers cartoon where a character turns a crank on a machine and dollar bills fly out.

It turns out you can buy that machine, or at least the bitcoin version, and do exactly what the comic book ads used to promise: make money at home in your spare time. The machine, though, comes with a flaw –at least, the unit used by Victor Rosario of Brooklyn did. All digital devices have the potential to create radio interference. Mr. Rosario’s bitcoin miner put out interference strong enough to make trouble for T-Mobile and its Brooklyn customers. T-Mobile called in the FCC, whose direction-finding equipment zeroed in Mr. Rosarios’s home. The FCC sent Mr. Rosario a stern letter directing him to turn off the machine. It also threatened steep fines, seizure, and imprisonment, and asks questions about the device and where Mr. Rosario bought it.

The item caught our eye because it makes a nice addition to our collection down here in the CommLawBlog bunker of “things that really shouldn’t cause radio interference but do anyway.” We’ll put the bitcoin miner next to the well pump, in among the lighting fixtures here, here, and here, and right behind that still-unknown device in a Lemont, Illinois home. (In another room we keep all the jammers, which differ in that they cause interference intentionally: this one and this one and this one and many more.)

Still unanswered: whether, if the FCC does fine Mr. Rosario, he will be allowed to pay the fine from the bitcoins he mined using the machine that triggered the fine.

FCC Opens Up Special Displacement Window for LPTV Stations

Last week the FCC’s Incentive Auction Task Force and the Media Bureau announced the opening of a 60-day filing window for those LPTV stations who are being displaced as a result of the post-incentive auction repacking process. The “Special Displacement Window” applies to certain LPTV stations, TV translators, and analog-to-digital replacement translators. The window will be open from Tuesday, April 10 through Tuesday, May 15 at 11:59 p.m. EST. Once a station has identified which channel it wants – and on which it can operate without causing unacceptable interference — it should file a construction permit application during this filing window.

This special filing window is open to “operating” and “displaced” LPTV/translator stations only. An LPTV is considered “operating” for purposes of this window if it was licensed, or had a license to cover application on file, as of April 13, 2017 – the date on which the incentive auction closed. “Displaced” stations are defined by the Media Bureau as stations that:

  • are authorized on channels that are being taken by a full power or Class A television station in the repacked television band (channels 2- 36) as a result of the incentive auction and repacking process;
  • are licensed on frequencies that will serve as part of the 600 MHz Band guard bands (which includes the duplex gap).

In conjunction with this filing window, the FCC has announced that it is releasing data that, according to the Media Bureau, “identifies locations and channels where LPTV/translator stations filing applications in the Special Displacement Window likely cannot propose displacement facilities because of the presences of non-displaced LPTV/translator stations and permittees, full power and Class A television stations, or land mobile operations.” Displaced stations should consider this information in determining what channels may be available to them in the filing window. Continue Reading