Barreling Down the Road to 5G, FCC Votes to Relax EBS Spectrum Rules

On June 20, 2019, I blogged about the Federal Communications Commission’s (“FCC”) plan to vote on July 10 to relax the rules governing the Educational Broadband Service (“EBS”), including eliminating the requirement to devote part of the air time to educational purposes and opening up license eligibility to commercial entities. Sure enough, the FCC voted, and the proposed rule changes were adopted, although the Commissioners split along political party lines.

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FCC Makes Leased Access Rules More Cable Operator Friendly, Opens the Door to Eliminating Them

On June 7, 2019, the Federal Communications Commission (“FCC” or the “Commission”) released a Report and Order (“R&O”) revising the Commission’s rules under which independent programmers may lease cable TV channels to retransmit their programming (“Leased Access Rules”).   Leased Access has rarely been used, due to concerns by both cable operators and programmers, and the recent revisions may make Leased Access even less attractive to programmers.   Furthermore, in a Second Further Notice of Proposed Rulemaking (“FNPRM”) attached to the R&O, the Commission seems to be opening up a proceeding to eliminate the Leased Access Rules in their entirety based on the widespread availability of Internet platforms for distribution of video programming. Continue Reading

New Developments in Broadband – June

Capitol Hill

We continue to expect that House Democrats will pass their “Leading Infrastructure for Tomorrow’s America Act” (LIFT America Act) infrastructure proposal, however, any deal with President Trump on infrastructure remains on hold.  The House bill includes $45 billion in broadband funding – $30 billion in reverse auction funds to be administered by the Federal Communications Commission (“FCC” or the “Commission”), $10 billion in reverse auction funds to be administered by the states, and $5 billion in federal loans and loan guarantees to be administered by National Telecommunications and Information Administration (NTIA).

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Taking the Same Slant on the Lanham Act for the Second Time in Two Years, Supreme Court tells USPTO to Go Ask Congress to Try Again

Let’s get this out of the way: this blog post is going to include an unseemly, in my mind,  profane, even obscene, term.  I’m just going to put it out there up front, even though I think it’s one of the worst things you can say.  And no, the First Amendment doesn’t protect it.

It’s “viewpoint discrimination.”  Even writing it makes me uneasy.

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Supreme Court SNAPS back Against Access to Information

I was one of many who traveled (in my case, on foot) to the United States Supreme Court on April 22, 2019 to watch oral arguments in the case of Food Marketing Institute, Inc. v. Argus Leader.  I was there because two of my clients joined an amicus brief in support of the newspaper’s fight for access to records about the Supplemental Nutritional Assistance Program (SNAP) and because the case held a greater meaning for anyone interested in the Freedom of Information Act (FOIA), as this was the first time the Court would be exploring the breadth of FOIA Exemption 4 (which I’ll describe in greater detail below).  I had a distinctly negative feeling about the likely outcome of the case when the hour was up; my gut instinct was confirmed on June 24, 2019, when the court, in a written by Justice Gorsuch, not only narrowed the scope of Exemption 4 but also appeared to attempt to redefine the fundamental nature of the law itself. Continue Reading

Upcoming FCC Broadcast and Telecom Deadlines for July-September

Broadcast Deadlines:

July 3, 2019:

Emergency Alert System National Test – Participants’ EAS Test Reporting System (ETRS) Form One Due – In preparation for this year’s national EAS test on August 7 at 2:20 p.m. EDT, all EAS participants must file ETRS Form One, which sets forth the EAS equipment that the participant has and other details of its operation, by July 3.

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Supreme Court Rules that Public Access Television is Actually Private

As we neared the end of the 2018-2019 Supreme Court term, I was watching with bated breath for the issuance of three opinions relevant to my work and, I assumed, to the interests of our CommLawBlog readers. The cases affected my interests in distinctly different ways:  from my “extracurricular” activities to the participation of clients in the proceedings to my penchant for the occasional, intentionally disruptive profanity work on trademark and First Amendment issues.  I’ve provided a teaser of the second (Food Marketing Institute v. Argus Leader) and third (Iancu v. Brunetti) in our CommLawClarified video series and we’ll be publishing actual blog posts about these soon.

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Equal Employment Opportunity Mid-Term Report Form Elimination Now Official

Remember our article in February about the Federal Communications Commission (“FCC” or the “Commission”) eliminating a requirement for certain broadcast television and radio stations to file a Broadcast Mid-Term Equal Employment Opportunity (EEO) Report (a/k/a Form 397)?  If you’re a regular CommLawBlog reader you might have noticed that fact in our monthly deadlines articles too.  Now the Form’s date of death has been officially declared as June 5, 2019, because of a notice published in the Federal Register on that date.  The Commission concluded “that the requirement to file Form 397 is outdated and unnecessary,” with the information reported in the form already available for the world to see in broadcasters’ online public inspection files (OPIF).

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FCC Adopts New FM Translator Interference Complaint Procedures

On May 9, 2019, the Federal Communications Commission (“FCC” or the “Commission”) issued a Report and Order in which it adopted new procedures used to resolve interference complaints against FM translator stations.  We previously blogged about the proposed reforms to the complaint procedures in a May 21, 2018 article.  Sections 74.1203(a) and 74.1204(f) of the Commission’s rules outline the procedures required for resolving complaints of actual and potential interference, respectively, against FM translators.  The new rules are designed to streamline and shorten the highly contentious and protracted FM translator interference complaint process and to consolidate the disparate procedures for actual and potential interference complaints.  As explained more fully below, we expect the new rules to go into effect by mid-August. This article breaks down the changes to the FCC’s existing FM translator interference complaint procedures. Continue Reading

Restrictions to Be Lifted from Educational Broadband Service, as FCC Hunts for more Mid-Band Wireless Spectrum

The Federal Communications Commission (“FCC”) has released a tentative Report and Order, scheduled for a vote on July 10, which, if adopted, will lift many restrictions from the Educational Broadband Service (EBS), including allowing educational institutions to sell their licenses to commercial entities and eliminating the requirement that 5% of system capacity be reserved for educational use.

The FCC’s quest for more spectrum for wireless broadband, characterized as ongoing, endless, relentless, or frantic (depending on your point of view) has accomplished one objective by making high-bandwidth frequencies above 24 GHz available through auctions.  But these high-in-the-sky frequencies propagate over only short distances, which means that deployment will be economically realistic in only densely populated areas.  To facilitate bringing new service to areas where your next door neighbor lives more than a baseball pitch away from you, the FCC is now turning to “mid-band” frequencies, which do not require as dense packing of cell sites.  The EBS band – 2500-2690 MHz – is what many would call “prime real estate” in terms allowing the broadband march to escape urban enclaves. Continue Reading