Upcoming FCC Broadcast and Telecom Deadlines for November/December

Let’s play some word association. If we say “Deadlines”, you might answer “Scary.”  Hence, the reason we’re publishing our November and December FCC deadlines post on Halloween.  Only, unlike the ghouls and goblins you may see on the streets tonight, these are real! Please note that the list is NOT exclusive, so there may be others. For help meeting these deadlines or answering questions about any that may not be listed here, please contact FHH at 703-812-0400. Continue Reading

Mark Your Calendar for the 29th Annual FCBA Charity Auction

The fall chill in the air must mean one thing – and no, it’s not just pumpkin spice lattes! It’s time to go out for a night of bidding, imbibing, and banter all for a good cause.

Pull up your calendars and mark Thursday, Nov. 1, 2018 for the 29th Annual FCBA Charity Auction hosted by the FCBA Young Lawyers Committee. This event is the place to be and, since attendance is free and you get one free drink just for showing up, there’s no reason not to go.

We recently got an inside scoop on some awesome prizes you’ll have a chance to bid on, including: a signed copy of “Appetites: A Cookbook” by the late Anthony Bourdain; a weekend getaway to Asheville, North Carolina; autographed Jordan Spieth and Tiger Woods items; and tickets to a taping of the Stephen Colbert Show — all in addition to sports tickets, spa days, wine tastings, dinners at Michelin-starred restaurants, fabulous women’s handbags, and more!  If these prizes are any indication of the overall prize caliber, we’ll be saving money in our piggy banks to bid high on auction night.

As in years past, the FCBA also raffles off a handful of great prizes – and this year’s raffle is top-notch. This year’s grand prize is a 65-inch LG OLED, 4K Ultra HD, High Dynamic Range TV, courtesy of LG Electronics, USA. And you can get in on the action right now by buying raffle tickets from a representative in your office or by contacting Emilie de Lozier at EdeLozier@wbklaw.com for more details.

Proceeds from this year’s Charity Auction will benefit two great local charities—New Endeavors by Women (NEW) and the FCBA Foundation.  Celebrating its 30th anniversary this year, NEW partners with homeless women in the DC area to empower them to recognize their own worth.  By providing housing, fostering the development of life skills, and promoting education and employment, NEW transforms women’s lives by working to break the cycle of homelessness.  Nearly 30 years later, NEW’s programs and services are even more vital and urgently-needed, as homeless women and children in the District face the most daunting climb out of homelessness ever seen in recent history.  Funds raised from this year’s Charity Auction will support NEW’s Youth Enrichment Program (YEP!), which provides school help and a summer enrichment program for children.  The FCBA Foundation will use proceeds from the Charity Auction to support its annual scholarship programs.

Needless to say, going to this event is a great way to have a fun night while supporting two amazing organizations.

Per recent tradition, the party will be at The Sphinx Club at the Almas Temple (location at 1315 K Street, NW, Washington, D.C.). As the saying goes – bid early, bid often! Doors open at 6:00 p.m. and the festivities will continue until 10:00 p.m. Dress is business attire.

Not going to be in D.C. on November 1st? Have no fear! You’ll be able to bid online for a number of prizes at https://www.biddingforgood.com/fcbafoundationcharityauction.

See you there!

FCC Proposes LPTV and FM Repack Reimbursement Schedule

The Federal Communications Commission (“FCC”) has invited comments on a “catalog” of categories and amounts it thinks are reasonable for reimbursement of expenses incurred by low power TV (“LPTV”) stations as a result of involuntary channel changes imposed by the post-incentive auction repacking of the TV spectrum. Congress initially appropriated funds to reimburse costs incurred by only full power TV stations changing channels; the full power TV industry is currently going through the reimbursement process.  Congress later added more money so that displaced LPTV and affected FM radio stations could also seek cost reimbursement, with FM stations eligible to claim reimbursement if they are forced temporarily or permanently to modify or to relocate their transmission facilities to accommodate repacked TV stations.  We’ve previously discussed this portion of the repack reimbursement process here and hereContinue Reading

C Band Receive Only Earth Stations Application Filing Window Extended

The FCC has extended the filing deadline for the C band receive only earth stations applications to October 31, 2018.  In a Public Notice, the FCC decided to extend the filing deadline (which was October 17, 2018) due to difficulties experienced with the International Bureau Filing System (IBFS) which prevented some applicants from filing for license or registration.  So those who wanted to file but couldn’t meet the previous deadline  have two more weeks to get your application filed.

What’s Next for AM Radio?

Late on Friday, October 5, the Federal Communications Commission (“FCC”) released a Second Further Notice of Proposed Rulemaking in a five-year ongoing effort to “revitalize” the AM radio broadcast service.  The new proposals continue a trend toward allowing higher power operation by smaller stations, by reducing nighttime signal protection for some 60 Class A AM stations located in the continental United States and 16 stations in Alaska.  The end result would be less wide area coverage and more local radio service to the public. Continue Reading

FCC Streamlines Rules for Earth Stations in Motion and Seeks Comments on Expanding Frequencies for Their Use

We previously have reported on Federal Communications Commission (“FCC” or “Commission”) authorization of use of earth stations installed on aircraft to communicate with Fixed-Satellite Service (“FSS”) spacecraft in geostationary orbits.  These Earth Stations Aboard Aircraft are part of a broader category of Earth Stations in Motion (“ESIMs”).  FCC regulations regarding licensing and operational requirements of ESIMs tend to be similar, but not identical, across the various subcategories of ESIMs, with differences generally dependent on the type of vehicle (ships, airplanes, or land-based) to which the Earth Station is attached.  Recently, the FCC issued a Report and Order intended to streamline, consolidate, and harmonize the rules governing these earth stations used to provide satellite services.  At the same time, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on expanding the frequencies that ESIMs may use. Continue Reading

Upcoming FCC Telecom and Broadcast Deadlines for Fall 2018 (October/November/December)

Deadlines!  Get your deadlines here!  With summer in the rearview mirror, it’s time to get back to work and look ahead to the rest of the year.  Here’s a list of FCC-related broadcast and telecom deadlines. Please note that the list is NOT exclusive, so there may be others. For help meeting these deadlines or answering questions about any that may not be listed here, please contact FHH at 703-812-0400.

Broadcast Deadlines: 

October 10, 2018 – Children’s Television Programming Reports – For all commercial television and Class A television stations, the third quarter 2018 children’s television programming reports must be filed electronically with the Commission.  These reports then should be automatically included in the online public inspection file, but we would recommend double-checking to ensure this occurred, as the FCC bases its initial judgments of filing compliance on the contents and dates shown in the online public file.  Please note that, as has been the case for some time now, the required use of the Licensing and Management System for the children’s reports means that the licensee FRN and password are necessary to log in; therefore, you should have that information at hand before you start the process.

Commercial Compliance Certifications – For all commercial television and Class A television stations, a certification of compliance with the limits on commercials during programming for children ages 12 and under, or other evidence to substantiate compliance with those limits, must be uploaded to the online public inspection file.

Website Compliance Information – Television and Class A television station licensees must upload and retain in their online public inspection files records sufficient to substantiate a certification of compliance with the restrictions on display of website addresses during programming directed to children ages 12 and under.

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, a listing of each station’s most significant treatment of community issues during the past quarter must be placed in the station’s online public inspection file.  The list should include a brief narrative describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program.

Class A Television Continuing Eligibility Documentation – The Commission requires that all Class A Television stations maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.  While the Commission has given no guidance as to what this documentation must include or when it must be added to the public file, we believe that a quarterly certification which states that the station continues to broadcast at least 18 hours per day, that it broadcasts on average at least three hours per week of locally produced programming, and lists the titles of such locally produced programs should be sufficient. 

November 19, 2018 –  EAS National Test – Participants’ ETRS Form Three Due – All EAS participants must submit Form Three, which reports the results of the national EAS test held on October 3 by this date.  If a station successfully received and passed on the test, it must report from which source it first received the test, when it received the test, when it forwarded the alert, and other details of what was received.  If the station did not receive the test properly, it will be asked to explain what it knows of why not.

December 1, 2018 –  EEO Public File Reports – All radio and television stations with five (5) or more full-time employees located in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must place EEO Public File Reports in their public inspection files. TV stations must upload the reports to the online public file. Radio stations in the top 50 markets and in an employment unit with five or more employees will have to place these reports in the new online public inspection file; all other radio stations may continue to place hard copies in the paper public file for the time being. For all stations with websites, the report must be posted there as well. Per announced 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.

EEO Mid-Term Reports – All television stations with five or more full-time employees in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

Telecom deadlines: 

November 1, 2018 – Quarterly Telecommunications Reporting Worksheet – Telecommunications carriers and Interconnected VoIP providers must report quarterly revenues for the preceding quarter and projected revenue for the upcoming quarter on FCC Form 499-Q.


FCC Acts to Speed 5G Rollouts

In a much ballyhooed action on September 26, the Federal Communications Commission (“FCC” or “Commission”) took another stride in its effort to clear away regulatory and administrative obstacles to 5G cell site construction via the issuance of a Declaratory Ruling and Third Report and Order in a proceeding titled “In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment.”  Commissioner Brendan Carr has been spearheading the initiative at the FCC to respond to industry complaints that tribal fees, historical/tribal review processes, and municipal processing fees and permitting delays have been dramatically and needlessly increasing the time and cost of installing 5G micro-sites.  The FCC estimates that hundreds of thousands of these small cells will have to be built in the next five years to implement the infrastructure necessary to deliver super high speed, super high bandwidth service at millimeter wave frequencies that are only effective over short distances.  The cellular industry has been chafing under the burdensome regulatory regime for cell site construction that might make sense for traditional tall cell towers but makes no sense at all for the 50 foot or shorter structures and add-ons to existing buildings that will constitute the majority of 5G installations.

The FCC already had largely eliminated tribal reviews for towers of 50 foot or less, and eliminated tribal fees for all towers.  It also reduced the regulatory burdens on small cells which could have little or no impact on historical, tribal or environmental values.  The toughest nut to crack was the obstinacy of counties and municipalities who have insisted on lengthy (and expensive) processes to review – and sometimes obstruct – applications to construct or install small cells. The Commission’s September Order took that bull directly by the horns.

The FCC adopted a somewhat expansive interpretation of its powers under the Communications Act to pre-empt non-Federal regulations that “prohibit or have the effect of prohibiting” the provision of telecommunications service.   (The Act actually addresses this prohibition only in connection with  “personal wireless services” – a specific subset of wireless communications – but the FCC has deemed that provision to apply to all wireless services.) The FCC had previously established “shot clocks” for action by local authorities in reviewing cell construction permit applications.  Those shot clocks have proven ineffective.  The Commission has now confirmed that “materially inhibiting” wireless service is tantamount to “prohibiting” such service and therefore falls within the FCC’s jurisdiction to prevent. The FCC accordingly has now declared:

  • Fees charged by local authorities for small cell permit applications must be based on the actual costs of the review process.
  • Such fees must be non-discriminatory among applicants, thus discouraging favoritism for one (often local) firm over others. Fees are not supposed to be general revenue centers for local authorities.
  • Specific fee levels for small cell deployments were established to set a presumptive level of reasonableness, thus forestalling at least some of the inevitable bickering about what is reasonable. The thresholds are: $500 for a single application including up to five small wireless facilities, plus an extra $100 for each additional such facility; $1,000 for a new pole intended to support small wireless facilities; and $270 per year for recurring fees, including Right-of-Way access fees. Local authorities can still charge higher fees if they demonstrate that their actual and reasonable costs exceed the levels prescribed.
  • The fees charged for use or modification of rights-of-way owned by the local authorities such as streets, poles, traffic lights, etc., must also be reasonable and non-discriminatory.
  • Local authorities may impose aesthetic limits on facility construction, but such burdens must be applied in a non-discriminatory manner, and must be established publicly in advance so all applicants can know what aesthetic standards will apply.
  • Requirements that facilities be placed underground would not be permissible if such requirements effectively preclude deployment.
  • Minimum spacing requirements are permissible to the same degree as aesthetic requirements.
  • A 60 day shot clock shall apply to applications for co-location of small facilities on existing structures, and a 90 day shot clock will apply to applications for such facilities on new structures. These limits apply to batched applications as well as individual ones.  Local authorities may rebut the presumption of the reasonableness of these limits if they can show that acting within these timeframes is not feasible.
  • The shot clocks for co-locations apply to sites that have not previously been approved for wireless use as long as they are pre-existing structures.
  • If a local authority fails to act within the time frame established by the shot clock, the applicant may seek expedited relief in court for the authority’s failure to act. This was a victory for the local authorities since there had been strong sentiment for imposing a “deemed granted” remedy for failures to meet the prescribed timetables. By requiring judicial action to enforce the shot clocks, delay and expense are likely to be encountered despite the FCC’s confidence that its guidance will usually preclude the need for such measures.
  • The shot clocks apply to “pre-application” requirements which are now imposed by some authorities. Such requirements would otherwise effectively extend the permissible period for action on applications.

These new rules will go a long way toward sweeping aside local obstacles to facilities construction, obstacles which have accrued over the last decades as municipalities and tribes have looked to wireless carriers as cash cows which can be milked for revenue.  It must be noted, however, that the new rules also represent another broadening of federal authority to regulate matters which have traditionally been left in the hands of states, counties, or municipalities.  Those entities are surely preparing their court challenges to the new rules, so the FCC will have to weather that challenge in the months ahead.  Still, from a policy standpoint, it is hard to question the necessity of taking forceful federal action to expedite the availability of 5G service as ubiquitously and quickly as possible.

EAS and WEA Tests Postponed; Now Scheduled for Oct. 3

In coordination with FEMA, the FCC has postponed the nationwide tests of the Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) to Wednesday, Oct. 3 due to ongoing response efforts to Hurricane Florence. The test was originally scheduled for this Thursday, Sept. 20.

On Oct. 3, the WEA test will begin at 2:18 p.m. EDT and the EAS will follow at 2:20 p.m. EDT. The test is intended to test the “operational readiness of the infrastructure for distribution of a national message and determine whether improvements are needed.”

As with the previous testing date, ETRS Form 2 will need to be completed by the end of the day on Oct. 3. Participants will then have to file a post-test ETRS Form 3 on or before Nov. 19. Form 3 requires participants to identify specific times at which they received and transmitted the test message, the source(s) from which they received the test (including which source it was received from first), the language in which the message was received and retransmitted, and any complications they experienced.

Keep an eye on CommLawBlog for more updates.

FCC Proposes to Reaffirm its Limitations on the Authority of Local Cable Franchise Authorities

Photo by rawpixel on Unsplash

The FCC will vote this month on whether to consider adopting a set of rulings that would limit the authority of cable local franchise authorities (LFAs) in the franchising and regulation of cable systems in response to a recent court case that threatens to expand LFA authority over cable systems and their diverse service offerings. In preparation for this vote, the FCC has pre-released a draft Second Notice of Proposed Rulemaking (NPRM) that contains these proposals.

I. Background on the Shared Local and Federal Regulatory Authority Over Cable Systems

Before discussing the NPRM, a little background is in order. Cable franchising is an arcane area of law, which mixes federal, state, and local law and regulation. The Cable Act of 1984, as amended in 1992, sets the rules for what has been called a “deliberately structured dualism.” That is, dual locality/FCC authority over cable systems and cable service. Localities exercise this authority through LFAs (that in many cases are not even separate local offices), who control the public rights-of-way that cable companies use to string their cable, while the FCC is charged by the Cable Act with exercising federal jurisdiction. FCC policy and LFA desires are frequently in tension, with LFAs often seeking franchise agreements that will give them greater regulatory authority and payments than the FCC or cable operators believe to be appropriate. It is rare to find a LFA that is actually interested in or capable of regulating any services offered by a cable system.

For the LFA, it is all about what they can get from the cable operator –Public, Educational and Governmental access channels and the franchise and other fees that LFAs extract from cable operators who pass the fees along to subscribers. For years, LFAs have fought with cable operators and the FCC over franchise fees and other ways to extract money (and other benefits) from cable operators, as well as the regulatory authority of LFAs. While we thought these battles had been settled by definitive court and FCC rulings, certain very aggressive LFAs (particularly Montgomery County, MD) have continued to fight for more money and power, and have had some recent success in convincing courts that FCC limits on LFA-imposed fees and LFA regulatory authority have not been legally justified. The proposed NPRM is a reaction to these recent LFA successes.

II. The Montgomery County Court Decision

The primary impetus behind the proposed NPRM is the 2017 decision of the Sixth Circuit US Court of Appeals in Montgomery County v. FCC. In this case, the LFA attacked the FCC’s doctrine that LFAs are prohibited from regulating non-cable services offered over cable systems – business data services, VoIP services, and high speed Internet access services among others. This doctrine is called the “mixed-use” doctrine. Because of this doctrine, LFAs have not been able to require cable operators to obtain separate franchises for these non-cable services or to assess franchise fees on these non-cable services. In addressing the challenge to this doctrine, the Court found that the FCC had adequately justified the doctrine only as applied to the services of a common carrier that provides cable services. For other cable companies, the Court found that the FCC had not shown a sufficient basis for shielding their non-cable services from LFA regulation.

The Court also determined that the FCC had not adequately justified the decision to treat cable-related in-kind contributions as franchise fees. An example of these “contributions” are cable services to government buildings provided at no charge. This is important because franchise fees are limited to five percent of a cable system’s gross cable services revenues.

III. Proposals in the NPRM to Respond to the Montgomery County Decision

The proposed NPRM would look to correct these deficiencies in the FCC’s rulings. First, the NPRM would declare that the “mixed-use” doctrine applies to cable systems not owned by telephone companies (e.g., Comcast or Charter) as well as cable systems owned by telephone companies (e.g., AT&T and Verizon). The Montgomery County Court found that the “mixed-use” doctrine applies to telephone company cable systems because the Cable Act’s definition of a “cable system” says that LFAs may regulate these “Title II” carriers only to the extent that they provide cable services.  The proposed NPRM would tentatively find that this “Title II exception applies not just to traditional telephone companies (e.g., AT&T and Verizon), but to any entity that offers a Title II service over its cable system. Thus, if Comcast offered a telecom service with its cable plant (e.g., business data service), this exception would apply to Comcast. In other words, LFAs would not be able to impose regulations on traditional telecom services provided by cable companies.

As for those cable systems that offer information services but not traditional telecom services, the NPRM would tentatively conclude that Section 624(b) of the Cable Act bars LFA regulation of their non-cable services, as it bars LFAs from establishing “requirements for … information services.” This ruling would prohibit LFA regulation of Internet access services, which were classified as telecommunications services but are now classified as information services. The NPRM notes that Internet access services cannot be regulated at the state or local level for the additional reason that the FCC preempted regulation of those services when it recently reclassified Internet access services as information services. Continue Reading