FCC’s Spectrum Auction Authority Expires

On March 9, 2023, the FCC’s spectrum auction authority expired for the first time since it was initially granted in 1993.  The authority enabled the FCC to auction spectrum when it received conflicting applications for a frequency in the wireless or broadcast services.   

Under the Balanced Budget Act of 1997, the FCC’s spectrum auction authority is the only permissible means by which the FCC may choose among two or more mutually exclusive applications for initial commercial licenses or permits.  Expiration of that authority leaves the FCC without any procedure to resolve mutually exclusive applications. As a result, the FCC cannot open any filing windows for new commercial services until the auction authority is reinstated. 

In a March 10, 2023 news release, FCC Chairwoman Jessica Rosenworcel reflected on the gravity of Congress’s failure to extend the Commission’s authority.  “To date, the FCC has held 100 auctions and raised more than $233 billion in revenues and unlocked extraordinary benefits for the American people.  It is my hope that the FCC’s auction authority is restored quickly so that this program is once again able to produce results for consumers and the economy.” 

Although we anticipate that the Commission will eventually regain its spectrum auction authority, until Congress acts, the path remains murky for hopeful individuals and companies seeking to obtain new commercial licenses or permits.  It is unlikely that the FCC will start a new rule making to propose alternative procedures for resolving competing applications.  Moreover, it could take years for an FCC rule making to be adopted. 

For more information, please contact your FHH attorney.  Subscribe to CommLawBlog for the latest updates on telecom news. 

FCC Implements New STIR/SHAKEN and Robocall Mitigation Rules

At the FCC Commissioners’ meeting on March 16, the FCC imposed new STIR/SHAKEN and robocall mitigation requirements on all providers, including intermediate providers and regardless of their STIR/SHAKEN implementation status.  All providers are now required to take “reasonable steps” to mitigate illegal robocall traffic and must submit a certification and mitigation plan to the Commission’s Robocall Mitigation Database.  The deadline to comply with the new “reasonable steps” mitigation standard is 60 days following Federal Register publication of these new rules.  The certification and mitigation plan must be filed by the later of:  (1) 30 days following publication in the Federal Register of notice of approval by the Office of Management and Budget (“OMB”); or (2) any deadline set by the Wireline Competition Bureau through Public Notice.  Any updates to this filing must be filed with the Robocall Mitigation Database within 10 business days of any change to the information previously submitted. 

Within 90 days after the deadline to file certifications and mitigation plans with the Robocall Mitigation Database, downstream providers will be required to block traffic from any intermediate provider or originating provider that has not yet filed a certification with the Robocall Mitigation Database.  Importantly, the FCC set a maximum fine of $23,727 per call for violations of this mandatory blocking requirement.   

By December 31, 2023, the new rules also require the first intermediate provider in the path of an unauthenticated Session Initiation Protocol (“SIP”) call to authenticate the call using STIR/SHAKEN when the intermediate provider receives the unauthenticated SIP call directly from the originating provider.  However, this new requirement does not apply to the non-IP portion of an intermediate provider’s network so long as the intermediate provider is working to implement a non-IP call authentication solution.  It also does not apply to intermediate providers that are unable to obtain a Service Provider Code (“SPC”) token due to established Secure Telephone Identity Governance Authority policies. 

With respect to traffic on the IP portion of an intermediate provider’s network, it is no longer sufficient for an intermediate provider to only respond to traceback requests.  Instead, if an intermediate provider does not know whether it receives SIP calls directly from an originating provider, the FCC’s rules now require the intermediate provider to vet the providers immediately upstream from it and perform sufficient due diligence to know the source of the traffic it receives. 

The FCC also initiated a new rulemaking proceeding seeking comments from the industry as to whether the FCC should revise its rules to explicitly authorize third-party caller ID authentication.  In that proceeding, the FCC will also consider whether it should eliminate the STIR/SHAKEN extension for providers unable to obtain an SPC token. 

For more information about these new requirements, please contact the attorneys at Fletcher, Heald & Hildreth. 

Upcoming FCC Telecom Deadlines

March 31 

Supply Chain Annual Report – Providers of advanced communications services that purchased, rented, leased, or otherwise obtained covered communications equipment and services on the Covered List in 2022 must submit an annual report on or before March 31, 2023 covering information as of December 31, 2022.  The current version of the Covered List is available at https://www.fcc.gov/supplychain/coveredlist.   

International Circuit Capacity Report – Any licensee of a submarine cable between the United States and a foreign point, as well as any common carrier with capacity on a submarine cable between the United States and a foreign point, must file Circuit Capacity Report(s) if it had any activated or non-activated circuits as of December 31, 2022. 


April 3 

Annual Disability Access Recordkeeping Compliance Certification – All equipment manufacturers for and providers of telecommunications services, interconnected VoIP services and advanced communications services must file their annual certification of recordkeeping compliance with the FCC’s disability access rules for calendar year 2022. 

Annual Revenues Report – Telecommunications and interconnected VoIP providers must report annual revenues for calendar year 2022 by this date.  The revenue must be reported through FCC Form 499-A.  Importantly, the revenue reported on the FCC Form 499-A will be used as a true-up for USF contributions previously billed based on the filer’s projected revenue reported on the prior year’s Form 499-Q. 


April 30 

First Quarter Payment of Excise Taxes and Filing of IRS Form 720 – Carriers that provide local service are required to collect federal excise tax from end users and pay the tax on a quarterly basis.  Carriers must file an IRS Form 720 and make their first quarter payments by this date. 


May 1 

Certification of Rate Integration and Geographic Rate Averaging – FCC rules require telecommunications carriers providing domestic, interstate, interexchange services to file an annual certification that they comply with the FCC’s policies regarding rate integration and geographic rate averaging. 

Second Quarter FCC Form 499-Q – All telecommunications providers, including resellers and interconnected VoIP providers (but excluding those below the de minimis threshold) must file quarterly to report prior-quarter historical revenue and next-quarter projected revenue.  However, de minimis filers must maintain documentation to substantiate the de minimis determination on a quarterly basis.  Projected revenue is used to calculate the amount of USF contributions invoiced to the provider in the coming quarter.  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 annual FCC Form 499-A. 


May 31 

Common Carrier Annual Employment Report – All licensees or permittees of common carrier stations with sixteen (16) or more full-time employees are required to report certain employment data, including employee counts by ethnic groups and job categories, to the FCC on an annual basis.  All licensees and permittees, regardless of the number of employees, must file any applicable discrimination reports. 


For more information about these upcoming telecom deadlines, please contact the attorneys at Fletcher, Heald & Hildreth. 

Fletcher Heald Attorneys Work with the NAB Leadership Foundation to Mold Future Broadcast Leaders

On March 17th our very own Frank Montero and Seth Williams presented a lecture on how to close a broadcast station acquisition to the latest class of industry leaders.  The session was part of the National Association of Broadcasters Leadership Foundation’s Broadcast Leadership Training Program (BLT).  We are thrilled to be among the supporters of this initiative that imparts on students specific knowledge and expertise essential to evaluate, own, and operate radio and television stations.  The BLT is a highly competitive program that provides business executives with a blueprint to become a more significant part of the broadcast industry, while increasing the diversity in the broadcasting industry.

To apply for the program and learn more about the BLT, visit the BLT website.  Applications for the next year’s class are open, and a proud tradition of the BLT is the class photo with our “famous” and coveted CommLawBlog sunglasses.

The BLT faculty consists of industry professionals and academics with practical experience, including some of the leading communications attorneys in the field.  We are honored to have Frank, Seth, and Kathleen Victory as part of the BLT faculty.  Their contribution to the program will help shape future broadcast leaders.


Gigi Sohn Withdraws as FCC Commissioner Nominee Leaving Commission Deadlocked

On March 7, 2023, Gigi Sohn, President Biden’s nominee to the Federal Communications Commission, withdrew following a bitter 16-month lobbying battle which blocked her Senate confirmation. Ms. Sohn was first nominated on October 26, 2021, but failed to receive a confirmation vote in the Senate. The White House renominated Sohn on January 3, 2023.

From 2013 to 2016, Gigi Sohn served as counselor to former FCC Chairman Tom Wheeler, and from 2001 to 2013 was co-founder and CEO of Public Knowledge, a communications and technology policy advocacy organization. She currently serves as a Distinguished Fellow at Georgetown Law Institute for Technology Law & Policy as well as at the Benton Institute for Broadband & Society.

Her confirmation faced biting criticism from Senate Republicans who contended that her past social media posts showed a liberal bent that made Sohn unsuited to be a commissioner. Shortly before Sohn announced her decision to withdraw, Sen. Joe Manchin (D-W.V.) dealt a critical blow to her confirmation, announcing he would vote against her, accusing her of holding “partisan alliances with far-left groups.”

The withdrawal leaves the FCC in a continuing 2-2 deadlock and leaves FCC Chairwoman Jessica Rosenworcel without a Democratic majority at the Commission.  Speculation has begun on whom President Biden may nominate to fill the fifth vacant FCC commissioner seat.

EEO Mid-Term Review Anticipated Starting May 2023

We remind radio licensees that Spring marks the mid-point of the current license term for some.  This mid-point is significant because it marks the beginning of the period during which the FCC will conduct mid-term reviews to determine compliance with EEO requirements for radio station employment units that employ 11 or more full-time employees.

Even though broadcast licensees are no longer required to file a mid-term EEO report, we anticipate that FCC staff will closely adhere to the language it used in the 2019 Report and Order eliminating the mid-term report requirement.

  • Specifically, that Report and Order stated that the FCC “will continue to conduct mid-term reviews even in the absence of Form 397.”
  • In addition, the FCC’s EEO Frequently Asked Questions states, “When the need to conduct mid-term reviews of stations’ EEO programs arises again in 2023, Commission staff will conduct the reviews using publicly available information” – which clearly refers to the Online Public Inspection File.

We emphasize that eliminating the mid-term EEO report filing requirement does not mean the Commission’s standards for mid-term reviews or broadcasters’ compliance with the substantive EEO rules have changed either.

Accordingly, radio licensees that (a) have 11 or more full-time employees and (b) have stations in the following states should review their Online Public Inspection Files and EEO filings before the mid-term, and make corrections or revisions where necessary:

However, the 2019 Report and Order also indicated that there would be a simple mechanism in the Online Public Inspection File to specify whether a station employment unit had 5-10 full-time employees (rather than 11 or more).  Such a mechanism has not yet been implemented, but stay tuned for an update on that.  With the mid-term periods quickly approaching, we anticipate the FCC will take action soon.

TV licensees should not rest on their laurels for long, as the first mid-term reviews for them will begin approximately in June 2024.  Note that more TV licensees will be covered, as the threshold number of full-time employees is lower.  Mid-term reviews follow the same schedule long-established for license renewal applications, and for both radio and TV licensees, the review period will begin on the fourth anniversary of the filing deadline for the last renewal application.

FCC Broadcast Filing Deadlines for April

April 1, 2023

Delaware or Pennsylvania Television License Renewal Applications Due – Applications for renewal of FCC licenses for television stations licensed to Delaware or Pennsylvania must be filed in LMS, the FCC’s online filing system.  Schedule 396 the Broadcast EEO Program Report must accompany these applications.

EEO Public File Reports – All licensed full-service radio and television broadcast stations, Class A television stations, cable television systems, direct broadcast satellite providers, and satellite radio employment units with five or more full-time employees that are licensed in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, or Texas must place EEO Public File Reports in their Online Public Inspection File. For all stations with websites, the report must be posted there as well.

April 10, 2023

Q1 2023 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 first quarter of 2023 (January, February, March) 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.

Q1 2023 Certification of Class A Television Continuing Eligibility – All Class A television stations are required to demonstrate continuing compliance with the FCC’s Class A eligibility rules by maintaining documentation in each respective station’s Online Public Inspection File.  To ensure compliance, Class A licensees should upload sufficient documentation for the period of  January 1, 2023 through March 31, 2023 to each station’s Online Public Inspection File by this date.

Q1 2023 Noncommercial Educational Fundraising Reports – All noncommercial educational radio and television stations that conducted on-air fundraising activities that interrupted regular programming for the benefit of third-party non-profit organizations for the period of January 1, 2023 through March 31, 2023 must upload documentation detailing each third-party fundraising program or activity to each station’s Online Public Inspection File.

For more information about these deadlines please contact the attorneys at Fletcher, Heald & Hildreth.

Broadcasters Gather for State Leadership Conference

Congratulations to the National Association of Broadcasters, the National Alliance of State Broadcasters Associations, and all state broadcast associations on a successful NAB State Leadership Conference this past week in Washington, D.C.

Fletcher, Heald, & Hildreth is proud to have sponsored this year’s State Leadership Conference.

Reminder – EAS Test Reporting System Filing Deadline February 28

This is a reminder that the FCC previously advised that parties that are Emergency Alert System (“EAS”) Participants, which would include not only virtually all broadcast stations, but also, wired and wireless cable television systems, Satellite Digital Audio Radio Service, and wireline video systems, must submit Form One filings for calendar year 2022 in the online EAS Test Reporting System (ETRS) by no later than February 28, 2023.  We provided a more extensive discussion of this requirement in our blog post last December.

The FCC has now indicated just how much it wants to see these Form One filings by sending reminder e-mails to contact representatives for EAS Participants. Despite the absence of any nationwide test in 2022, and even if the FCC’s reading of its rules to nonetheless require an annual update is a bit strained, it has now very clearly given notice that it is requiring the Form One filing.    The ETRS system is now open, and we would strongly advise that EAS Participants get their updated forms on file.  We also urge you to make sure that the information provided correctly reports the current equipment and software you are using.  In its pending rule making proceeding seeking to improve the EAS system (PS Docket No. 15-94), the FCC is currently considering whether further reporting or other obligations should be imposed on EAS Participants to ensure operational readiness.

If you have any questions or would like assistance preparing your Form One filing, please contact a Fletcher, Heald & Hildreth attorney and we would be glad to help.

FCC Extends Deadline for January Online Public File Uploads and Other Filings

On Friday, January 27, the FCC further extended the deadline for entities to complete certain required Online Public Inspection File (“OPIF”) uploads and certain Licensing and Management System (“LMS”) filings. The new due date for these uploads will be February 28, 2023.

On January 6, 2023, following wide reports of technical challenges impacting licensee’s ability to upload documents to LMS and Public Files, the FCC announced that it would extend the deadline for certain filings to January 31st, 2023. The extension applied to all broadcast, cable, and satellite entities’ uploads due to be placed in the OPIF since January 1, 2023. It also extended the deadlines for Form 2100, Schedule H Annual Children’s Programming Reports, Form 2100, Schedule 303S, and Renewals of Broadcast Station Licenses.

With today’s Public Notice, the deadline for these uploads has been delayed to February 28th, 2023.

If you have questions or need assistance with OPIF access, or have questions about these deadlines, please contact your FHH attorney.