FCC Proposes 2018 Regulatory Fees

As we pack up our swimming trunks and beach umbrellas for the unofficial start of summer, the FCC this week issued its 2018 Regulatory Fee Notice of Proposed Rulemaking (NPRM). This NPRM puts in motion the process for payment of regulatory fees which will likely be due sometime in September.

For the most part, the specific fees proposed for 2018 (with a few exceptions noted below) represent decreases from the amounts due in 2017. This is not surprising, since the total amount of fees collected in a year is supposed to match the FCC’s Congressional appropriation, which is also down in 2018. Fee reductions may be particularly noticeable for large-market television stations, which could save as much as about 15 percent from last year’s fees. On the flip side, the proposed fees would again hit direct broadcast satellite (DBS) providers with an additional ten cent per subscriber increase, as the Commission continues to attempt to bring DBS fees in line with those imposed on traditional cable television/IPTV operators (who now pay 77 cents per subscriber).

In addition to the specific fees proposed for 2018, the NPRM seeks comment on a few proposed changes to how fees will be calculated for various services, including:

  1. Proposing a new methodology for television broadcast regulatory fees for FY 2019: the FCC proposes calculating regulatory fees based on the actual population covered by a station’s predicted over-the-air contour rather than using the Nielsen Designated Market Areas (DMA) to define a station’s market. The FCC seeks comment on this proposal generally, and in particular on whether regulatory fees should be calculated based on the specific population covered by each station or if stations should be grouped into tiers based on population, as is currently the case for broadcast radio stations. (For those who may be interested, the FCC attaches this as an Appendix to the NPRM listing the FCC’s determination of the population served by every full-power station) Continue Reading

Let’s Try This Again – FCC Seeks Comments on TCPA/Robocall Issues Remanded By D.C. Circuit.

Like telemarketing “robocalls” that never seem to go away, the FCC’s attempts to clarify important and difficult statutory and regulatory issues under the Telephone Consumer Protection Act (TCPA) seem to constantly reoccur. Now the FCC is trying again, with a Public Notice seeking comments on: the definition of an “automatic telephone dialing system” (ATDS), how to treat calls to numbers that have been assigned to a new subscriber, how consumers can revoke their consent to receive telemarketing calls, and other TCPA issues teed up in pending or recent petitions. The Commission has put this on a fast track, with comments due by June 13and reply comments due by June 28. Key elements of FCC telemarketing regulations are in play here, so parties that are impacted by TCPA regulations and enforcement should get cracking.

Here’s the background to the FCC’s recent Public Notice. As covered in our four-part CommLawBlog “Wrong Number!” series, the D.C. Circuit recently reversed several aspects of a 2015 FCC TCPA Order, including the FCC’s controversially broad definition of an ATDS and its one-call safe harbor for calls made to numbers that have been reassigned to a new subscriber. On the other hand, the court upheld the FCC’s 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC. The FCC’s recent Public Notice seeks comments on the following issues and more:

    1. Definition of an ATDS. The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” In its 2015 Order, the prior FCC interpreted the term “capacity” to include a device that would meet the definition only by the addition of software, which had the apparent effect of including all smart phones in the definition of ATDS. The D.C. Circuit found the breadth of this impact to be “eye-popping,” and the current FCC explicitly seeks comments on “how to more narrowly interpret the word ‘capacity’ to better comport with the congressional findings and the intended reach of the statute.” The Public Notice also asks “how ‘automatic’ must dialing be for equipment to qualify as an automatic telephone dialing system? Must such a system dial numbers without human intervention? Must it dial thousands of numbers in a short period of time? If so, what constitutes a short period of time for these purposes?” Answers to these important questions will directly impact the definition of ATDS, and thus the breadth of enforcement of the TCPA. Similarly, the FCC seeks comments to better define the statutory requirement that ATDS equipment use “a random or sequential number generator.” Additionally, the Public Notice asks the important question of whether making telemarketing calls without use of a device’s ATDS functionality triggers a TCPA violation. An answer of “No” to this question reduces the scope of possible TCPA enforcement. Continue Reading

FCC Proposes Rules to Reform Procedures on FM Translator Station Complaints

The FCC at its May Open Meeting adopted a Notice of Proposed Rulemaking (NPRM) proposing reforms to the Commission’s current procedures used to resolve complaints of interference caused by FM translator stations. As the NPRM recites, the FM translator service was instituted in 1970 as a way to improve reception of FM radio stations in areas where direct reception was hampered by terrain, distance, or other obstructions. As a secondary service, however, FM translators have always been prohibited from causing interference to the reception of any other broadcast station. In recent years, use of FM translators has expanded greatly, including use of FM translators by AM stations. Along with increased use of FM translators has come increased claims of interference, as well as complaints regarding the Commission’s procedures for resolving those claims. The NPRM, aims to reform a number of these processes.

Under the Commission’s existing rules, complaints regarding interference may be raised at the application stage (predicted interference) or after a station has begun operation (actual interference). Claims of predicted interference raised in opposition to an application must provide “convincing evidence” that the proposed translator will cause interference to reception of an existing station. A complaining party must provide the name and address of a listener whose address is located within the proposed contour of the translator and who will receive interference if the application is granted. Claims of actual interference may be raised at any time, and may be supported by statements from one or more bona fide listeners at any location. To qualify as bona fide, a listener complaining of interference must provide his or her name, address, the location where the interference occurs, and statements that he or she is a listener, and does not have any legal, economic, or financial stake in the outcome of the proceeding (i.e., he or she cannot be affiliated with the stations involved). Finally, the complaining listener is, under current rules, required to cooperate with the translator licensee in attempting to resolve the interference.

The FCC proposes new rules in the NPRM designed to streamline the interference resolution process and requests comment on whether further changes may be advisable. The proposed changes address both 1) what will be required in filing complaints and 2)the options available to resolve interference.

Going forward, the NPRM proposes that a complaint of actual interference filed by another broadcast station must be supported by at least six bona fide listener complaints. (the FCC also requests comment on whether this number should be adjusted based on the population in the areas of alleged interference.) To qualify as a bona fide listener complaint, the NPRM proposes requiring complaints to include:

  1. a full name and contact information;
  2. a clear, concise, and accurate description of the location of the alleged interference;
  3. a statement that the listener listens to the affected station at least twice per month; and
  4. a statement that the complainant has no legal, financial, or familial affiliation with the affected station.

On that final point, the NPRM clarifies that social media connections with the station (e.g., “liking” the station’s Facebook page) will not be disqualifying and that complaints solicited by the station or presented in a standardized format will be acceptable. The proposed rules will not prevent a translator licensee from reaching out directly to listeners whose complaints are filed with the Commission, but those listeners will no longer be required to cooperate in efforts to eliminate interference.

In addition to submitting the requisite number of listener complaints, a station complaining of actual interference would, under the proposed rules, also need to submit a map showing the locations of the alleged interference in relation to the contours of the stations involved. Complaints, whether related to actual interference or predicted interference, would only be accepted if they demonstrate interference at locations within the complaining station’s 54 dBu contour. Once a station has filed an interference complaint that is supported by the required information, the NPRM proposes requiring the translator licensee to submit a technical showing demonstrating that interference has been eliminated (e.g., submission of desired/undesired signal ratios at the relevant locations).

The rules proposed in the NPRM would also make one significant change that could make it much easier for translator licensees to resolve legitimate interference complaints. Under both the current and proposed rules, translator licensees will be required to resolve interference by suspending operations, or by using “suitable techniques.” This could include reducing power, modifying antenna characteristics, changing transmission sites, or changing channels. Under current rules, the option of changing channels is limited to moving to first, second, third, or IF channels. The rules proposed in the NPRM, however, would expand the available channels to include any channel within the band (reserved or non-reserved) in which the translator is currently licensed.

Finally, the NPRM requests comment on whether the Commission should establish deadlines for translators to resolve claims of actual interference, as well as deadlines for the Commission itself to resolve such complaints.

Comments on the NPRM will be due 30 days after it is published in the Federal Register, with reply comments due an additional 30 days after that. Keep an eye on CommLawBlog for those deadlines.

FCC Enforces Regulations Against LED Signs

Those bright, colorful LED signs are up everywhere. They advertise gasoline prices, announce church services, and promote specials at the dry-cleaner. You can program them to say anything you want, with eye-catching animation. And sometimes they cause interference to radio communications.

Wait — LED signs? CommLawBlog readers know all about radio interference from well pumps and fluorescent lights and (of course) bitcoin mining machines. But LED signs are a new one.

Not, though, to the engineers for the wireless phone companies, who put a lot of effort into tracking down interference into their customers’ cell communications. Lately a lot of those searches have ended at a company’s LED sign. Now, the FCC has gotten involved trying to head off the problem at the source: with the companies that market the signs.

Perhaps to the surprise of those companies, the FCC does have authority over the signs, because they incorporate digital devices and produce radio waves as an unwanted byproduct. The FCC regulates those emissions to minimize the risk of interference. Someone in the distribution chain – usually the manufacturer – is supposed to have the device tested for compliance with the FCC’s limits and,  if the device passes, to apply certain labels and provide certain information in the manual.

By our count, six sign companies recently settled with the FCC for failure to follow those rules. They paid substantial fines: Liantronics, LLC ($61,000), Optec Displays, Inc.($54,000), Boyce Industries, Inc. d/b/a VISIONTECH ($39,500), Media Resources, Inc.($19,500), Anthem Displays, LLC ($18,000), and Tradenet Enterprise Inc. d/b/a Vantage LED ($15,000).

Nowadays pretty much anything with a battery or a wall plug contains digital circuitry, which means all of those devices come under FCC regulation (apart from a very small number of exceptions). In addition to paying fines, companies that ignore the rules risk expensive interruptions to production and sales, and possibly an accumulation of un-sellable inventory.

In short, manufacturers and importers can save a lot of money and trouble by complying up front. If you don’t know how, we can help.

Bye Bye Net Neutrality Starting June 11

By Fabio Lanari (Modified by Rock1997 via the Creative Commons License)

Mark your calendars because the time has come: as of June 11 the FCC announced yesterday that its Open Internet rules (better known as “net neutrality”) will cease and new FCC rules governing the Internet will take effect.

This was the latest in a series of procedural milestones in the net neutrality debate. In a contentious December 2017 decision, the FCC voted along party lines to reverse the 2015 Obama-era oversight rules which Chairman Ajit Pai called “heavy-handed.” The effective date of this reversal was tied to approval from the Office of Management and Budget, which occurred on May 2.

For a refresher, the new rules (also called the Restoring Internet Freedom rules) will reclassify broadband Internet access as an “information service” and will largely leave regulation of the Internet to the Federal Trade Commission (FTC) (which we talked about here). Chairman Pai said that allowing the FTC to oversee the Internet would “once again protect consumers’ online privacy and promote competition across the entire Internet ecosystem instead of harming innovation and investment with Depression-era rules.” The Restoring Internet Freedom Order eliminates rules against blocking and paid prioritization, a major concern for net neutrality supporters, who say that this will allow Internet service providers to willingly favor the delivery of certain Internet content to users.

In opposition to this measure, Commissioner Jessica Rosenworcel yesterday (sitting as the lone opposition after fellow Democratic Commissioner Mignon Clyburn stepped down last month), issued a strong statement calling out the FCC for being “on the wrong side of history, the wrong side of the law, and the wrong side of the American people. It deserves to have its handiwork revisited, reexamined, and ultimately reversed.”

Yesterday’s announcement certainly will not close the books on net neutrality. Senate Democrats have been working since December to overturn the FCC’s decision, and were quick to take to Twitter to voice their opposition in response to Chairman Pai’s announcement of the Order’s effective date. Senator Ed Markey (D-Mass.), who has spearheaded this effort, urged that “the Senate must act NOW and pass my resolution to save the Internet as we know it.” The U.S. Senate is set to vote next week on Senator Markey’s resolution to reject the FCC repeal. Even if this measure passes the Senate (uncertain), and passes the U.S. House (unlikely), President Trump has already said he would veto it. Even that would not be the end of the line, however, as more than 22 state attorneys general have already filed legal challenges to the Commission’s repeal of the net neutrality rules.

Keep an eye on CommLawBlog for continuing developments on this debate.

Changes Are Coming for the Key Frequency Band at 4 GHz

Photo courtesy of George Kizer

Radio spectrum and real estate have a lot in common. They’re not making any more of either; and for both, location really does matter. “Location,” for spectrum, means frequency. Much as different real estate locations best serve different purposes, different technological applications work best in different frequency ranges. Like prime downtown addresses, though, all the best frequencies are taken. If you want to build something new, you’ll first have to acquire an existing piece of property, whose present occupants will have to go somewhere else. The same is true with spectrum. Part of the FCC’s job is to make sure the spectrum incumbents can find suitable new homes.
A lot of the impetus for spectrum redevelopment comes from the growing demand for mobile bandwidth, which in turn comes from people streaming movies and videos on their phones and tablets. The FCC keeps making more spectrum available to the wireless carriers, but it can’t keep up. The recent incentive auction freed up another 70 MHz for licensed wireless broadband, which sounds like a lot, but still not enough. And it’s peanuts compared to the next possible target: 3.7-4.2 GHz. That’s a full 500 MHz of prime real estate, by far the biggest block ever considered that can carry the 4G-type wireless services we all rely on.

Needless to say, the 3.7-4.2 GHz band is in use.

The band formed a major part of the early transcontinental microwave systems built in the 1950s and 60s to carry long-distance telephone calls and network TV programs. Microwave links at these frequencies can span many tens of miles with antennas of manageable size, making it ideal for this use. The same properties also make it suitable for communication satellites’ space-to-Earth downlinks, starting with the very first commercial satellite launched in 1965. The growth of TV and cable over the following decades relied on growing numbers of satellites that used 3.7-4.2 GHz for program distribution. Many Americans found they could bypass the TV stations and cable companies by installing those big backyard dishes that receive the cable and network signals directly.

Much of the former microwave traffic has since migrated to fiber optic cable. But 3.7-4.2 GHz remains a workhorse band for satellites, particularly for video distribution.

That may soon change.

Continue Reading

FCC Grants Puerto Rico Broadcasters Recovery Relief Request for FM Translator Applicants Impacted by Hurricanes Maria and Irma

On May 1, the FCC’s Media and Wireless Bureaus granted a request filed by Fletcher, Heald & Hildreth attorneys Frank Montero and Keenan Adamchak on behalf of the Puerto Rico Broadcasters Association (PRBA) to waive the FCC’s rules limiting the scope of settlements involving mutually exclusive (MX) FM translator applications filed in the Auction 100 MX filing window. The Bureaus had opened a settlement window running through June 14, 2018, during which Auction 100 MX applicants (that is applications that conflict with each other and cannot both be granted without some modification to remove the technical conflict) can file technical amendments to resolve their mutual exclusivities.

The FCC rules place limits on the settlements that can be negotiated by MX applicants for FM translator frequencies. Specifically, Section 74.1233(a) of the FCC’s rules limit the resolution of such conflicts to “minor” amendments which are changes to first, second, or third adjacent channels, or to an intermediate frequency channel.

In its filed request on behalf of the Puerto Rico Broadcasters, Montero and Adamchak argued that the damage caused by Hurricanes Maria and Irma resulted in broadcasters expending considerable resources in restoring broadcast services. Accordingly, the broadcasters in Puerto Rico lacked the resources to settle these conflicted applications within the current “minor” amendment confines of the rule. As such, they requested that the FCC permit Puerto Rico applicants to be allowed to settle conflicts with amendments to any available channel even if not “minor,” provided such amendments did not cause interference to existing or proposed FM stations and complied with the FCC’s coverage requirements for FM translators.

The FCC’s Public Notice states that such waiver requests serve the public interest “by assisting the broadcasting industry to rebuild following the hurricanes and by ensuring that robust radio coverage is provided in areas prone to severe hurricanes.”

Applicants granted waivers of Section 74.1233(a), however, must still comply with all other requirements for technical amendments, and must file their technical amendments by the end of the MX settlement window on June 14.



Upcoming FCC Broadcast Deadlines May – June 2018

Photo used courtesy of the Creative Commons Licence

Do you know what FCC filing deadlines are in the coming months? We do. Time to mark up your calendars so you’re not late on these important deadlines. Call FHH if you have trouble meeting these deadlines or need assistance.

May 15, 2018 – Elimination of the Requirement to File EEO Mid-Term Reports – Reply Comments are due regarding the FCC’s requesting comments on a proposal to eliminate the requirement in Section 73.2080 that TV stations with five or more full-time employees and radio stations with 11 or more full-time employees file mid-term reports on FCC Form 397 with the two most recent public file reports attached.

June 1, 2018 –

EEO Public File Reports – All radio and television station employment units with five (5) or more full-time employees located in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must place EEO Public File Reports in their public inspection files. For all stations this placement now means uploading the reports to the online public file.  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 and located in Arizona, Idaho, Nevada, New Mexico, Utah, or Wyoming must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

FCC Issues Temporary Freeze on Application Filings for Fixed-Satellite Earth Station Licenses and Other Satellites in the 3.7-4.2 GHz “C”- Band

Effective as of April 19, the Commission last week issued a Public Notice announcing a temporary freeze on the filing of new or modification applications for fixed-satellite (FSS) earth station licenses, receive-only earth station registrations, and fixed microwave licenses in the 3.7-4.2 GHz frequency band, known as the C-Band. Currently, the Commission has an ongoing inquiry into the possibility of permitting mobile broadband use in this band and therefore wants to preserve the current authorized operations in the band and have a record of those operations. Exceptions to the freeze are applications for renewal or cancellation, modification to correct location or other data for earth stations and applications for renewal, cancellation, minor modifications, or data corrections for fixed microwave licenses.

An exception to the freeze is a 90-day filing window to file applications for FSS earth stations in the 3.7-4.2 GHz frequency band by entities that own or operate existing FSS earth stations if it isn’t currently registered or licensed. Entities operating such FSS earth stations may file an application to register or license the earth station, or they may file an application to modify a current registration or license. The filing window closes on July 18, 2018

Typically applications for earth station licenses, or registration in the 3.7-4.2 GHz band, would require a frequency coordination report demonstrating coordination with terrestrial stations. The coordination results entitle the FSS earth station to the interference protection levels agreed to during coordination, including against subsequent fixed services licenses. During this filing window the FCC has waived the frequency coordination requirement for the applications. However, if you file the application without a frequency coordination report, the earth station is not afforded protection from fixed service transmissions, but presumably will be protected from any new mobile services the Commission is considering for this band.

If you would like assistance in filing your application for license or registration, please call us.

CBRS: The Path Ahead

The Citizens Broadband Radio Service (CBRS) was originally envisioned as a true people’s broadband radio service – one that would be either free or highly affordable for small, locally-based operations of limited breadth and duration. The paradigm was a conscious break from the Metropolitan Statistical Area – or- larger sized service areas with 10-year renewable terms that have dominated regulatory thinking for the last few decades, effectively limiting the licensees of most new spectrum to billion-dollar companies with plenty of cash to acquire licenses. Those companies have pushed strongly to rearrange at least some portion of the CBRS band into the standard Big Company-favoring model.

There appears to be the strong sentiment on the FCC’s eighth floor for a movement in that direction, so the service has been treading water while the FCC considers whether to increase the size, term, and length of licensed Priority Access Licensees (PAL) operations in the 3550-3700 MHz band. I expect FCC action in the relatively near future since the pace of ex parte contacts has accelerated in the last month. While much remains up in the air as I type, current and potential General Authorized Access (GAA) Citizens Band Radio Service users can nevertheless be thinking ahead about how and whether they can sustain uninterrupted operations under the new CBRS licensing and usage program already adopted by the FCC.

Current system. Under the rules that have governed the use of the 3650-3700 MHz band for the last ten years or so, all users were nationally licensed on a non-exclusive basis. While users were required to cooperate with other licensed users with registered sites and make every effort to avoid interfering with other users, no one is guaranteed interference-free operation. Since usage of this band has not been heavy, it has usually been possible for multiple non-exclusive users to avoid interfering with each other in the same geographic areas. The new regulatory paradigm makes things more complicated.

CBRS. Under the CBRS plan, there will be:

  • Incumbent Users: generally federal government users near the coasts and around certain government facilities, but also Grandfathered Users for a period of time;
  • Priority Access Licensees (PAL): people who acquire priority usage rights through an FCC auction;
  • GAA users: those users who are the equivalent of unlicensed users since they have few rights vis a vis other categories of users or each other.

Federal incumbents will always have the highest priority to use the spectrum and may bump all other users if they need access. Grandfathered incumbents – existing licensees who registered their transmitter sites as of April 16, 2016 and who have kept those stations operational since then – have priority over other PAL and GAA licensees for the duration of their grandfathered term, which will not exceed five years from 2015.*

PAL users have a higher priority than GAA users, have first access to available spectrum, and can bump GAA users if they need spectrum to accommodate what they bought in the auction and no other spectrum is available.

Finally, GAA users register in the system and are assigned spectrum on an “as available” basis. The SAS entity which assigns spectrum to competing users according to the prioritization scheme established by the FCC will try to accommodate all users so they can operate without interference, but no GAA user is entitled by right to interference protection from other users. Here is the FCC rule:

96.35 – General Authorized Access Use

(a) General Authorized Access Users shall be permitted to use frequencies assigned to PALs when such frequencies are not in use, as determined by the SAS.

(b) Frequencies that are available for General Authorized Access Use shall be made available on a shared basis.

(c) General Authorized Access Users shall have no expectation of interference protection from other General Authorized Access Users operating in accordance with this part.

(d) General Authorized Access Users must not cause harmful interference to and must accept interference from Priority Access Licensees and Incumbent Users in accordance with this part.

(e) General Authorized Access Users operating Category B CBSDs [higher powered stations] must make every effort to cooperate in the selection and use of available frequencies provided by an SAS (the System Administrator) to minimize the potential for interference and make the most effective use of the authorized facilities.  Such users shall coordinate with an SAS before seeking station authorization, and make every effort to ensure that their CBSDs operate at a location, and with technical  parameters, that will minimize the potential to cause and receive interference among CBSDs. Operators of CBSDs suffering from or causing harmful interference are expected to cooperate and resolve interference problems through technological solutions or by other mutually satisfactory arrangements.

As with the current system, there is an obligation on the part of all licensees to cooperate to resolve interference problems and there is no right to “hog” a particular spectrum band or even any particular amount of spectrum.

The FCC has expanded the original 3650 – 3700 band by an extra 100 MHz. It has at the same time reserved the 50 MHz from 3650 to 3700 for GAA operations. This means the GAA operators in this band can be bumped by Federal or Grandfathered incumbents, but will not have to worry about PALs demanding access to this band. PALs will be licensed in up to seven 10 MHz channels in the 3550 – 3650 MHz part of the CBRS band. GAA licensees can also operate in that part of the band, but they will be subject to bumping by PALs there. So GAA operators will have 50 MHz to themselves plus an additional 30 MHz that should be available in the band shared with PALs. Continue Reading