FCC Postpones DIRS Exercise to Sept. 13 Due to Hurricane Lane

As we reported yesterday, the FCC was set to conduct a voluntary DIRS exercise Aug. 23 – Aug. 24. However, due to the possible activation of the DIRS for Hurricane Lane set to hit Hawaii this week, the FCC has postponed the DIRS exercise until Sept. 13. The FCC will send out additional information in advance of the postponed DIRS exercise in early September.

Please note, however, that the postponement of the DIRS exercise does not mean that broadcasters do not need to be cognizant of potential activations of DIRS in cases of emergencies such as hurricanes. In particular, Hawaii broadcasters and other communication providers in the path of Hurricane Lane will need to make certain filings with the Federal Communications Commission if the DIRS is activated. Check CommLawBlog for updated information on what broadcasters will need to know during DIRS activation and exercises.

FCC Proposes Rules for Distributing Repack Funds to LPTV, TV Translator, and FM Stations; Part II: FM Stations

(Editor’s Note: If you’re looking for information on LPTV and TV Translators review Part One here.)

Back in March 2018, Congress passed the Reimbursement Expansion Act (REA), which allocated additional funds to be used to reimburse broadcasters involuntarily affected by the post-incentive auction repacking of television stations. In addition to providing additional money for full-power and Class A stations, the REA for the first time expanded the universe of stations eligible to receive reimbursements to include LPTV and TV translator stations, as well as FM radio stations, and directed the Commission to adopt rules governing the details of how the reimbursement program would work for these stations. The Commission has now adopted a Notice of Proposed Rulemaking detailing how it intends to parcel out those funds. While the Commission notes that its proposed procedures to request reimbursement are “substantially similar” to those that have applied to full-power stations, there are some important differences, especially in the types of stations and expenses that will be eligible for reimbursement.

In the REA, Congress allocated a total of an additional $1 billion, with $600 million for fiscal year 2018 and an additional $400 million in 2019. While the majority of these funds are reserved for full-power and Class A stations subject to repacking, the REA did authorize the Commission to award, in fiscal year 2018, up to $150 million to LPTV and TV translators, and up to $50 million for FM stations, along with $50 million for the Commission’s own consumer education efforts. For fiscal year 2019, the REA did not provide any specific allocations of the $400 million total, and in the NPRM, the Commission requests comment on whether it has the authority to award any of these funds to LPTV, TV translator, and FM stations, and, if so, how it should allocate those funds.

In the NPRM, the Commission proposed rules governing which stations are eligible for reimbursement, and what kinds of expenses can be reimbursed, as well as the procedures eligible stations must use to receive funds. Because the proposed rules on eligibility for LPTV and TV translators differ from those for FM stations. Here is part two on the proposed FM rules. For all you LPTV and TV translators out there, review Part One here.

In proposing rules to govern reimbursement to FM radio stations, the Commission takes as a baseline the direction in the REA to reimburse those costs that are “reasonably incurred” by the station as necessary to “reasonably minimize disruption” of service to the station’s listeners. This somewhat more restrictive standard results in different eligibility rules than those applied to television stations, with the Commission concluding that some disruption to FM operations is “reasonable” and therefore not subject to reimbursement.

I. Eligible Stations

The NPRM tentatively proposes to provide reimbursement to both full-power FM stations and FM translators, finding that both were anticipated by the REA. Although the Commission does not believe reimbursement to LPFM stations is required by the REA, the NPRM requests comment on whether such stations should be eligible nonetheless. Eligibility will be limited to stations that were licensed and operating as of April 13, 2017 with facilities that are being impacted by a repacked television station or one that is relinquishing its spectrum rights as part of the auction. The NPRM proposes reimbursement only for costs associated with the location of a facility that is collocated with, adjacent to, or in close proximity to a repacked (or relinquishing) television station. As with the television reimbursement programs, FM stations will not be reimbursed for expenses related to relocating or modifying studio-transmitter links or other broadcast auxiliary facilities. Also as with LPTV/TV translator stations, the NPRM requests comment on whether FM stations impacted by television station maximizations should be eligible for reimbursement under the program.

For purposes of allocating reimbursement funds, the FCC divides these eligible stations into three categories:

  • Category 1: Stations that are being permanently relocated as a result of a television station that is being repacked or relinquishing its spectrum. For example, an FM station that was co-located with a television station relinquishing its license and disassembling a shared tower could be a Category 1 station.
  • Category 2: Stations that are required to temporarily dismantle their facility or make changes that do not require prior FCC approval. Examples of Category 2 stations would be those that needed to temporarily remove their antenna from a tower, or were required to replace a transmitter.
  • Category 3: Stations that are required to temporarily suspend operations or reduce power to allow workers to safely complete work on a repacked full-power or Class A television station. This is predicated to be by far the largest category of impacted FM stations, with the time each station will be off-air or at reduced power to vary greatly among stations.

For Category 1 and 2 stations, the FCC proposes reimbursing licensees for up to 100 % of their eligible costs (as detailed below), provided sufficient funds are available. For Category 3 stations, however, the Commission proposes a more complicated priority system for reimbursements based on how long a station is forced to operate from a temporary facility. Under the procedure proposed in the NPRM, reimbursements would be allocated as follows:

  • Stations off-air (or at reduced power) for under 24 hours, only between 10 p.m. and 6 a.m., or for less than five non-peak broadcast hours per day would not be reimbursed, with the Commission considering such disruption of service to be de minimis.
  • Stations forced to operate from temporary facilities to avoid being off-air or at reduced power for between 24 hours and 10 days would be reimbursed up to 50 percent of eligible costs.
  • Stations forced to operate from temporary facilities to avoid being off-air or at reduced power for between 11 and 30 days would be reimbursed up to 75 percent of eligible costs.
  • Stations forced to operate from temporary facilities to avoid being off-air or at reduced power for more than 30 days would be reimbursed up to 100 percent of eligible costs.

Continue Reading

DIRS Exercise Happening This Week (Aug. 23-24)

On Aug. 15 many broadcast stations received an e-mail from the FCC regarding a Disaster Information Reporting System (DIRS) exercise scheduled for later this week: Aug. 23-24. The DIRS keeps track of the status of both broadcast and non-broadcast communications facilities during natural disasters, including whether a facility is operating, the availability of electric power, and efforts to repair damaged equipment and restore service to the public. During last year’s violent hurricane season, the FCC kept DIRS active for extended periods to keep track of which communications facilities were and were not operational.

While participation is voluntary, we at FHH think that you may want to consider going through the DIRS exercise. The information compiled by DIRS may lead to timely availability of fuel, power, and other things you may need to keep generators running to stay on the air or to rebuild damaged facilities in the event of an actual disaster in the future.

Stations that have previously participated in DIRS should have received a test alert from the FCC. The FCC has also sent test alerts to stations in geographic areas prone to storm damage, including Puerto Rico and Hawaii.

If you want to participate, you should make sure that you have an active account in the DIRS system and that your account information is up to date. You can open or update an account now, or change or retrieve your password, at https://www.fcc.gov/nors/disaster/. If you use the name on your FCC license as the account name, you will be able to use one account to participate for more than one station. The DIRS Exercise will require online reports on both Aug. 23 and 24.

Those participating in this week’s DIRS 2018 Exercise will receive an activation letter at 10 a.m. on Aug. 23. The DIRS will require a company to report 1) whether their stations are transmitting, 2) the power status and locations of transmitters, 3) whether they are able to transmit from alternate locations, and 4) whether the stations have functioning generators. This exercise will help you to prepare your stations to report their status in the event of a real emergency when the FCC activates DIRS.

If you have any questions, please contact us.

Categories: FCC, Media
Tags: Broadcast, DIRS, Natural Disaster, Emergency, Disaster Information Reporting System.

FCC Proposes Rules for Distributing Repack Funds to LPTV, TV Translator, and FM Stations; Part I: LPTV and TV Translators

Back in March 2018, Congress passed the Reimbursement Expansion Act (REA), which allocated additional funds to be used to reimburse broadcasters involuntarily affected by the post-incentive auction repacking of television stations. In addition to providing additional money for full-power and Class A stations, the REA for the first time expanded the universe of stations eligible to receive reimbursements to include LPTV and TV translator stations, as well as FM radio stations, and directed the Commission to adopt rules governing the details of how the reimbursement program would work for these stations. The Commission has now adopted a Notice of Proposed Rulemaking detailing how it intends to parcel out those funds. While the Commission notes that its proposed procedures to request reimbursement are “substantially similar” to those that have applied to full-power stations, there are some important differences, especially in the types of stations and expenses that will be eligible for reimbursement.

In the REA, Congress allocated a total of an additional $1 billion, with $600 million for fiscal year 2018 and an additional $400 million in 2019. While the majority of these funds are reserved for full-power and Class A stations subject to repacking, the REA did authorize the Commission to award, in fiscal year 2018, up to $150 million to LPTV and TV translators, and up to $50 million for FM stations, along with $50 million for the Commission’s own consumer education efforts. For fiscal year 2019, the REA did not provide any specific allocations of the $400 million total, and in the NPRM, the Commission requests comment on whether it has the authority to award any of these funds to LPTV, TV translator, and FM stations, and, if so, how it should allocate those funds.

In the NPRM, the Commission proposed rules governing which stations are eligible for reimbursement, and what kinds of expenses can be reimbursed, as well as the procedures eligible stations must use to receive funds. Because the proposed rules on eligibility for LPTV and TV translators differ from those for FM stations, we will be posting two separate articles – one addressing the LPTV and TV Translator rules and one on the FM rules which will be posted tomorrow.

1.Eligible Stations

The NPRM proposes to limit the universe of LPTV and TV translator stations eligible to receive reimbursements to those that receive a construction permit resulting from an application during the recently-closed Special Displacement Window. Because their applications were treated as if they had been filed during the window, the NPRM proposes including those stations who were subject to displacement before that window opened and filed early displacement applications (with appropriate waivers). The NPRM further proposes that eligibility be limited not just to those stations that filed during the window, but to those whose displacement applications have been granted, although it seeks comment on whether this should include stations whose initial displacement applications are dismissed, but who are later able to re-file for displacement relief and obtain a grant, as long as they had originally been eligible to file in the initial the Special Displacement Window.

Eligible stations also must have been operating pursuant to a license (or a pending covering license application) for at least nine of the 12 months prior to April 13, 2017. For purposes of this determination, the Commission proposes to consider a station to have been “operating” as long as it was broadcasting at least two hours per day and 28 hours per week; a standard it incorporates from the minimum operating schedule requirements applicable to full-power television stations and one that has already generated concern among many LPTV operators.

The NPRM further proposes that digital replacement translators, assuming they meet other eligibility criteria, will be able to apply for reimbursements. The Commission takes pains to note, however, that Class A stations, which are already eligible for reimbursement under the existing program, will not be able to apply for funds allocated to LPTV and TV translator stations.

2. Eligible Costs

Under the REA, the Commission was authorized to reimburse costs “reasonably incurred” as a result of the repack. In the NPRM, the Commission proposes to reimburse costs incurred as a result of the displacement of LPTV and translator stations by full power and Class A station’s initial post-auction applications, but requests comment on whether displacements caused by post-auction facilities improvement (“maximization”) applications should also be reimbursed. Because maximizations were not required in the repack, the NPRM asks whether those costs can be reasonably attributed to the repack, and hence qualify for reimbursement.

For displaced LPTV and translator stations, the NPRM proposes to reimburse eligible stations’ costs actually incurred in building out approved displacement facilities. Both hard (e.g., equipment) and soft (e.g., legal and engineering fees) costs would be reimbursable, but in the event that the reimbursement find is not sufficient to cover all costs, hard costs would be prioritized. No reimbursements would be provided to cover lost revenues or upgrades to equipment, a restriction also applied to full power and Class A station reimbursements and one that will likely come into play because most, if not all, new transmitters will have ATSC 3.0 capability and other upgraded features that were not present in the equipment that they replace. (Note that this does not prohibit stations from purchasing upgraded equipment – it only limits their reimbursement to the cost of replacement equipment.  Any additional costs must be borne by the licensee). Also like full power and Class A stations, LPTV and TV translator stations would be encouraged to reuse existing equipment and would need to justify any new equipment purchases. Unlike full power and Class A stations, LPTV and translator stations would not be able to receive reimbursement for interim facilities, based on the Commission’s conclusions that such facilities would largely not be necessary for LPTV and translator stations (a conclusion that appears to ignore stations displaced by 600 MHz auction winners that must abandon their licensed channel before they can move to a new channel that will not become available until full power and Class A stations in their market implement their own transition to new channels).

Under the NPRM, only costs incurred after January 1, 2017 would be reimbursable. Costs incurred in reaching an agreement in the upcoming settlement window for mutually exclusive applications would not be reimbursable (although costs to build out amended proposals approved pursuant to a settlement would be), nor would any costs arising from an auction, if required to resolve any mutual exclusivity.

Finally, recognizing that some LPTV and translator stations have received, or will receive, funds from T-Mobile and other wireless licensees causing displacements, or through other sources such as state grants, the NPRM requests comment on whether such stations still should be eligible to receive reimbursement from the FCC. The Commission also requests comment on whether stations eligible to receive funds from such sources should be required to pursue those funds before being eligible for reimbursement from the Commission, both to avoid the possibility of duplicative payments for the same expenses and to force licensees to obtain money from other sources before dipping into federal funds. Continue Reading

RMLC and GMR Agree to Extend Interim License for Another Six Months

We have been following the ongoing saga that is the dispute-turned-litigation between the Radio Music License Committee (RMLC) and Global Music Rights (GMR) since late 2016, providing several updates along the way. What started as an impasse between a main representative of commercial radio stations in the country on music licensing issues (the RMLC) and a Performing Rights Organization representing the interests of copyright owners in musical works (GMR) has spawned a lawsuit filed by the RMLC alleging anti-competitive behavior by GMR, a countersuit by GMR alleging anti-competitive behavior by the RMLC, and a temporary rapprochement in the form of an interim license agreement that allows RMLC-represented stations to perform musical works in the GMR repertory.

The interim license agreement has been extended twice as the lawsuits are pending. The initial agreement ran from January 1, 2017 through September 30, 2017; it was extended under the same terms and conditions until March 31, 2018; a second extension kept the interim license agreement in place – again with the same terms and conditions – until September 30, 2018.

As the end of that second extension approaches and the underlying litigation continues, we have news of another (third) six month extension. According to a press release issued by the RMLC on August 17, 2018, GMR has offered to extend the interim license agreements currently in place. Those radio stations who extend will be covered by the interim licenses through March 31, 2019. Once again, the same terms and conditions will apply.

What do commercial radio stations need to do?

Stations currently performing musical works from the GMR catalog under an interim license:  keep your eyes peeled for a communication from GMR. According to the RMLC, stations who have not been contacted by GMR by September 15, 2018 should proactively contact GMR – do NOT contact the RMLC – regarding the status of your license.

Stations that do not have an interim license with GMR (or perhaps haven’t even heard of GMR): contact an attorney to discuss whether you need the GMR interim license and, if so, how you can acquire that interim license.

As always, check this space for developments on both the RMLC-GMR licensing and litigation fronts.

EAS and WEA National Tests Scheduled for Thursday, Sept. 20; ETRS Form 1 due Aug. 27

The Federal Emergency Management Agency (FEMA) and the FCC have announced Thursday, Sept. 20 at 2:20 p.m. EDT as the scheduled date and time for this year’s annual nationwide test of the Emergency Alert System (EAS). (Note that unlike the past two years, the scheduling date is on a Thursday, not a Wednesday as some may be accustomed.)

Immediately preceding the EAS national test, FEMA this year will also conduct a test of the Wireless Emergency Alert (WEA) system, which delivers emergency alerts to cell phones and other wireless devices.  All wireless providers who have opted to participate in the WEA will be required to participate in this first national test of that system.  Although EAS participants do not need to take any additional action because of the WEA system test, users should be aware that all WEA-capable wireless devices in the nation will receive a test message at 2:18 on Sept. 20.

As with previous nationwide testing of the EAS, participants should file their ETRS Form 1 providing information about their EAS equipment, this year by Aug. 27, in advance of the national test. On Sept. 20, the FCC will expect participants to monitor their equipment and file a “day-of-test” ETRS Form 2 by the end of the day on Sept. 20.  As in past years, Form 2 will simply require the EAS participant to certify whether it received and retransmitted the national test message.

Based on our previous experiences with EAS testing, we would expect that there will be some congestion in the ETRS system after the test, so you should probably be prepared to spend some time completing your filings.

Finally, all EAS participants will also be required to file a post-test ETRS Form 3 on or before Nov. 5. Form 3 will require participants to identify the specific times at which they received and retransmitted the test message, the source(s) from which they received the test message (including which source it was received from first), the language in which the message was received and retransmitted, and any complications they experienced.

Please contact us if you have any questions about the EAS or WEA National Tests or ETRS systems and filings.

FCC Streamlines Pole Attachment Rules to Promote Broadband Deployment

On Aug. 3 the Federal Communications Commission adopted a Report and Order and Declaratory Ruling which streamlined pole attachment procedures and preempted state and local laws regulations, and policies imposing a moratoria on telecommunications deployment. The FCC’s actions seek to speed the process and reduce costs associated with new utility pole attachments to facilitate broadband deployment across the country. So let’s break this all down for you.

Report and Order

In the Report and Order, the FCC implemented new rules streamlining the attachment of telecommunications equipment on utility poles – a process referred to as “make ready.” Specifically, for simple wireline pole attachments in the communications space of utility poles (i.e., the middle section of most poles), the FCC implemented new procedures referred to as “one-touch make ready” (OTMR), whereby new attachers move existing attachments and perform all other make ready work required for new attachments. The new procedures for OTMR attachments also speed up the approval and installation timelines for new attachments covered by the OTMR policy by: 1) reducing the approval timeframe for new OTMR attachments from 45 to 15 days; and 2) encouraging new attachers to complete all work within one trip – as opposed to the former 60-day make ready timeframe for wireline equipment in the communications space of utility poles.

The FCC’s OTMR procedures, however, do not apply to “complex” make ready work (i.e., work requiring relocation of existing equipment and work reasonably likely to lead to service outages) and new attachments to be installed above the communications space of poles – including small cell pole-top attachments necessary for 5G deployment. Nevertheless, the FCC adopted new policies for new attachments ineligible for the OTMR process that shorten the deployment timeline for affected equipment. For example, the FCC reduced the make ready timeframe for non-OTMR attachments in the communications space from 60 to 30 days, and shortened the make ready period for non-OTMR attachments above the communications space (e.g., small cell pole-top attachments) from 90 to 60 days. The new policies, however, do not appear to address directly the installation of distributed antenna systems (DAS) – which are installed in the generally unusable pole sections below the communications space – as the FCC otherwise declined to adopt a blanket ban on the installation of such devices in the “unusable spaces” of utility poles.

Continue Reading

Upcoming FCC Telecom and Broadcast Deadlines August 2018

Do you know what FCC telecom and broadcast deadlines are approaching? We do. Time to mark up your calendars so you’re not late on these important deadlines. Call FHH at (703) 812-0400 if you have trouble meeting these deadlines or need assistance.

Telecom Deadlines:

August 3, 2018 – Quarterly 911 Live Call Data Reports – Nationwide CMRS providers must report aggregate live call data collected for the preceding quarter.

Biannual 911 Live Call Data Reports – Non-Nationwide CMRS providers must report aggregated live call data for the preceding quarter.

Indoor 911 Call Location Accuracy Second Progress Report – All CMRS providers must submit their first progress reports on the implementation of indoor 911 call location accuracy requirements.

NEAD Privacy and Security Plan  Nationwide CMRS providers must develop and submit a detailed NEAD Privacy and Security Plan with their Second Progress Reports.

August 14, 2018 – Quarterly PIU Reporting and Certification – Prepaid calling card providers (PCCPs) must report the percentage of interstate use (PIU) factors and associated call volumes to carriers that provide them with transport services.  Additionally, PCCPs must file traffic information and a certification signed by a company officer stating that the provider is in compliance with the FCC’s PIU and USF reporting requirements.

Broadcast Deadlines:

August 1, 2018  EEO Public File Reports – All radio and television stations with five or more full-time employees located in California, Illinois, North Carolina, South Carolina, and Wisconsin must upload 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 located in California with five or more full-time employees must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

August 6, 2018 – FM Translator Interference Complaint Rules – Comments are due in response to the FCC’s Notice of Proposed Rulemaking (MB Docket 18-119) requesting comments on a proposal to streamline the rules on interference caused by FM translators and to expedite the translator complaint resolution process.

FCC Adopts Uniform Formal Complaint Procedural Rules

After decades of handling formal complaints using no less than three different sets of rules, the FCC has finally adopted uniform procedures that generally apply to all formal complaints filed with the Commission. Alongside Chairman Ajit Pai, Commissioners Michael O’Rielly and Brendan Carr praised the measure to get formal complaints all under one roof. However, Commissioner Jessica Rosenworcel said that the measure was “bonkers” because in her view, the new rules impose barriers that inhibit consumers from being able to file complains about their carriers. News outlets have jumped on this bandwagon, mischaracterizing the new procedures as requiring all customers to pay a new fee just to file complaints against their carriers. Contrary to what you may have read, consumers can still file informal complaints through the FCC’s online complaint portal without paying anything, and companies must respond to informal complaints within 30 days using the FCC’s clunky web interface, which is completely intuitive and user friendly in a Rube Goldberg-esq sort of way, but without the fun and entertainment factor. The new rules only apply to formal complaints filed with the FCC, and the FCC’s informal complaint procedures remain unchanged.

But first, a little history lesson is in order before we dive into the details of the new rules: The FCC’s first complaint rules were adopted in 1978 to handle pole attachment complaints, which did not provide procedures for, among other things: joint statements, discovery, or status conferences. Then, in 1997, the FCC adopted rules for formal complaints filed under Section 208 of the Communications Act, which are generally complaints against common carriers. The FCC modified its Section 208 formal complaint rules in 2001 regarding procedures related to answers, replies, and supplemental damages complaints. Finally, in 2011, the FCC adopted rules governing formal complaints filed under Sections 255, 717, and 718 of the Act regarding violations of the FCC’s disability access rules. The FCC’s disability access complaint rules were pretty similar to the rules for Section 208 complaints, but without the ability to speed things up through the accelerated docket procedures.

The FCC decided to use its existing Section 208 complaint rules as a model for its uniform formal complaint procedural rules. Here some highlights of the new rules: Continue Reading

FCC Announces Comment Deadline for Proposed New Kid Vid Rules

We wrote on July 5 that the FCC released a Draft NPRM intended to significantly relax the Kid Vid rules. The Commission officially adopted the NPRM at its July meeting on July 12. The Commission’s Media Bureau has now announced that comments will be due for the Children’s Television Programming NPRM on Sept. 24 and reply comment will be due by Oct. 23.

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