Reminder: EAS National Test Scheduled for Sept. 20, But Don’t Use EAS Tone Outside Test

Unless it is delayed by a real national emergency, the Federal Emergency Management Agency and the FCC are on track to conduct a combined nationwide test of the Emergency Alert System (EAS) and the Wireless Emergency Alert (WEA) system on Thursday, Sept. 20, at 2:20 p.m. EDT.

Should you decide to air any news coverage or other discussions of the test, one thing you might not have thought about is the need to avoid the use of the EAS alert tone or anything that sounds too much like it in your reports. The Commission has cautioned stations against unthinkingly including the alert tone in coverage of the test. Generally, the FCC is not amused by any use of the EAS tone outside of an actual alert or test and has come down like a ton of bricks on stations that used it in other contexts. The fines they have imposed aren’t ones you want to mess around with, as we’ve previously reported on the blog. Consider yourselves reminded and warned.

As for more mundane matters related to the test, EAS participants should have already filed their ETRS Form 1 providing information about their EAS equipment. On Sept. 20, the FCC will be expecting stations to monitor their equipment and, for most stations, to file “day-of-test” ETRS Form 2 by the end of the day. Finally, all EAS participants will also be required to file a post-test ETRS Form 3 no later than Nov. 5. Based on the Form 3 currently available in the ETRS system, participants will be required to identify the specific times at which they received and retransmitted 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.

Based on our experience with last year’s test, 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. Please contact us if you have any questions about the EAS test, the WEAS test, or the ETRS systems.

FCC Activates DIRS for Hurricane Florence; Postpones DIRS Exercise

The FCC issued a Public Notice activating its Disaster Information Reporting Service (DIRS) as Hurricane Florence, a Category 4 storm, is set to make landfall in the Carolinas and Mid-Atlantic regions causing catastrophic flooding, high winds, and heavy rains. Broadcasters and other communications providers in those regions are encouraged to voluntarily supply certain filings with the Federal Communications Commission. These voluntary filings are meant for communications providers to report their infrastructure status and information during emergency situations.

The DIRS has been activated and reports are requested beginning at 10:00 a.m. on Sept. 13 and every day thereafter by 10:00 a.m. until the DIRS is deactivated. During this time, the Network Outage Reporting System obligations have been suspended until the DIRS is deactivated.

The FCC has asked broadcasters, cable operators, and wireless and wireline telecommunications (including VoIP) providers in areas affected by the storm in those regions to submit and update information through DIRS regarding the status of their communications equipment, restoration efforts, and power situation (for instance, power failure backup systems). Providers who haven’t previously submitted to the DIRS must provide contact information and obtain a User ID to access DIRS.

Additional information can be found at https://www.fcc.gov/florence. Reach out to us if you have any questions on submitting reports to the DIRS, or other disaster-related issues. This also means that the DIRS exercise, previously scheduled for Sept. 13-14, has been postponed.

But most important of all: please stay safe as you continue to provide much-needed public safety updates to your communities!

FCC Proceeding on C Band Use and Receive Only Earth Stations Moves Forward; Comments Due Oct. 29

The Commission issued an Order and Notice of Proposed Rulemaking in the proceeding relating to the use of the 3.7 to 4.2 GHz band. As we’ve previously written, the Commission has been considering allowing the use of the 3.7 to 4.2 GHz band (known as the C band) by mobile broadband. The C-band is currently used to deliver cable and broadcast network programming and the Commission has opened a filing window for C Band receive only earth stations until Oct. 17.

The Order provides for the Commission to collect information on satellite usage of the C band to allow it to make an informed decision about the future use of the band. The Order provides that earth station operators provide additional information with the Commission. The Order directs the Wireless Telecommunications Bureau, International Bureau, and the Office of Engineering and Technology to issue a Public Notice that will 1) provide detailed instructions for earth station licensees to provide additional information about their facilities; and 2) establish a window for initial filings of information. The information the Commission is requesting would be similar to that information requested in an application or registration. The Commission is also requesting information from the space station licensees. The Commission has not yet issued its Public Notice with specific instructions but one should be forthcoming.

In the Notice of Proposed Rulemaking (NPRM) portion in the proceeding, the Commission seeks comments on the future usage of the C band and how to deal with protection for the incumbents. The Commission proposes to define the incumbents as those earth stations that were operational as of April 19, were licensed or registered (or had a pending application for license or registration) as of Oct. 17 and have timely filed information in response to the Commission’s Public Notice collection information or certified the accuracy of information on file with the Commission. The Commission proposes to exclude those earth station not licensed or registered or those facilities for which the licensees do not timely file the information required in the Order. The Commission is also requesting specific comments on defining the protection to which an incumbent would be entitled.

In the NPRM the Commission proposes to permanently limit the filing of applications for earth station licenses in the C band to those incumbent earth stations. This would mean that the earth stations that are registered or licensed by Oct. 17, 2018, would be able to modify these stations at the registered location but not add new stations in new locations, and applications for new earth station registrations would not be allowed.

The Commission also seeks comment on how to maintain the accuracy of IBFS going forward. It also requests input on whether C band receive only earth stations should be entitled to protection only for those frequencies, azimuths, and elevations angles and other information on file with the Commission until the incumbent files an application to modify its license.

The Commission’s Order and NPRM demonstrates that it is very important for licensees of C Band receive only earth station that were constructed and operational as of April 19 register or license their earth station by the Oct. 17, 2018 deadline to receive protection from the future allocation of the band.

Comment deadlines were announced on the NPRM and comments are requested by Oct. 29, and reply comments by Nov. 27, 2018.

Copyright Enters the Twilight Zone (A Series of Controversial Decisions May Not Be as Bad as They Seem: Part Two)

If you read the first part of this two-part post on some bizarre copyright decisions emanating from federal courts in 2018, you know I left you with a cliffhanger. Copyright law was seemingly turned on its head when a federal court judge in New York declared that embedding tweets with photos could be considered direct infringement of a copyright owner’s display right in those photos. Or did it?

Judge Katherine Forrest asserted that her decision would not prove as consequential in fact as many feared because defendants facing liability after embedding tweets in their websites might still have many defenses at their disposal.

I surprised myself by eventually agreeing with that position, based on two fair use cases that were also decided this year.

The first case is Philpot v. Media Research Center. Decided on Jan. 8 by Judge T.S. Ellis III, it involved photos taken by professional photographer Larry Philpot. Both were concert photos of famous musicians engaged in performance: Kenny Chesney and Kid Rock. They were each uploaded to the Wikimedia website where they were made available via a Creative Commons attribution license, version 3.0. That license allows free use of the photos but requires attribution to the original photographer. The photos were published by the Media Research Center, a 501(c)(3) non-profit that “publishes news and commentary regarding issues of public debate in order to expose media bias against American Judeo-Christian religious beliefs.” The Chesney photo was published as part of an article titled “8 A-List Celebrities That Are Pro-Life” while the Kid Rock photo was published in an article titled “Kid Rock Announces 2018 U.S. Senate Bid.”

Neither photo contained the required attribution to photographer Larry Philpot; as a result, they fell outside the scope of the terms and conditions of the Creative Commons 3.0 license (although this post focuses on fair use, I’d be remiss if I didn’t stress the fact that it is of the utmost importance to read all the terms and conditions of a Creative Commons or other license and follow them to the last detail). Because it didn’t have permission to use the photos, the Media Research Center raised several defenses, including fair use.

For those who aren’t already familiar, fair use is a doctrine under the Copyright Act that provides certain uses of copyrighted works are “not an infringement.” While this language suggests that the plaintiff bears the burden of proof in demonstrating that a particular use is not “fair use,” most courts have treated fair use as an affirmative defense and placed the burden of proof on the defendant to show that a use was fair. Fair use claims are resolved by analyzing four non-exclusive factors:

  • “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”;
  • “the nature of the copyrighted work”;
  • “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and
  • “the effect of the use on the potential market for or the value of the copyrighted work.”

Judge Ellis focused – as most do – on the first and fourth factors, concluding that the Media Research Center’s use of these photos in this way was “fair.” Among the high points of his decision are:

  • The use of both the Chesney and Kid Rock photos was noncommercial and transformative because “[t]he undisputed factual record discloses that the ‘expression,’ ‘meaning,’ and ‘message’ of defendants use of the photographs here is plainly different from plaintiff’s intended use of the photographs.” Philpot, a professional photographer of musicians, took these photos to depict Chesney and Kid Rock in concert. By contrast, the Media Research Center used the photos for purposes of news and commentary; in fact, these photos were surrounded by content and commentary unrelated to the musicians performing in concert. Judge Ellis found that “because defendant used the Chesney and Kid Rock photographs in a new context, to tell new stories about the musicians as pro-life advocates or candidates for office, defendant’s use of the photographs was transformative.” Further, there was only nominal commercial gain commercial because the Media Research Center only received a small amount of revenue in connection with these stories (about $26 from advertising on those pages and maybe $50 in donations through related links).
  • Regarding “the nature of the work factor,” the original Philpot photos were both factual and creative, so this factor did not favor either party.
  • Because the Media Research Center used all of one photo and almost all of the other, the “amount and substantiality” factor pointed against fair use.
  • There was no detrimental effect on the economic market for these photos because Philpot never intended to sell the photos (as evidenced by his posting them to Wikimedia) and, in fact, had not received any revenue from them. Further, “[a]ny speculative economic effects on the future economic market for plaintiff’s Chesney and Kid Rock Photographs owing to a lack of attribution do not outweigh the lack of direct economic effects and defendant’s general non-commercial use of the Photographs.”

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FCC Releases Annual Regulatory Fee Order – Payments Due Sept. 25

While we all hit the beach for the last time this Labor Day weekend, the FCC today released the final listing of regulatory fees for 2018 and their due dates. Although the FCC has not yet activated the Fee Filer system for 2018 regulatory fees, we expect that to happen very soon.

Fees must be paid by Tuesday, Sept. 25

As is normally the case, the fees adopted by the Commission all track reasonably closely with the fees as proposed in May (the only fees that have changed are those for Interstate Telecommunications Service Providers and for International Bearer Circuits). For the most part, the specific fees for 2018 (with a few exceptions) represent decreases from the amounts due in 2017.

As has always been the case, failure to pay regulatory fees on time can have serious consequences, including: a late payment penalty of 25 percent of the unpaid amount assessed immediately after the deadline; additional processing charges for collection of late fees; and administrative penalties, such as withholding of action on any applications from delinquent parties, eventual dismissal of such applications, and even possible revocation proceedings.

Consistent with recent procedure, don’t bother reaching for your checkbook when you’re ready to pay. Under the electronic filing regime, regulatory fee payments must be made electronically (i.e., by online ACH payment, online credit card, or wire transfer). That means, no checks, money orders, bags of pennies, monopoly money, or anything else physical.  Also, no Bitcoin or other virtual currencies.

The maximum payment that can be charged to a single credit card on a single day remains at $24,999.99, which applies to both single and bundled payments. If you owe more than $24,999.99 for a single license, you will not be permitted to split up the payment into multiple payment transactions, nor will you be permitted to pay over several days by using one or more credit cards. The FCC recommends that anyone expecting a fee obligation of $25,000 or more consider using debit cards, ACH debits from a bank account, or wire transfers.

If you aren’t familiar with the FCC’s online Fee Filer system, we recommend that you not wait until the last minute to try to figure it out. It’s not especially user-friendly or intuitively obvious. (Of course, if you don’t feel like doing it yourself, you can always ask your communications counsel to help out.)

You can log into the fee filer system here using your FCC Registration Number (FRN) and password or your CORES username and password, generate a Form 159-E (which you’ll need to tender as part of the payment process), and then get on with the payment process. (If you’re paying by wire transfer, you’ll have to fax in your 159-E.)

When it comes around to figuring out exactly what you owe, just a heads up: While Fee Filer will ordinarily list fees associated with the FRN used to access the system, the list of fees shown in Fee Filer may not be complete. (The same is true for the broadcast regulatory fee “lookup” page the Commission usually provides.) As a general rule, it’s the payer’s responsibility to confirm the fullest extent of the payer’s regulatory fee obligation so double- and triple-checking other FCC databases, as well as your own records, is prudent.  In one continuing bit of good news for broadcast filers, there are once again no fees due for broadcast auxiliary licenses.  It is also worth noting, as the FCC made a point to, that all television licensees who held a license on September 30, 2017 must pay regulatory fees, even if they have since relinquished that license as part of the Incentive Auction.

Upcoming FCC Telecom and Broadcast Deadlines September – October 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.

Broadcast deadlines:

Sept. 20, 2018 – EAS National Test – Participants’ ETRS Form Two Due – All EAS participants must be prepared for the national EAS test on Sept. 20 at 2:20 p.m. EDT.  Additionally, all participants must prepare and file in the EAS Test Reporting System (ETRS) a Form Two for each station by 11:59 p.m. EDT on Sept. 20.  This form is scheduled to become available at 2:20 p.m. EDT, immediately following the EAS test, and will provide information as to the results of the test.

Sept. 25(?), 2018 –Annual Regulatory Fees – While this date has not yet been publicly announced, annual regulatory fees will be due, likely on Sept. 25 and certainly before Sept. 30, 2018.  These will be due and payable for Fiscal Year 2018, and will be based upon a licensee’s/permittee’s holdings on Oct. 1, 2017, plus anything that might have been purchased since then and less anything that might have been sold since then.  The fees must be paid through the FCC’s online Fee Filer, and once again this year, the FCC will not accept checks as payment of the fees, but will require some form of electronic payment (credit card, ACH transfer, wire transfer, and the like). Please keep in mind that timely payment is critical, as late payment results in a 25 percent penalty, plus potential additional interest charges.

Oct. 1, 2018 – EEO Public File Reports – All radio and television stations with five (5) or more full-time employees located in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington must place EEO Public File Reports in their public inspection files. TV stations 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 with five or more full-time employees in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, or Washington must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

Oct. 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 checking, 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 are 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 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.

Telecoms deadlines: 

Sept. 2018 –  TBD Annual Regulatory Fees – Deadline for filing and payment of annual FCC regulatory fees by all interstate telecommunications service providers based on the amount of interstate and international revenue reported on a provider’s FCC Form 499-A.

Sept. 1  – Local Telephone Competition and Broadband Report – Facilities-based providers of broadband services to end-users must report certain broadband deployment data on FCC Form 477.

Comment Deadline Set for NPRM on Rules for Distributing Repack Funds to LPTV, TV Translator, and FM Stations; Comments due Sept. 26

As we reported last week, the FCC has proposed new rules to distribute the funds allocated under the Reimbursement Expansion Act (REA). These funds are to be used to reimburse broadcasters that were involuntarily affected by the post-incentive auction repacking of television stations. Under the REA and the proposed rules, FM radio stations and LPTV and TV Translator stations are now eligible for reimbursement funding. With the NPRM’s publication today in the Federal Register, comments can be filed until Wednesday, Sept. 26 with reply comments due Friday, Oct.  26.

As we wrote about last week, Congress allocated a total of an additional $1 billion in reimbursement funds, with $600 million for fiscal year 2018 and an additional $400 million in 2019. For additional information read up on our posts for LPTV and TV Translators and for FM Stations.

Copyright Enters the Twilight Zone (A Series of Controversial Decisions May Not Be All that They Seem: Part One)

[Editor’s Note:  This is the first of a two-part episode on three copyright decisions issued by federal courts in 2018 that relate to the use of photos in news reporting; the second part will be posted next week.]

Picture for a moment a man. Not an ordinary man by any stretch. This man is Tom Brady. Quarterback. Five-time Super Bowl winner. Future Hall of Famer. Husband to a Supermodel. And from all appearances, a good father, and overall a decent person.

Yet this man has a way of courting controversy at all turns. Not drafted until the sixth round, he quickly supplants Drew Bledsoe, a man who many thought would be the future of the New England Patriots, as the team’s quarterback. He succeeds; perhaps too well, as the Patriots become the Evil Empire of the NFL over the past two decades. Yes, Bill Belichick is the lightning rod for most of opposing fans’ ire, but Brady has his haters too. Let’s not forget a little thing called “Deflategate.” Or his statement that his rigid workout regimens and strict (and somewhat quirky) dietary restrictions would allow him to play well into his forties – and keep him eternally young and handsome.

For all these reasons – the fact that he’s apparently found the Fountain of Youth, the on and off field success, the polarizing figure he’s become – it is really easy to picture Tom Brady. The world is filled with pictures of Tom Brady. And one of those pictures has now become extremely controversial in a legal sense.

Which brings us to the heart of the matter – a February 15 decision by Judge Katherine Forrest in Goldman v. Breitbart, News Network LLC. The scene is the Hamptons, July 2, 2016. Tom Brady is seen with Danny Ainge, the general manager and President of the Boston Celtics. They are assumed to be there as part of the Celtics’ pitch to Kevin Durant, the most sought after free agent in the NBA that summer. Another man – this one an ordinary man who goes by the name of Justin Goldman – takes a photo of Brady and uploads it to his Snapchat Story. In 24 hours, that would generally be the end of the story, as the photo would disappear from that platform. But, as a photo of Tom Brady in the Hamptons just as the Celtics are believed to be wooing Kevin Durant will do, this photo goes viral and eventually ends up being uploaded to Twitter by several different people.

Several prominent news outlets, including, among others, Time, Inc (owner of Sports Illustrated), Yahoo, Vox, Gannett, the Boston Globe, NESN, and Breitbart News “embed” the Tweets into their online stories about a possible Celtics-Durant connection.

In this case, none of the defendants – according to Judge Forrest – actually copied and pasted the photo onto their own servers for display on their websites; instead, they follow the now-common practice of embedding content under a process allowed by the platform on which that content is found. Embedding is prevalent today because it is so easy to do and, until now, widely believed to be legal. The user simply needs to add a specific “embed code” to the HTML instructions when seeking to include a certain piece of content in a story. The underlying content – in this case the Tweet containing a picture of Tom Brady and Danny Ainge – remains on the original server – in this case, Twitter – even as it appears on the user’s website.

It’s that last part that has made embedding seem relatively safe from a copyright infringement perspective.  Until now, some courts – with the Ninth Circuit taking the lead – have analyzed embedding under the so-called “Server Test,” which provides that where the underlying photo at issue resides on the original server, the embedding party isn’t violating any of the exclusive rights held by the copyright owner – most notably the reproduction and display rights. The “Server Test” was the theory advanced by the media defendants in Goldman when Goldman sued them (although, notably, not any of the individuals who actually copied Mr. Goldman’s original photo from Snapchat Story and uploaded it to Twitter). Judge Forrester summarized the Server Test by referencing Perfect 10, Inc. v. Google, Inc., the case that adopted that test, which was decided by the United States District Court for the Central District of California in 2006 and affirmed by the Ninth Circuit in 2007. Judge Forrester described that case as holding that images “which were stored on third-party servers and accessed by ‘in-line linking’ – which works, like embedding, based upon the HTML code instructions – were not infringements.”

The Server Test stands in stark contrast to the “Incorporation Test,” a test that had been proposed by the plaintiffs in Perfect 10 and that would define display as “the act of incorporating content into a webpage that is then pulled up by the browser.” The Incorporation Test generally favors copyright owners, as under that test, incorporating content into your website would mean that your website is actually displaying the content in question. The Server Test, by contrast, takes the view that the material is still being displayed solely from the server on which it resides.

The Server Test is believed to have carried the day since 2006. But Judge Forrester’s decision may be changing that, as she ruled in favor of Justin Goldman, the plaintiff. Judge Forrester reviewed several similar (though not identical) cases from around the country and concluded that the Server Test has really never caught hold outside of the Ninth Circuit (which covers the far western states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington). In fact, she noted, four courts in the Southern District of New York have actually discussed the Server Test, with none of them holding that it applies to the display right in a case involving a claim of direct infringement. Rather, she noted, those other in-district cases either involved application of the distribution right or disputed factual issues that precluded summary judgment were applying the display right in the context of contributory infringement. She concluded her review of decisions from both the Southern District of New York and other jurisdictions as follows: Continue Reading

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.

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