The final element of the Commission’s late November STELA trilogy has been published in the Federal Register. As we reported last month, at Congress’s behest the Commission rammed through a number of revisions to its rules relative to satellite carriage of broadcast programming. One set of changes involved the signal strength measurement procedures used to determine the actual – as opposed to the predicted – DTV signal at any specific location. The Report and Order setting out those changes has now made it into the Federal Register, which in turn establishes their effective date: January 27, 2011. (Note, however, that because Section 73.686(e) requires prior OMB approval, that section will not become effective on that date.)
Bootstraps Auction Preference Under Consideration
Bureaus seek comments on possible auction preference for those who have “overcome disadvantage”
Holy Horatio Alger!! If you’re a modern day Ragged Dick, looking to pull yourself up by the bootstraps through grit, determination, clean living, etc., your kind benefactor may be none other than the FCC. The Commission (or at least one of its Advisory Committees and two of its Bureaus) is considering the establishment of a spectrum auction “preference” for individuals or entities who have “faced substantial disadvantages and overcome those disadvantages”.
But don’t get your hopes up yet. The idea is in its earliest stages, and raises a host of conceptual and practical problems. Despite that, the Media and Wireless Bureaus have asked for comment on the notion.
The idea was propounded by the Commission’s Advisory Committee on Diversity for Communications in the Digital Age, which submitted recommendations to the Commission back in October. (You can find a link to the recommendations here.) According to the Advisory Committee, the suggested preference would “expand the pool of well-qualified applicants for FCC licenses” and, in the case of broadcast services, possibly enable “applicants who otherwise might not be able to obtain FCC licenses to compete in auctions for broadcast licenses and if successful, contribute to viewpoint diversity”. As the Advisory Committee sees it, folks who have “faced and overcome substantial disadvantage” have certain “unique strengths” that might be “underrepresented and undervalued” in the Commission’s application processes absent some preference program.
If all this sounds just a little vague to you, you’re not alone.
Update: Revised Forms Head To OMB
The mills of bureaucracy grind slowly, but they do eventually grind.
Last October we reported on changes to the broadcast license renewal application form (Form 303-S) that were in the works. Those changes appear to have passed the first bureaucratic hurdle: having invited public comments (which were due by December 13) and then having waited a decent interval (that would be about two days), the Commission has passed its proposed changes along to the Office of Management and Budget for OMB’s review. Notice of that development has now been published in the Federal Register. This gives everybody yet another opportunity to toss in any comments they might have about the revised form – but this time those comments should be directed to OMB. If you’ve got anything to say to OMB, you’ve got until January 26, 2011 to say it. Once that deadline has come and gone, look for the revised form to be officially released by the Commission, just in time for the next round of renewal applications which are due by June 1.
And along the same lines, the Commission’s efforts to plug a loophole have advanced to OMB. You may recall our post from last November, addressing the question of whether or not digital LPTV, Class A TV and TV translator stations were expected to file Form 317 in December. (Form 317 is the annual “Digital Ancillary/Supplementary Services” report in which digital TV stations tell the Commission whether they’ve aired any subscription-like services on any of their digital streams.) While there were ample indications that the Commission might have intended LPTV, Class A and translator licensees to file – and while some such licensees may already have been filing the reports out of excess of caution – the Commission hadn’t bothered to amend Form 317 to include such stations within its reach. And without a properly revised form, LPTV’s, Class A’s and translators were off the hook.
The Commission figured that out last Fall and started to amend its form, but it was too late to do any good before the December 1 deadline for this year. But next year is a different story. The revised form has now been shipped over to OMB for its once-over. Interested parties have until January 26, 2011 to submit comments to OMB. Given the 11-month headstart, we fully expect that the revised Form 317 will be awaiting all LPTV, Class A and translator licensees come the next deadline in December, 2011.
Ho-ho-ho – Net Neutrality Order Released
Who says the Christmas spirit didn’t survive the 20th Century? Not us! And, apparently, not the FCC, which took the time – on the eve of Christmas Eve – to release the full text of its Net Neutrality decision. All 194 pages. Actually, the decision itself is only 87 pages long, but then there are the Commissioners’ separate statements, the rules themselves, and a bunch of other stuff that brings the total count close to the 200-page level.
What with last minute Christmas shopping, decorating, baking, and other seasonally-appropriate festivities, we confess that reading the decision has not been a top priority. We do expect to delve into it promptly and will report on our findings, but in the meantime we’re providing the link (above) to the decision for those who want to check it out themselves.
If you’re worried about the immediate effects of the decision, you can breathe a little easy – none of the new rules will take effect until: (1) the Office of Management and Budget has had a chance to give them the once-over (as required by the Paperwork Reduction Act); (2) OMB has given them the thumbs up; (3) notice of the OMB’s approval has been published in the Federal Register; and (4) 60 days have gone by after that publication. In other words, you should be able to enjoy the year-end holidays.
And we here at CommLawBlog do wish all our readers the best of the holiday season.
FCC Adopts Net Neutrality Rules (Genachowski-style)
New rules, solidly endorsed only by the Chairman, seem to displease everybody else; Nagging problem of statutory authority (or lack thereof) persists
The FCC, nominally a five-member organization, proved to be more of a one-man band in the adoption of net neutrality rules. While the official record reflects a 3-2 vote in favor of the rules imposing “open Internet” limitson broadband Internet access service providers, closer inspection reveals that only one member actually favored the rules which have been adopted. The vote tally was: one in favor; two strongly opposed; and two unhappy-with-the-rules-but-willing- to-sort-of-go-along-with-Chairman-Genachowski.
And with that ringing endorsement, net neutrality has become the law of the land . . . at least for the time being.
The full text of the rules (along with the accompanying order explaining them) has not yet been released. (Check back here for more in-depth analysis once the actual rules and order are available for review.) But from the FCC’s public notice announcing its decision, and from the separate statements of the Commissioners, we can report that, as anticipated, the key provisions of the rules are:
STELA Update II: Effective Date, Comment Deadlines Set For Changes In Signal Prediction Methodology
As we reported the day before Thanksgiving, the Commission – acting at Congress’s direction – adopted a number of changes in its rules relating to satellite carriage of broadcast programming. Included among the FCC’s actions was a Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) in which the Commission addressed prediction of digital TV field strength levels at particular locations. (Such predictions are an important factor when it comes to carriage of “significantly viewed” stations by satellite carriers.) The Commission adopted a modified Longley-Rice model, but also (in the FNPRM portion of its order) solicited comments on some further changes suggested by an earlier commenter. Among other things, the Commission is curious about the commenter’s suggestions relative to [WARNING: Intense techno-speak dead ahead; deploy shields as needed]: “1) calculation of diffraction loss close to an obstacle or leading up to and following a pair of obstacles and 2) a factual or scientific basis for explaining the additional losses in the line of sight range above and beyond the free space loss and two-ray-loss.”
The R&O/FNPRM has now been published in the Federal Register (in separate chunks: the R&O may be found here, and the FNPRM may be found here). That in turn sets the effective date of the changes adopted in the R&O and the comment deadlines for the FNPRM. The effective date is January 21, 2011. Comments in response to the FNPRM are due by January 21, 2011, and reply comments by February 7, 2011.
Christmas Comes Early For LPFMs
In end-of-term flurry, Congress passes new version of Local Community Radio Act.
With the clock ticking down on this session, and with a newly-elected majority standing in the wings ready to take over come January, the lame duck Congress has managed to pass a new version of the “Local Community Radio Act”. Like its predecessors – H.R. 1147 and S.592 – the latest iteration (H.R. 6533) eliminates third-adjacent separation requirements between (1) low power FM stations and (2) full service FM stations, translators and boosters. Unlike its predecessors, both of which stalled out and sat around for months without final Congressional approval, H.R. 6533 sailed through both Houses in a mere two days: it was introduced on December 16 and finally approved on December 18. Now it’s on to the White House, where the presidential John Hancock is pretty much a given.
It’s not entirely clear what magic language managed to open the door to passage. For the most part, H.R. 6533 is identical to the earlier versions. But H.R. 6533 does include a new section which straddles the question of first- and second-adjacent separations, albeit somewhat awkwardly.
The bill first prohibits the FCC from reducing first- and second-adjacent separations. That’s the good news for full service licensees.
The Webcasters’ Next Five-Year Plan
Copyright Royalty Board announces webcast royalty rates for 2011-2015
Yo, all you non-interactive webcasters thinking about your budgeting for, say, the next five years: the Copyright Royalty Board (CRB) has announced the rates and terms that will apply to your operations for the period January 1, 2011-December 31, 2015. Check out the table below for details of the CRB’s “Initial Determination of Rates and Terms in the Matter of Digital Performance Rights in Sound Recordings and Ephemeral Recordings” (Webcasting III).
In getting this decision out as quickly as it did, the CRB has managed to do two things this time around that it failed to do in the ratemaking proceeding for 2006-2010. First, it managed to crank out a final result in a timely fashion. (By way of contrast, the deecision setting the rates for 2006-2010 (“Webcasting II”) wasn’t published in the Federal Register until May, 2007, at which point it had to be applied retroactively to the preceding 16 months or so.) And second, the CRB appears to have achieved relative consensus. (Again by way of contrast, Webcasting II resulted in both a two-year court challenge and an attempted legislative response).
As some psychologists tell us, even a worm can learn. And that adaptive phenomenon may be at work here as well. The CRB’s ability to achieve a quick and seemingly harmonious result almost certainly derives from its previous experience. Recall that the Copyright Act mandates that royalty rates for non-interactive webcasters be based on a “willing buyer/willing seller” standard, a standard that calls for rates that “most clearly represent the rates and terms that would have been negotiated in the marketplace”. The rate system adopted in Webcasting II was attacked as contrary to that statutory mandate. But eventually a series of webcaster settlement agreements were struck among various sectors of the webcasting industry (including both commercial and noncommercial broadcasters), so the heavy lifting was done: those agreements, negotiated by the private parties at arms’ length, provided a mutually agreeable resolution between willing buyers and willing sellers.
Repo Madness: Assorted 700 MHz Licenses To Go (Back) On Auction Block
Twelve 700 MHz licenses to be up for bids – again – come July, 2011 in Auction 92
The FCC has announced plans to auction a grab-bag of 700 MHz broadband licenses. The 16 licenses on the auction block include six in Puerto Rico, three in North Dakota, and three in the Carolinas, plus odds and ends in Texas, West Virginia and Virginia. If any of these licenses looks familiar to you, there’s a reason: all were previously up for grabs in Auction 73 almost three years ago, at which time they either went unsold or were defaulted on by winning bidders.
The proposed terms of the recently-announced auction (dubbed Auction 92) are unremarkable, except for one slightly unusual feature: the Commission is proposing to set the minimum opening bid for all channels based on Auction 73 numbers. That is, the minimum bid amount would be the greater of (1) the minimum opening bid amount for the same license in Auction 73 or (2) 10% of the highest bid amount received for the license in Auction 73. The hope is that, by upping the minimum opening bids somewhat, the Commission may be able to shorten the auction process, since it will presumably take fewer bidding rounds to get to the final auction prices.
With two exceptions, all of the licenses are for 12 MHz of spectrum for Cellular Market Areas (CMA’s) in the B Block. (The two exceptions: the Wheeling and Lubbock licenses are for 12 MHz in larger Economic Areas (EA’s) in the A Block.) Comments on the proposed auction procedures are due no later than January 12, 2011; reply comments may be filed by January 27. The auction is scheduled to begin on July 19, 2011.
SHHHH – It’s The Law!
CALM Act signed by President
It’s official! President Obama signed the CALM Act on December 15, so it’s now the Law of the Land. Fans of the new law wishing to show their appreciation are encouraged to applaud quietly, with any cheers kept to “indoor voice” levels. Opponents can grimace all they want – just keep the noise down, please.
For those of you who have been walking around with cotton stuffed in your ears (to avoid loud commercials on TV) and who may, as a result, have missed out on the background of the CALM Act, you can check out our posts on the matter here. But don’t be throwing all that cotton away just yet. While the Act has now made it through the peristalsis that is the legislative process, that means only that Congress and the White House have dumped the hot potato of loud commercials onto the FCC’s lap. It’s now up to the FCC to change its rules to incorporate the remedy prescribed by the Act, and then it will be up to video providers to bring themselves into compliance. The Act gives the FCC a year to get its part of the job done, and it gives video providers a year to get their own act together once the new rules are in place. Check back here for updates.
