CommLawBlog

Cable Programming Exclusivity Ban Survives Appeal . . . But For How Long?

Harry Cole — Sun, 14 Mar 2010 13:52:43 -0500

Split D.C. Circuit panel sidesteps First Amendment argument, upholds FCC prohibition . . . THIS time

The U.S. Court of Appeals for the D.C. Circuit has affirmed the 2007 extension of the Commission’s prohibition against exclusivity arrangements between cable operators and cable-affiliated programming networks. But the likelihood of that prohibition staying on the shelves beyond its current sell-by date (i.e., 2012) is dubious.

For more than 15 years the FCC has prohibited exclusive contracts between cable operators and cable-affiliated programming networks. The prohibition was triggered by the Cable Act of 1992, which reflected Congressional concern about cable’s monopolistic position in the realm of multichannel video programming distributors (MVPDs). But Congress was not inclined to let the FCC engrave the prohibition in stone. Au contraire, Congress included a sunset provision essentially causing the ban to go away automatically in 10 years unless the FCC made an affirmative finding that the prohibition continued to be necessary to protect competition and diversity. In 2002 the Commission made such a finding, leaving the prohibition on the books for another five years. And in 2007, when that extension ran out, the Commission renewed it for another five years.

That’s when Cablevision and Comcast, two of the biggest MVPDs, asked the Circuit to review the ban. In their view, the increasingly competitive MVPD market – now populated by such nouveaux arrivés as satellite TV providers DirecTV and Dish, not to mention telephone companies using their networks to deliver more than phone service – undercut the concerns that gave rise to the ban back in the days of the first President Bush.

By a 2-1 decision, the Circuit panel upheld the FCC. But in so doing, it gave the cable petitioners reason to believe that the prohibition won’t be around a whole lot longer.

The majority opinion, written by Judge David Sentelle (with Judge Thomas Griffith joining him), relied on a standard statutory analysis of the FCC’s decision, an approach in which the Court accords a boatload of deference to the agency. As usually happens when the Court takes that deferential tack, the FCC got the benefit of the doubt: the majority held that the Commission was not unreasonable in its conclusion that the prohibition is still justified, even though a different panel of the Court had held, in an unrelated case decided last August, that “[c]able operators [ . . . ] no longer have the bottleneck power over programming that concerned the Congress in 1992.” (We blogged about that case, which involves the FCC’s ownership caps, here.)

But the victory may not comfort the Commission (or others supporting the prohibition) much. The majority wrapped up its opinion by observing that “[w]e expect that if the [MVPD] market continues to evolve at such a rapid pace, the Commission will soon be able to conclude that the exclusivity prohibition is no longer necessary to preserve and protect competition and diversity in the distribution of video programming.” In other words, while the Court was willing to give the FCC a pass this time around, the Commission shouldn’t necessarily count on similar treatment the next time around.

An interesting aspect of the majority opinion is that it rejected the cable petitioners’ claims that, rather than the lenient, deferential statutory standard of review invoked by the majority, a more rigorous, less-agency-friendly First Amendment standard should apply because the cable operators’ First Amendment rights were (according to the petitioners, at least) at stake. The majority declined to consider any First Amendment arguments because, according to Sentelle, the cable guys didn’t raise them.

That was news to Judge Brett Kavanaugh, whose 29-page dissent – not quite twice as long as the majority opinion – relied heavily on First Amendment analysis to reach the conclusion that the FCC’s prohibition is unconstitutional. In the majority’s view, the cable petitioners never squarely argued that theirs was a First Amendment attack, and (according to the majority) the Court should not be in the business of deciding issues of constitutionality which the petitioner did not “set forth as an issue in the case and to which it refers only obliquely.” [Important practice tip: If you plan to argue a constitutional issue, be sure to refer to the Constitution in your Statement of Issues.] In fairness, while Kavanaugh makes a big effort to “tease out” (in Sentelle’s words) enough constitutional references in the petitioner’s briefs to cobble together an argument, it does appear that the cable guys declined to present the constitutional issue as such.

For their part, while the cable petitioners may take considerable comfort from Judge Kavanaugh’s constitutional analysis, even he had to acknowledge that “the First Amendment rights of a Cablevision or ESPN do not tug at the free speech heartstrings in the same way as the iconic political protester who lies at the core of the First Amendment.” Ouch.

Next stop? The ball is in Cablevision/Comcast’s court. They could sit back and wait for the current extension to expire (in 2012) and see what the FCC does. Or they could continue their litigation by seeking either: (a) reconsideration by the Sentelle/Griffith/Kavanaugh panel; or (b) rehearing en banc by the full D.C. Circuit; or (c) review by the Supreme Court.

The odds of success in pursuing any of those options tend to be long against the guy seeking review. However, consider these facts. First, the cable petitioners have the advantage of a very thoughtful dissent on their side, reflecting at least one judge’s approval of their First Amendment arguments. That might be helpful in persuading Kavanuagh’s colleagues that those arguments have merit. Second, another panel of the Circuit did issue that decision on the cable ownership caps just last August, containing language that could easily be viewed as inconsistent with (or at least in strong tension with) the more recent ruling. The full Circuit might be inclined to look at that aspect to confirm that the Court’s rulings are not heading in opposite directions. And if cable’s goal is really to get the Supreme Court to revisit the issue of cable’s First Amendment rights – an issue last decided there more than a decade ago, by a slim 5-4 vote – Cablevision and/or Comcast may figure that the Supremes might want to take a look (particularly in view of Judge Kavanaugh’s dissent).

Even if the cable petitioners pursue their litigation successfully, though, it’s possible that that litigation won’t be resolved until 2011 or even 2012. And at that point, the prohibition against exclusivity will be expiring anyway . . . unless the Commission decides otherwise.

[Department of Credit-where-credit-is-due: FHH’s own Paul Feldman represented the Broadband Service Providers Association as an amicus on the FCC’s side before the Circuit in this case.]

FCC Fine-Tunes 2-Way Radio Rules

Christine E. Goepp — Fri, 12 Mar 2010 17:09:30 -0500

Changes to technical rules affect licensing, frequency coordination

Those interested in the finer points of Private Land Mobile Radio (PLMR) and Wireless Medical Telemetry Service (WMTS) – you know who you are – should check out a recent FCC order addressing a grab-bag of Part 90 and Part 95 issues. [WARNING: Don’t try reading the order if you’re driving, operating heavy equipment, or performing any task requiring alertness.] Following up on a three-year-old proposal, the FCC has now:

exempted from required frequency coordination certain categories of Part 90 applications that do not threaten new interference, such those requesting CMRS-to-PLMR conversion, bandwidth reduction, lowered antenna height, or decreased power (Section 90.175);
removed channel restrictions and power limits for mobile repeaters below 450 MHz and power limits for handheld transmitters (Section 90.247);
clarified that state and local governments (as well as businesses) are eligible to use Industrial/Business Pool licenses for commercial activities and surveying (Section 90.35);
because the FCC no longer issues authorizations for systems with a station class of FB8T (temporary centralized trunked relay), clarified that stations currently classed as FB8T will be renewed as either FB2T (for private, internal systems) or FB6T (for for-profit private carriers) stations; and
prohibited registration of WMTS devices on portions of the 1427-1432 MHz band where they do not hold primary status, in order to protect WMTS devices from harmful interference not anticipated by healthcare facility personnel (Section 95.1111).

[OK, rinse down a couple of NoDoz with that Red Bull-laced triple shot espresso, splash some cold water on your face, take a deep breath, open a couple of windows, and read on.]

Additionally, the Commission is now seeking comment on these matters:

whether secondary WMTS operations should be permitted, and under what circumstances;
whether power limits for end-of-train (EOT) radios should be increased to allow better communication from the end of a train to the front;
whether distance analysis should be dropped as a method by which trunked system applicants can identify incumbent “affected licensees”, given that most applications for new centralized trunked systems now rely on a contour analysis;
whether certain trunked system applicants should have to show that their service contour will not be overlapped by an affected licensee’s interference contour;
whether to expand the definition of “affected licensee” based on spectral separation for certain trunked system applications;
how best to determine a mobile-only trunked system’s contours;
whether to continue to prohibit frequency coordinators from accepting a conflicting trunked system application for 60 days after notice of an application, given the prohibition on “greenmail” applications;
whether to codify in its rules the “TSB-88” interference criteria (published by the Telecommunications Industry Association and the Electronics Industry Association) for evaluating adjacent channel interference for the 12.5 kHz offset channels in the 470-512 MHz band; and
whether to allow digital signals for the transmission of station identification information for VHF and UFH PLMR licensees.

Yawn-inducing stuff to many, perhaps, but vital to those whose job it is to provide American businesses with reliable radio communications. We will let you know the comment due dates when they become available.

Retransmission In Transition?

FHH Law — Fri, 12 Mar 2010 11:13:21 -0500

Consumer-friendly (?) Big Cable seeks Big Cable-friendly overhaul of retransmission consent process

A group consisting of some of the major multichannel video program distributors (MVPDs) has run to the Commission asking for changes in the retransmission consent rules. The group – for convenience, let’s refer to them collectively as “Big Cable”, although they include (in addition to major cable operators) non-cablers DirecTV, Dish, a couple of phone companies, and even some supposedly independent advocacy/think tank groups – is concerned that Big Cable’s ability to call the shots when it comes to carriage of broadcast signals has gone away, and Big Cable understandably wants it back. Who wouldn’t?

In a Petition for Rulemaking, Big Cable declares that the retransmission consent system is “broken”. Not surprisingly, Big Cable had this particular epiphany immediately after several very public sets of carriage negotiations in which, e.g., Fox and ABC demonstrated their negotiating acumen, and clout, in facing down some very major cable operators. Who “won” or who “lost” those negotiations is, of course, a matter of opinion and spin. But Big Cable is now urging the FCC to impose a mandatory arbitration process and to require that MVPDs continue to carry stations when parties can’t reach a deal.

Sure sounds like Big Cable may be thinking that, nowadays at least, the broadcaster-MVPD negotiation process isn’t exactly what it was cracked up to be . . . at least for Big Cable.

Way back when, in the misty eons of time prior to the Cable Act of 1992, broadcast stations got carried on cable systems pursuant to the “must-carry” rules. In rough terms, the cable systems had to carry local stations, and broadcasters had to allow such carriage. But with the 1992 Act, Congress started to coax the players into a more market-oriented arrangement. In addition to must-carry (which remained in place as an alternative), broadcast carriage could be agreed-to through “retransmission consent” arrangements privately negotiated between TV station and cable operator. The broadcaster had to elect which approach it would take in advance of the relevant three-year term. Those electing retransmission consent (or “retrans”, to the cognoscenti) were then left to cut whatever deal they could.

The advantage to the broadcaster was that, if it could negotiate a favorable deal under retrans, it could get compensation for carriage that, under must-carry, it was giving up for free. The downside, of course, was that a broadcaster electing retrans and then unable to tie down a deal risked losing out on any carriage during the three-year term. Bummer. (All parties to retrans negotiations were, and still are, required to deal in good faith. While accusing the other side of acting in bad faith is a standard ploy, to date such claims have not moved the Commission to interject itself into retrans dealings. Basically, it’s beyond difficult to establish that the other guy is negotiating in bad faith – and in its petition Big Cable pretty much concedes as much.)

In the early rounds, the cable companies held most, if not all, of the cards. Since they were all monopolies in their respective areas, they could avail themselves – usually successfully – of the tried-and-true negotiation position of “my way or the highway”. Broadcasters electing retrans usually ended up getting access to one or more additional cable channels and maybe some advertising avails and the like –whatever scraps the cable company chose to leave on the table – but no cash payments for their programming.

Then a funny thing happened over the course of the last 18 years or so. Competition crept into the MVPD industry, through satellite services (i.e., DirecTV and Dish) and telephone company offerings like FIOS. And while 200+ channels of non-broadcast programming may sound tempting, the viewing public still demonstrated an abiding affection for local TV stations. This happy confluence of trends was good news for broadcasters. Not so much for Big Cable.

Fast forward to New Year’s Eve, 2009, when a negotiating impasse between Fox and Time-Warner (one of the Big Cable team) splashed across the headlines and threatened to deprive millions of viewers of Fox’s New Years Day programming (can you spell “BCS”?). A couple of months later, ABC went mano-a-mano with Cablevision in the NYC market, cutting off carriage of the Oscars® for the first 13 minutes of the show before a deal was struck and the show went on.

And two days after the Oscars® face-off, who shows up at the FCC but Big Cable, petition for rulemaking in hand.

According to Big Cable, the retrans system has unduly favored broadcasters from Day One. The only reason Congress adopted the retransmission consent/must carry regime, so their story goes, was to prevent then-dominant cable systems from undermining free over-the-air broadcasting by exercising the market power that their monopoly positions afforded cable operators. They seem to think that, because broadcasters have gradually attained a more robust bargaining position, it’s time to have the guv’mint control the parties’ relationships.

In its Petition Big Cable acknowledges that in the early days of retransmission consent, cable systems were able to deflect paying cash compensation by agreeing to provide “in-kind” compensation – e.g.,agreeing to carry other non-broadcast programming channels in return for the right to carry the primary broadcast signal. Now that broadcasters are negotiating for cash compensation, however, Big Cable says that they and their MVPD confrères are (horror of horrors!) being forced to either (a) pay the broadcasters and pass those costs along to consumers, or (b) run the risk of having to remove the broadcasters’ programming from their systems. And, according to Big Cable, broadcasters have taken to making unreasonable demands on cable and satellite operators. (Here, Big Cable bemoans the fact that the “good faith” negotiation requirement is so vague that MVPDs have not been able to show that broadcasters’ demands have ever constituted “bad faith” negotiating tactics. Go figure.)

To “reform” the system, Big Cable advances a number of proposals that would shift the balance of power back more in Big Cable’s direction. Here are the main ones:

First, the Commission should establish a mandatory dispute resolution system for retransmission consent negotiations, to bail out MVPD operators who find themselves unable to persuade the broadcaster that the offer on the table really should be acceptable to the broadcaster. This system would come into play not just on a showing of broadcaster bad faith (remember, that’s too difficult to prove), but any time a cable or satellite operator claims that the parties cannot reach an agreement. Once the dispute resolution process was invoked, the appropriate compensation level would be established by arbitrators or some type of expert panel – not through direct negotiation between the parties.

Second, the new regime would effectively prohibit a broadcaster from demanding carriage of other programming services in return for the right to carry a broadcast signal by making such a demand a per se violation of the “good faith” negotiation requirement. Of course, Big Cable magnanimously suggests that the FCC should allow such arrangements, but only if the MVPD consents to them. That is, such an arrangement would be per se “bad faith” only if the MVPD didn’t like it.

Third, the Commission should impose an “interim” and continuing grant of retransmission consent for as long as (a) the MVPD continues to negotiate in good faith and/or (b) any dispute resolution process is ongoing. Adding that condition of “good faith” negotiation is interesting in view of Big Cable’s acknowledgement that it’s virtually impossible to establish that a party is negotiating in bad faith. So let’s get this straight. If the MVPD and broadcaster are negotiating, the MVPD gets to carry the broadcaster’s programming unless the MVPD is negotiating in bad faith, which is a showing everybody agrees can’t be made – so the MVPD gets to carry the programming. And if the negotiations reach an impasse (according to the MVPD), the only alternative is the mandatory and binding arbitration process – during which, again, the MVPD gets to keep carrying the programming. It would only be after the failure of both private negotiations and mandatory arbitration that a broadcaster could ever exercise its rights to prevent retransmission of its signals. It is unclear, however, how an arbitration process that is both mandatory and binding could ever fail.

The Big Cable proposals are stunning in their one-sidedness. The broadcasters and MVPDs will negotiate – until the MVPDs decide the negotiations are at an impasse and demands arbitration. A broadcaster seeking carriage of additional non-broadcast programming is automatically acting in bad faith – unless the MVPD agrees to it. A broadcaster must extend its retrans consent until a deal is reached – and reaching a deal is mandatory.

And while Big Cable tries to depict itself as really just looking out for the consumer, it’s not at all clear that that self-serving claim withstands scrutiny. Big Cable’s claim is that, if MVPDs are forced (through the retrans negotiation process) to pay broadcasters for carriage, then those additional costs will be heaped on the broken and bleeding backs of the consumers, who will have to pay more to the MVPDs in order to watch broadcast fare. But who said that the cost of carriage has to be passed through to the consumer? Are MVPD profit margins so low that Big Cable can’t absorb those additional costs and still make a tidy profit? Serious attention should be paid to such questions before anybody swallows the “poor little consumer” claims of Big Cable.

More fundamentally, the Big Cable proposal would transform the retrans consent bargaining process from a free market negotiation to a mandatory and binding arbitration, making it effectively impossible for a broadcaster ever to prevent a cable operator from retransmitting its signals.

It’s as if, back in 1992, Big Cable had agreed to play an ostensibly fair game of coin toss with broadcasters – but, because of cable’s then monopoly-based dominance, it was akin to playing with a two-headed coin, making it easy for Big Cable to win the toss each time. And now, 20 years or so into the game, with the two-headed coin removed and a more competitive normal coin put into play, Big Cable is saying that it’s happy to keep playing as long as the rules are tweaked ever so slightly to provide them with a “heads I win, tails you lose” option.

Big Cable has not limited its push to the Commission. Cable and satellite operators have also gone to Congress, sending a letter raising many of the same points to the House and Senate Commerce Committees. In response, the NAB has fired back with its own letter to those committees.

This is a fist fight that would ordinarily last some time, particularly because the Commission can be expected to be distracted from mundane mass media matters by its current preoccupation – nay, all-consuming obsession – for broadband issues uber alles. But in Congressional testimony on March 11, Chairman Genachowski said that the issue of the retrans consent process “is a subject that should be looked at seriously . . . for a framework that works for consumers.” Uh-oh. Cable’s play of the consumer card, heavy-handed and disingenuous though it may seem to many, may be the equivalent of Tinker Bell’s fairy dust which, when liberally sprinkled here and there, can cause otherwise flightless things to take wing. We shall see.

[Blogmeister’s Credit Report: This post is the cooperative effort of Dan Kirkpatrick, Jeff Gee and Harry Cole.]

Some, But Not All, BIP/BTOP Deadlines Extended

FHH Law — Mon, 08 Mar 2010 10:58:20 -0500

New BIP deadline: March 29; New BTOP deadline for CCI projects: March 26

NTIA and RUS have announced extensions of the deadlines for some, but not all, submissions in response to the Second Notice of Funds Availability (NOFA) issued as part of the Big Money Hand-out made possible by the American Recovery and Reinvestment Act of 2009. Applications for Broadband Initiatives Program (BIP) funding will now be due at RUS by 5:00 p.m. (ET) on March 29, 2010. Applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP) will now be due at NTIA by 5:00 p.m. (EDT) on March 26, 2010.

It’s not clear why one agency opted for March 26 while the other opted for March 29, but would-be applicants should be sure to note that the deadlines for NTIA and RUS applications responsive to the Second NOFA are no longer identical.

Also, the extensions do NOT apply to requests for NTIA/BTOP funds for Public Computer Center projects or Sustainable Broadband Adoption projects. The deadline for applications for such projects remains 5:00 p.m. (EDT) on March 15. Check out our blog post about the Second NOFA for further details about the different types of projects.

Department of the Inferiors? Copyright Royalty Board Judges Are OK With That.

Kevin Goldberg — Sat, 06 Mar 2010 16:35:47 -0500

Judge denies Live365 preliminary injunction request based on constitutional challenge to CRB

Inferiority never felt so superior. By successfully painting themselves as “Inferior Officers”, the judges of the Copyright Royalty Board (CRB) have dodged a preliminary bullet. And while the odds seem pretty good that they’ll make it through to the end of this particular round, there’s plenty of reason to believe that the fight won’t be over for some time to come.

The main issue: is the CRB unconstitutional? As we reported last summer, in a CRB-related appeal decided by the U.S. Court of Appeals for the D.C. Circuit, Judge Brett Kavanaugh issued a concurring opinion in which he questioned the CRB’s constitutionality. When a U.S. appeals judge goes out of his way to opine that an agency may be unconstitutional, people take notice.

Live365 did just that. Live365 is an aggregator of digital radio stations which is subject to the compulsory copyright license scheme overseen by the CRB. In particular, Live 365 must suffer through the prolonged trial-type rate-setting proceedings CRB uses to set rates and establish terms, and Live365 must live with the (expensive) results of those proceedings.

Sensing an opportunity, Live365 took the initiative to file a complaint in the U.S. District Court for the District of Columbia (not coincidentally, the court whose rulings are reviewed by Judge Kavanaugh and his D.C. Circuit colleagues) seeking a determination that the CRB is unconstitutional. Needless to say, if Live365’s suit were successful, it would throw the entire rate-making process into massive disarray, possibly scuttling for an extended period the collection and distribution of copyright royalties for webcasting.

We outlined Live365’s September, 2009 presentation, deeming it “a very good initial argument”, but cautioning that you really can’t put too much stock on a complaint without first checking out what the other side has to say.

Truer word was never spoken.

Judge Reggie Walton has recently denied Live365’s request for a preliminary injunction. But Judge Walton also rejected motions to dismiss Live365’s case, so it lives on as Live365 presses for a permanent injunction and a final declaration that the CRB is unconstitutional. And while Judge Walton’s denial of the preliminary injunction must be disappointing to Live365, the Judge acknowledged that the law in this area is not at all clear. What is clear is that we probably haven’t heard the last of this matter.

As a threshold matter, Judge Walton rejected efforts to have the complaint tossed on jurisdictional grounds. No problem there, said the Judge, the District Court does indeed have jurisdiction – that is, the necessary authority – to hear such constitutional challenges.

Having brushed that question to the side, the Judge charged on to the merits.

As we reported last September, Live365’s argument consisted of a two-prong attack based on Article II of the Constitution. That section refers to two separate types of “officers” of the U.S.: “principal” officers and “inferior” officers. Under the Constitution, “principal” officers must be appointed by the President and confirmed by the Senate; “inferior” officers, on the other hand, are not subject to the President/Senate limitation, but they may be appointed only by either the President, the courts, or “heads of departments”. Live365 (and Judge Kavanaugh before it) doubted that CRB judges satisfied either set of criteria.

Live365 first argued that CRB judges are “principal” officers because:

they function without any real supervision from the Librarian of Congress;
they’re not subject to limitations to which “inferior” officers are (such as limited duties, limited jurisdiction, temporary tenure, ability to be removed from office);
they’re not subject to performance appraisals from their superiors;
they have the same powers and responsibilities as their predecessor body, the Copyright Royalty Tribunal, whose members were directly appointed by the President as “principal” officers.

The trouble is that, while all those factors might indeed support Live365’s wished-for conclusion, the Supreme Court has not yet adopted any “bright line” test in this area. Rather, the Supreme Court has thus far chosen a case-by-case approach, looking at the peculiar matrix of factors presented in each individual case. Taking his cue from the Supremes, Judge Walton did the same here.

And to Live365’s disappointment, he decided that the defendants had the better argument. In his view, CRB judges should be deemed “inferior” (but only in the best sense, of course), largely because:

CRB judges receive direction and supervision from the Librarian of Congress and the Register of Copyrights, who can promulgate and enforce binding ethical rules;
the Librarian of Congress and Register of Copyrights provide all the judges’ administrative resources and assign other duties.
the Register of Copyrights can review the CRB judges' decisions for “legal error”.

But even Judge Walton acknowledged that there is room for disagreement here. Noting Judge Kavanaugh’s “understandable” observations, Walton conceded that “[t]he current state of the law has essentially created a gray area”, thanks to “the limited guidance the Framers of the Constitution provide as to where ‘[t]he line between ‘inferior’ and ‘principal’ officers . . . should be drawn,’ and the Supreme Court’s refusal to ‘decide exactly where the line falls between the two types of officers.’”

Having satisfied himself that the CRB judges are “inferior officers”, the Judge next analyzed Live365’s claim that, as such, they miss the Constitutional boat because they aren’t appointed by either the President, a “Head of Department”, or a court, like the Constitution requires.

CRB judges are appointed by the Librarian of Congress. In Live 365’s view, the Librarian of Congress isn’t a “Head of Department" because he’s really part of the Legislative, not Executive, Branch. Not a crazy argument, since the Librarian reports to Congress, portrays itself as part of Congress, and has, in other contexts, been deemed by the D.C. Circuit to be part of the Legislative Branch. Hey, he’s the Librarian of Congress, for crying out loud.

Judge Walton was not persuaded. Sure, the Library of Congress is treated as a component of the Legislative Branch in the U.S. Code, but the Librarian (according to Walton) functions as an Executive Branch head: the Librarian is appointed (and can be removed) by the President and is in no way limited by Congress or Members of Congress. Moreover, the Copyright Act, in creating the Librarian of Congress, vests the Librarian with the power to appoint several employees in the manner afforded to other Executive Branch heads.

In light of those factors, Judge Walton concluded that Live365 had “not met its burden of showing that there is a substantial likelihood that it will succeed on the merits of its alternative Appointments Clause challenge”. The emphasis on “substantial” was the Judge’s, not ours – from which a reader could reasonably conclude that the Judge might think that there was at least some possibility (although obviously not a “substantial likelihood”) that Live365’s argument might prevail. So perhaps hope should spring eternal. After all, the Judge was merely ruling on the “preliminary injunction” aspect of Live365’s request, i.e., the part in which Live365 asked the Judge to order the CRB to stop its proceedings pending resolution of Live365’s request for a permanent injunction.

In seeking a preliminary injunction, a party is expected to demonstrate not only that it is likely to succeed on the merits of its ultimate claim, but also that it will sustain “irreparable harm” if a preliminary injunction is not granted. On this point, Live365 argued that, if it were forced to participate in a CRB rate-making proceeding while Judge Walton pondered Live365’s request for a permanent injunction, Live365 would incur more than $1 million in costs. Unfortunately for Live365, mere monetary harm generally doesn’t rise to the level of “irreparable” in the world of preliminary injunctions. And what’s worse, Judge Walton found that the other side would be harmed if the preliminary injunction were to be granted. The “already-tight schedule” of the CRB proceeding would have to be further “compressed”, and recording artists would not get paid during this period, which could adversely (and possibly profoundly) affect their finances. The Judge also decided that the public interest would not be harmed if the webcasting case goes forward. Bottom line: request for preliminary injunction denied.

So the CRB lives on to set rates, at least for the time being. Live365 may continue to press for a permanent injunction, although the short-term outlook there isn’t great in view of Judge Walton’s detailed, and unfavorable, analysis of Live365’s constitutional arguments. Still, that analysis did include the acknowledgement that the question is far from settled, and Live365 has the added comfort of knowing that, once it moves past Judge Walton, it will find itself in the D.C. Circuit, i.e., Judge Kavanaugh’s house. Since Live365 has a pretty good idea that that judge, at least, is likely to be sympathetic to its arguments, don’t be surprised if Live365 picks itself up off the canvas and keeps slugging to get to the next round.

FCC Rejects Same Application Ten Times - So Far

Mitchell Lazarus — Fri, 05 Mar 2010 15:48:05 -0500

Persistent applicant seeks successive reconsiderations; Quoth the FCC, “Nevermore!”

This is another in our continuing series on people who just don’t give up.

Back in 2000, an individual with interests in several wireless companies filed applications to provide maritime radio service along various U.S. waterways. The FCC dismissed the applications because they did not meet the coverage requirements then in effect. Unhappy with the outcome, the applicant filed petitions for reconsideration (denied in 2001), a petition for further reconsideration (denied in 2001), applications for review (denied in 2002), and then appeals to the U.S. Court of Appeals (terminated by the court in 2007).

In 2002, the FCC changed the coverage requirements. The same applicant filed a request to have his applications reinstated (denied in 2004), a petition for reconsideration (dismissed in 2005 as untimely), a petition for reconsideration (denied in 2006), an application for review (denied in 2008), and a petition for reconsideration (dismissed in January, 2010). The FCC tossed this last one as repetitious because, in the Commission’s view, it offered no new relevant information. In an unusual move, the FCC added: “We plan to give no further consideration to this matter, and the staff is hereby directed to dismiss summarily any subsequent pleadings filed by [this applicant] or related parties with respect to these applications . . . .”

That makes nine separate times the FCC rejected the same applications. Most people, by then, would have concluded that “No!” means no. That last dismissal for repetitiousness would deter even the most determined applicant. Even fewer of those would have the nerve to try again, after the FCC ordered its staff not to consider further requests.

But this gentleman is apparently cut from different cloth. Undaunted, he filed a petition seeking reconsideration of the dismissal for repetitiousness of his last reconsideration request.

That one did not even make it to the full Commission. In two brief paragraphs, with a terse citation to the “no further consideration” order, a Deputy Bureau Chief dismissed the arguments yet again.

This is an exciting time for those with an interest in someone so indomitable of spirit. They will eagerly scan the FCC daily releases over the weeks to come. Will he try to extend his streak at the FCC? Or challenge the most recent dismissal in court? Watch this space for updates.

Calendar Updates

FHH Law — Fri, 05 Mar 2010 08:46:46 -0500

Not as momentous as the Julian-Gregorian shift, but changes you might want to note nonetheless

Back in January we reported on a proposal to allow unlicensed operation in the 77-81 GHz band for “tank radar” use. The Commission’s Notice of Proposed Rule Making has now been published in the Federal Register, which in turn has established the deadlines for comments and reply comments. Comments are due by June 2, 2010 reply comments by July 2, 2010.

And in February, we called readers’ attention to the First Report and Order and Notice of Proposed Rule Making (FRO/NPRM) in the rural radio proceeding. There the Commission adopted a Section 307(b)-based “tribal priority” for new AM and FM allotments, and separately invited comments on possible further tweaks to that priority (e.g., whether and how to apply that priority to Native American Tribes who do not possess tribal lands). The FRO/NPRM has also been published in the Federal Register. That publication sets the comment deadlines for the NPRM section of item (comments are due by May 3, 2010, reply comments by June 2, 2010). Additionally, the publication makes the “tribal priority” and other changes adopted in the R&O portion effective as of April 5, 2010. (Check out our earlier post on this for a summary of the various changes.)

While the “tribal priority” is not likely to affect the lay of the AM and noncommercial FM land for the time being – since new allotment proposals there require the opening of a “filing window” by the Commission, and no such windows are currently on the horizon, as far as we can see – it could affect commercial FM drop-in proposals early on. However, in view of the lag time between (a) the inclusion of new commercial channels in the Table of Allotments and (b) the opening of a window opportunity to file for those channels, increased service to Native American tribal lands as a result of the “tribal priority” is still probably a ways away.

Image-Rights Litigation: Former College Athletes Stay On Offensive

Kevin Goldberg — Tue, 02 Mar 2010 17:42:11 -0500

Federal judge rejects motions to dismiss, allows videogame suits against NCAA, Electronic Arts to proceed

Update Time! For those of you wondering what ever happened with the efforts of Ed O’Bannon, Sam Keller and Craig Newsome – former college athletic stars all (but you probably knew that already, didn’t you?) – to protect their right to control the use of their images, the answer is: Lots. While none has yet emerged victorious over the NCAA, Electronic Arts (EA) and other various foes, progress has been made recently.

As loyal readers of this blog know, the field of “image rights” has been the subject of extensive litigation over the last couple of years. Former professional athletes (including no less a luminary than Jim Brown) and their college counterparts have sued a range of defendants in an effort to protect their ability to control, and profit from, the use of their images. And while Jim Brown’s attempt was stopped at the line of scrimmage, recent rulings in the cases of O’Bannon, Keller and Newsome may provide a path to victory for them (and other similarly situated celebs).

Keller and Newsome were big-time college football players, while O’Bannon played hoops. Since I happen to be partial to b-ball – as opposed to football (in large measure because of my distaste for the whole BCS ridiculousness) – here’s some background on O’Bannon. Originally recruited to play basketball at UNLV, he ends up at UCLA when UNLV’s program is put on probation. He gets injured bad (ACL) as a frosh, but fights back and, as a senior in 1995, is named college player of the year, stars when the Bruins win it all at the NCAA’s Big Dance, gets his UCLA number retired, the works. As college careers go, it doesn’t get more Story Book. Pro-wise, not so much: he went high (9th) in the NBA draft, but lasted only two seasons, followed by some play in the foreign leagues, and then retirement to a new career as a pretty successful car salesman.

Fast forward a decade or so. As the story goes, O’Bannon notices a friend’s son playing a video game featuring the 1995 UCLA Bruins. The video team includes an unnamed player startlingly similar – actually pretty much identical – to O’Bannon: same position, same number, same stats, same shooting hand, etc. His friend remarks, “You know what’s sad about this whole thing? You’re not getting paid for it.” O’Bannon thinks, “Wow, you’re right.” He lawyers up and sues.

O’Bannon and Newsome went after the NCAA. Keller, in a separate suit which was ultimately joined with the O’Bannon/Newsome action, named the NCAA and EA as defendants. The gist of the suits is that somebody – maybe the NCAA, maybe EA, maybe others – is making a boatload of cash from video games which depict (without specifically identifying) real people who are readily identifiable through various aspects – stats, player numbers, years, etc. Why should those real people not be entitled to share in the profits since their images are central to enterprise?

The two cases – O’Bannon/Newsome on the one hand, Keller on the other – adopted different legal strategies. Keller claimed that the NCAA and EA violated his “right of publicity”, i.e., the right to profit from the use of his name and/or likeness. O’Bannon/Newsome, on the other hand, claimed that the NCAA is engaging in “anti-competitive” practices by unduly restricting the rights of college athletes. From the court’s initial rulings – the Keller decision is here, the O’Bannon/Newsome decision here – both arguments appear to have gotten traction.

While Keller’s claims were dismissed with respect to the NCAA, they stuck with respect to EA. Because of the particular statutory language of the “right of publicity” laws in Indiana (one of the two jurisdictions at issue in Keller’s suit, mainly because the NCAA happens to be headquartered in Indiana), the court held that the NCAA itself did not “use” Keller’s name/likeness in a way which would make the NCAA directly liable under those laws. But as to EA, well, that’s another story entirely.

Conceding, at least for the sake of its motion to dismiss, that Keller could establish all he needed to in order to establish that EA had violated his right of publicity, EA argued that it had engaged merely in “transformative fair use”. In other words, the image of the football player that was included in EA’s video game was really EA’s own expression, and not Keller’s true likeness.

To be successful, the transformative fair use defense requires a demonstration that the defendant has contributed “significantly distinctive and expressive content” which might be protected by the First Amendment. Cases where the defense is successful often involve taking an individual’s recognizable likeness and adding to it distinct new elements, or placing it in a completely novel setting. For instance, albino rocker brothers Johnny and Edgar Winter were portrayed in comic book form as brothers Johnny and Edgar Autumn, with pale faces and long white hair reminiscent of albinism. Transformative? If the changes had been limited to the name change alone, probably not. But in that case the Autumn brothers were also depicted as half-human, half-worm characters with green tentacles sprouting from their chests. Now that’s transformative. In another case, a musician and dancer known for uttering the phrase “ooh-la-la” was depicted with similar physical features and named “ulala” – but, instead of singing and dancing, she was shown as a “news reporter in the 25th century, ‘dispatched to investigate an invasion of earth by dance-loving aliens’.” That, too, is what they’re talking about what they talk about “transformative fair use”.

In Keller’s case, the court concluded that EA’s depiction of Keller contained no such “distinctive content”. Rather, EA simply presented Sam Keller as the college football quarterback for Arizona State.

Result: EA’s motion to dismiss Keller’s suit was denied, and the case proceeds to trial. Along the way, the judge also agreed that Keller’s additional claim – that EA conspired with the NCAA to violate his image rights – could also proceed to trial. So while the NCAA dodged one bullet (i.e., the claim that it had directly violated the right to publicity), it will still remain under the gun because of its involvement with EA in the development of EA’s videogames.

As to O’Bannon/Newsome, the same judge gave a similar thumbs up to the “anti-competition” theory. O’Bannon/Newsome’s claim was based primarily on a provision that the NCAA apparently requires all of its student-athletes to sign:

You authorize the NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs

The plaintiffs claimed that this provision allows the NCAA to enter into licensing agreements which financially benefit the NCAA without conveying a benefit to the athletes.

To prevail in an anti-competition claim along these lines, O’Bannon/Newsome had to establish (a) the existence of a contract, combination or conspiracy that (b) unreasonably restrains trade in a way which (c) affects interstate commerce. The judge concluded that O’Bannon’s claim was sufficient to go to trial. After all, the NCAA’s own constitution which requires member schools to agree to abide by the organization's constitution, bylaws and rules (Factor (a)); the NCAA and its affiliates control the collegiate licensing market to such an extent that the average individual athlete is precluded from having any chance to enter the market for himself (Factor (b)); and the NCAA and its affiliates control the collegiate licensing market to such an extent that the average individual athlete is precluded from having any chance to enter the market for himself (Factor (c)).

(Interestingly, Newsome’s claim was dismissed because he failed to make a sufficiently strong allegation of unreasonable restraint of trade (i.e., Factor (b)). No worries, though – the judge granted him to leave to amend his complaint to patch up that hole.)

The judge also ruled on a number of other ancillary arguments, but the bottom line here is that both the Keller and the O’Bannon/Newsome cases will proceed. While that does not necessarily mean that any of the athlete-plaintiffs will ultimately prevail, it’s at least a strong indication that their respective theories of liability are valid. It just remains for them to prove that the underlying facts support those theories.

Perhaps more importantly, though, the fact that the cases are proceeding – with the NCAA, in particular, as a defendant – means that discovery will go forward. And that in turn means that considerable light may now be shed on the various contractual arrangements which NCAA has made, and the wads of cash the NCAA has pocketed, in connection with the marketing of athlete-related merchandise. It is entirely possible that the revelation of the details of that enterprise could lead to substantial changes in the relationship between the NCAA, its members, and the student-athletes whose performance is the real key to the profit-generating machine that is college athletics. Attention should be paid.

Report From The Court: FCC - 6, Radar Jammer - 0

Mitchell Lazarus — Fri, 26 Feb 2010 15:24:51 -0500

Fifth Circuit backs FCC on fine issued to manufacturer of radar jamming device.

Most companies are content to lose a case once or twice. But some don’t get the message, and just keep on running up against the wall.

Rocky Mountain Radar (RMR) makes a jammer intended to help motorists evade police radar. It is different from a radar detector (legal in 49 states), which merely signals the presence of a radar beam. The RMR jammer does more. It not only detects the radar beam, but modifies it and sends it back to confuse the police radar device so it cannot register the car’s speed. The driver sails by, with a friendly wave for the officer.

The FCC announced 14 years ago that such jamming devices are illegal. RMR ignored the memo and kept on selling the product. A short time later, the FCC’s then-named Compliance and Information Bureau cited RMR for marketing an unlawful “intentional radiator” – FCC-speak for what most of us call a transmitter.

RMR raised a Clintonian defense. The FCC rules define an intentional radiator as a device that “intentionally generates and emits” radio-frequency (RF) energy. Not guilty, said RMR. Our device does not “generate” RF. Rather, it simply picks up the RF from the police radar and sends it back. Not being an intentional radiator, the jammer is not subject to FCC regulation. QED.

The Bureau disagreed. The device does “generate” a signal, it said. The incoming police beam just serves as a power source. Besides, said the Bureau, the purpose of the device is to cause harmful interference to a licensed service (police radar), which is illegal no matter how we classify the unit.

RMR sought review by the full Commission, which backed the Bureau. Next, RMR appealed to the U.S. Court of Appeals for the Tenth Circuit, whose 1999 decision backed the Commission.

At that point RMR had lost in every available forum except the U.S. Supreme Court. Actually it tried that one, too, but the Court declined to hear the case.

Scholars of communications law are accustomed to ambiguity and uncertainty. But here, for once, there was none. Few principles have been established so plainly: radar jammers are illegal. Some might disagree on whether this is the right outcome, but no one could seriously think the law is otherwise.

Except, apparently, the people at RMR.

By 2007, their product was back on the market. This time FCC fined RMR $25,000 and issued warnings to its distributors. Apparently believing the best defense is a good offense, RMR sued the FCC in a federal district court in Texas, where it not only sought to overturn the fine, but also alleged the FCC had unlawfully interfered with its contractual relationships. The FCC countered with a demand for the $25,000.

RMR’s strategy failed, for lack of a good offense to begin with. The district court decided it lacked jurisdiction over RMR’s claims, but not the FCC’s. The court ordered RMR to pay the money.

By now we can anticipate RMR’s next step: another appeal. This time it went to the U.S. Court of Appeals for the Fifth Circuit (which hears appeals from U.S. district courts in Texas). RMR went back to square one: it argued, yet again, that its device does not “generate” RF signals. Up to that point its record on this issue, by our count, was zero for five.

Make that zero for six: in a recent decision from the Fifth Circuit, RMR lost yet again. This court, too, found the company had violated the FCC rules and ordered it to pay the money.

RMR’s next stop, we suspect, will be another try at the U.S. Supreme Court. The nine folks up there probably have better things to do, and the odds are they will turn down RMR yet again. But RMR seems unable to hear the word “No.” And they still have 11 more Federal courts of appeals to try . . .

[Blogmeister note: The photo displayed above was provided to us by Decatur Electronics.]

Going Mobile

Davina Sashkin — Wed, 24 Feb 2010 21:48:19 -0500

Chairman confirms upcoming effort to re-purpose TV spectrum for mobile broadband

For several months now the question on many TV broadcasters’ minds has been: will they or won’t they take away my spectrum and turn it over to smartphones? And while various FCC higher-ups have dropped conflicting hints about what the answer might be, the fact is that no one has expected to know for sure until the release (currently set for March 16) of the FCC’s National Broadband Plan (NBP). But late this month Chairman Genachowski tipped the Commission’s hand, albeit without adding much practical detail.

The FCC’s answer appears to be: TV spectrum is not being used efficiently, and would be better allocated to mobile broadband use, so the FCC plans to devise some mechanism to encourage TV licensees to cough up some or all of their spectrum in return for the prospect of taking home some portion of the proceeds when their spectrum is auctioned off for broadband.

According to the Chairman, the NBP will call for the “freeing up” of 500 MHz of spectrum over the next decade. And one way the FCC hopes to achieve that, at least in part, will involve “establish[ing] market-based mechanisms that enable spectrum intended for the commercial marketplace to flow to the uses the market values most.”

Can you spell “a-u-c-t-i-o-n”?

Sure enough, that fin de siècle panacea is going to be the go-to device again in the 21st Century. As described by the Chairman, the NBP will propose a “Mobile Future Auction” – unclear whether the “mobile” there modifies “future” or “auction” – which will “permit[ ] existing spectrum licensees, such as television broadcasters in spectrum-starved markets, to voluntarily relinquish spectrum in exchange for a share of auction proceeds”.

Precisely how such an auction would work has yet to be disclosed – indeed, it may not even have been determined yet. But it is apparent that the Commission has thoroughly embraced the notion that television spectrum is a resource that can and should be re-purposed for mobile broadband use. While Genachowski’s speech shed no light on the anticipated auction mechanism, it did offer something in the nature of a rationale as to why TV spectrum is being singled out.

For openers, there is a “massive amount of unlocked value” in TV spectrum – maybe even $50 billion, according to “one study” – and from this, the Commission has ineluctably concluded that there are “inefficiencies in the current allocation”. Who says there’s $50B, give or take, in “unlocked value” there? Why, “a broad range of analysts, companies and trade associations participating” in the FCC’s nearly infinite range of broadband-related inquiries. Which analysts, companies and associations? Well, the Chairman didn’t say. How might the inherent “value” get “unlocked” (and how did it get “locked” in the first place)? That’s another explanation which is left for a later day.

Another reason for grabbing TV spectrum: according to the Chairman, TV “spectrum is not being used efficiently – indeed, much is not being used at all”. In support of this claim Genachowski cited some vague and general claims along the lines of “Even in our very largest cities, at most only about 150 megahertz out of 300 megahertz [of TV spectrum] are used.”

While a speech is probably not the forum in which to lay all one’s cards out on the table, the Chairman might still have offered just a tad more support for the decision to go after TV spectrum. After all, estimates of “unlocked value” are not really something you can take to the bank, particularly if those estimates were propounded by folks who might be in a position to rake in some of that “unlocked value” if things go the right way. And it’s difficult to credit claims of efficiency of spectrum use when the TV industry, and the viewing public, are less than nine months into the DTV era. Certainly there may be substantial spectrum potential yet to be tapped, but why must we assume that the best (maybe even the only) way to tap it is through mobile broadband services to be provided by somebody other than broadcasters? (In fact, FHH has a client who has a technology that will allow TV stations to use any digital bits they don’t need for television programming to provide broadband – something they can do today under present rules and so can do a lot faster than navigating through the political reallocation and auction thickets.)

Perhaps recognizing that his rationale was not all that compelling, Genachowski shifted gears into huckster mode: “the Mobile Future Auction is a win-win proposal: for broadcasters, who win more flexibility to pursue business models to serve their local communities; and for the public, which wins more innovation in mobile broadband services, continued free, over-the-air television, and the benefits of the proceeds of new and substantial auction revenues.” Often when you hear the term “win-win”, it’s a safe bet that somebody’s trying to sell you something that you might neither want nor need. In this case, for example, we don’t know what “flexibility” broadcasters might gain that they don’t have now.

The Chairman did emphasize that the “Mobile Future Auction” is currently envisioned as a voluntary program. Voluntary? Perhaps, but maybe only in the same way that a businessman “voluntarily” decides to buy insurance from the guy who says “nice little business you got here – it’d be a shame if something happened to it.”

In any event, while we may not know all the details, we at least know the direction in which the Commission’s heading. Ideally more details will be available on March 16, the day on which the NBP is currently set to be revealed. But even that will mark, at most, the starting point of what is likely to be a difficult struggle.

Interestingly, it’s not at all clear what difference (if any) the FCC’s views will make. The statute requiring the NBP doesn’t say who is in charge of adopting it, or whether it even needs to be adopted by the Commissioners as the formal recommendation of the agency to Congress. The law simply directs the FCC to do its due diligence to come up with a plan, then tell Congress about it. Other than that, the FCC appears to have no independent authority to jumpstart or otherwise implement the NBP; the only entity explicitly granted authority by Congress to adopt regulations related to the broadband initiative is the Assistant Secretary of Commerce in charge of NTIA, not the FCC. Moreover, the FCC’s statutory auction authority doesn’t say anything about turning over any proceeds to incumbent licensees or anyone else but the U.S. Treasury.

Given the uncertainty about the follow-through, we are cautiously advising broadcasters to view the NBP as the FCC’s recommendation to Congress, and not a final decree. It is also appropriate to bear in mind that the folks in Congress may be reluctant to turn their backs on broadcasters, particularly if broadcasters increase the intensity of use of their spectrum by introducing more multi-channel broadcast or non-broadcast services. Notwithstanding social media and Internet advertising campaigns, etc., candidates continue to flock to broadcasters at election time to reach for voters. And broadcasters’ ability to deliver voters’ eyes and ears may constitute an “unlocked value” of its own.

We will, of course, have to wait and see.

FCC Fine-Tunes Procedural Rules

Mitchell Lazarus — Tue, 23 Feb 2010 17:59:53 -0500

Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure. Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs). By and large the amendments are meant to serve laudable goals: to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
allow the FCC to amend an action (as well as to set it aside) within the first 30 days;
expand the use of electronic filing and notification;
close some of the 3,000+ dockets that have become inactive;
split overly large dockets; and
clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

An ex parte presentation is one made to the FCC staff or Commissioners advocating a particular outcome, in the absence of parties who seek other outcomes. It can be written or oral. These are permitted in some kinds of proceedings, but not others. In some kinds of proceedings that permit them, a party presenting new information must disclose it in a public filing, so that opponents have a chance to respond.

The rules are sometimes abused by parties who either fail to make a disclosure, or omit important information. Some lawyers (none of us here) make an art form of crafting ex parte statements that arguably comply with the rules, yet mislead the opposition.

In its second NPRM addressing the ex parte rules, the FCC proposes to require:

disclosure of all oral ex parte presentations, whether or not they communicated new information;
a summary of any new information;
either a summary of old information presented, or citations to prior filings that contain it;
electronic filing of the above, possibly in machine-readable formats; and
a statement of the nature of a party’s interest, possibly including funding from other parties.

The FCC also considers the relatively rare but important problem of filings made just before or during the “sunshine period,” the seven days immediately prior to an FCC meeting during which ex parte presentations on agenda items are severely limited.

Finally, the FCC asks what kinds of sanctions should apply to ex parte violations.

Comments on each NPRM will be due 45 days after it is published in the Federal Register; reply comments will be due 30 days later. But don’t worry. We will pay attention to the fine points so you don’t have to.

Effective Dates Set For Wireless Mic Clear-Out Process

FHH Law — Tue, 23 Feb 2010 15:16:32 -0500

The FCC has received approval from the Office of Management and Budget to implement its new rules clearing wireless microphones out of TV Channels 52-69 (the 700 MHz band). We reported on the adoption of those rules last month. OMB approval affects some of the deadlines in the clearing-out process. Those deadlines are now as follows:

At any time on or after February 17, 2010, Public Safety and commercial licensees who are ready to occupy 700 MHz band channels may give notice to wireless microphone users to clear out. (See Section 74.802(e)(2))
Effective February 28, 2010, anyone who sells or leases wireless microphones (or offers them for sale or lease) must provide a “Consumer Alert” on their websites, in their product catalogs, and on microphone packaging, using FCC-specified wording. (See Sections 15.216 and 74.851(i)).
Effective June 15, 2010, any wireless microphone that operates above 698 MHz must be for export only and labeled that it may not be operated in the United States. (See Section 74.851(h)).

The June 12, 2010, deadline by which all wireless microphone users must stop operating on Channels 52-69 (698-806 MHz), remains unchanged.

FCC Unleashes Surveillance Robot

Mitchell Lazarus — Tue, 23 Feb 2010 14:26:34 -0500

Waiver makes remote-control TV device available to police and firefighters.

Start with something the size of a beer can. Put a wheel on each end, and a TV camera inside, peering out. Pack in a lot of electronics, motors, and batteries. Make the unit able to survive repeated 30-foot drops, but keep the weight to just over a pound. Provide a separate, hand-held controller with a joystick to drive the unit, and a TV screen to show the user what the unit sees.

The result is a surveillance robot called the “Recon Scout,” which the FCC recently authorized under a waiver.

The U.S. military has been using the device in Iraq and Afghanistan for a few years now. Before entering a building, troops can toss a Scout into an upper-story window and steer it down the stairs and through the rooms to detect hostile persons and size up their armament.

With the FCC waiver in hand, U.S. police and fire departments, and security personnel in critical infrastructure industries, will have access to the same technology. Typical applications are likely to include checking a building prior to forced entry, locating hostages and hostiles before a rescue attempt, searching for survivors in a burning building, and inspecting the site of a chemical or nuclear release. A police task force told the FCC, after testing the Recon Scout, “We don't feel comfortable without this thing now.”

The manufacturer faced a problem, one increasingly common for new radio-based technologies. The product was plainly in the public interest – no one disputed that it could save lives – but there was no place for it in the FCC’s spectrum allocations. True, the robot came with constraints. For one, it needs frequencies below about 500 MHz to achieve adequate penetration of building walls, at power levels sustainable by batteries in a one-pound device. For another, it requires analog modulation, even at the cost of more radio bandwidth. Digital TV transmission cuts off abruptly if the robot ventures too far, making it impossible for the operator to drive it back into range.

The military version of the Recon Scout, which is not subject to FCC oversight, operates in the 420-450 MHz band. Domestically, that band is allocated primarily for military radar, and secondarily for amateur use. With nowhere else in the spectrum to go, the manufacturer asked the FCC to waive its spectrum usage rules to allow operation in that same band.

Several police and fire departments supported the waiver. A number of amateur radio operators opposed it. Also weighing in, as is usual in such proceedings, was the National Telecommunications and Information Administration (NTIA), which administers spectrum for the federal government, including the military. NTIA warned that it did not want to see mass-marketed consumer devices in a military radar band. But it acknowledged that law enforcement and firefighting agencies could benefit from the Recon Scout. On that basis it signed off, except for operation within 30 km of five specified radar sites.

The FCC likewise signed off, adopting NTIA’s restrictions and adding conditions of its own, including limits on sales numbers for the first two years. Police and fire personnel around the country will feel a little safer.

Read the FCC order here.

FCC Opens E-Rate Facilities To The Public At Large

Peter Tannenwald — Mon, 22 Feb 2010 10:29:46 -0500

Limited non-educational use of E-Rate-subsidized services OK’d temporarily with strings attached, as FCC considers making change permanent

For more than a decade schools and libraries have been eligible, under the E-Rate program, for discounts on a number of telecommunications services, Internet access, internal connections and related maintenance. The idea has been to promote the availability of affordable Internet connections for educational purposes. And to assure that the program is used for that focused goal, the FCC’s rules governing the E-Rate program have flatly prohibited schools from allowing E-Rate-subsidized facilities to be used for anything other than educational activities.

But now the Commission has loosened that prohibition, at least temporarily: through June 30, 2011, E-Rate-subsidized service in schools may be made available for use by the general community when school is not in session, as long as the cost to the government is not increased and the public is not charged for the Internet access. In the meantime, the FCC has invited comments on whether to make that change permanent.

Since the inception of the E-Rate program, subsidized service at schools could be used only for “educational purposes”. That means students and faculty may use the service at any time, but the general public may never do so. The result is that school computers are often idle at night, on weekends or during school breaks, when they could be put to use by adults who cannot afford broadband service at home or who live in geographic areas where broadband is not readily available. In the current difficult economic circumstances, Internet access could be used to apply for jobs, fill out government forms, and the like.

The FCC gets the point, so on its own motion it has declared that, from now through June 30, 2011, schools may choose to allow members of the community at large to use school equipment and Internet access when students are not around. But to assure that those facilities continue to be primarily dedicated to education, the FCC has attached strings:

Non-educational use is restricted to times when school is not in session (including evenings, weekends, holidays, and vacations);
Expanded use will not justify any additional funding beyond what is needed for strictly educational purposes; and
The public may not be charged for Internet access (although reasonable charges may be imposed to pay for extra heat, light, security, and similar increased costs).

The FCC says it will be diligent in scrutinizing funding applications, and especially amendments to pending applications, to make sure that no effort is made to sneak in requests to fund anything other than educational use by students and faculty.

Expanding the universe of users raises the question of whether mandatory filters to protect children from “inappropriate content” – obscenity, child pornography, other material that would be “harmful to minors” – should be removable when adults use the Internet access. The FCC will leave that decision up to individual schools.

While the Commission has made this relaxation effective only through June, 2011, it has at the same time proposed to amend its rules to make the relaxation permanent. That would be accomplished simply by a regulatory specification that E-Rate-subsidized facilities will be used “primarily”, rather than “solely”, for educational purposes. Comments on that proposed change will be due 30 days after the proposal is published in the Federal Register.

In the meantime, the temporary relaxation is effective immediately.

A Complaint Process Is Born!

Harry Cole — Fri, 19 Feb 2010 13:31:47 -0500

Long in coming, closed captioning complaint process finally emerges; Contact information due by March 22, 2010

The gestation period for the closed captioning complaint process – which thus far has fallen somewhere between the gestation periods of giraffes (420-450 days) and sperm whales (480-590 days) – appears to have entered its final phase.

The Commission first announced its new and (arguably) improved complaint process in early November, 2008. As of December, 2009, that process had still not become effective, even though the Office of Management and Budget had signed off on it in July, 2009. But now we are pleased to report that the FCC has announced that the new closed captioning complaint process is effective as of February 19, 2010 . . . except for Section 79.1(g)(3), which still isn’t.

Let’s put that exception off to the side for the moment and focus on the elements of the process that have (finally) become effective.

As of February 19, any viewer who believes that a video programming distributor (VPD) has failed to comply with captioning requirements may file a complaint – either with the FCC or with the VPD itself. (FYI – VPDs include, for these purposes, over-the-air broadcasters and multichannel video programming distributors, such as cable operators and satellite TV operators.) The complaint must be in writing (fax, e-mail or snail mail), and must be submitted within 60 days of the alleged failure.

When a VPD receives a complaint – whether the complaint is sent (a) directly to the VPD or (b) to the FCC which then forwards it on to the VPD – the VPD has 30 days to respond in writing to the complainant. If the complainant isn’t satisfied with the response, he/she can then complain further to the Commission.

The newly effective rules also require VPDs to post in various places, within 30 days (i.e., by March 22, 2010) contact information of various sorts. First, VPDs must designate a telephone number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns, such as technical problems which may cause captions to vanish or become garbled. Second, they must also provide contact information for closed captioning complaints of a more general and less immediate nature. That information must include the name of a person with primary responsibility for captioning issues and rule compliance, the person’s title or office, telephone number, fax number, mailing address, and e-mail address. All of this information must be posted on the VPD’s website (if it has one), included in billing statements for multichannel providers, and included in any local phone directory in which the VPD directly advertises or otherwise places commercial listings.

Perhaps more importantly, the VPD is now required to file its contact information with the Commission within 30 days of the rules’ effectiveness (again, by March 22, 2010). The Commission has set up a handy webpage which includes a link to a new electronic filing system just for this purpose – which the FCC specifically encourages VPDs to use – although the new rules also permit submissions by e-mail and/or in plain old paper-and-ink.

All contact information must be updated as necessary. (Website contact listings must be updated within ten days; listings on billing inserts must be updated by the billing cycle immediately following the changes; directories must be updated with the next publication.)

What about Section 79.1(g)(3), the sub-subsection that missed the effectiveness boat? That’s the provision that would require VPDs who receive a misdirected complaint to forward it along to the proper addressee. For example, the complainant might have written to her cable company – since that’s who she normally writes her monthly subscription checks to – not realizing that the party really responsible for the complained-of captioning issue was a program producer or distributor unrelated to the cable company. Under the new rules, the cable company would be obligated to forward the complaint on to the right folks. But as we reported last December, such forwarding would entail the disclosure of certain personal information – and the Communications Act prohibits such disclosure. So the Commission has put a hold on this particular forwarding requirement until it can resolve that pesky problem. No word yet on when that might be.

Future of Media Comment Deadline Extended

FHH Law — Fri, 19 Feb 2010 09:27:55 -0500

As we reported last week, the FCC’s Future of Media project (FOMp) has posed a long series of extraordinarily broad questions for public comment. The deadline initially set for those comments was March 8. If you’ve been burning the midnight [insert appropriately eco-friendly energy source here] in a desperate struggle to pull your thoughts together in time to meet that deadline, you can take a break. The Commission has announced that the deadline for comments has been extended to May 7, 2010. Since the original comment period provided only 46 days to begin with (the March 8 deadline was announced on January 21), the 60-day extension more than doubles the available time.

Meet The New Fee, Same As The Old Fee

Kevin Goldberg — Tue, 16 Feb 2010 10:51:05 -0500

As expected (and as we predicted here), the Copyright Royalty Board (CRB) has reinstated the $500 per channel annual minimum fee for both commercial and noncommercial webcasters. The great irony, of course, is that it has taken until the final year of the current five-year royalty term to confirm these annual minimum payments.

The official reinstatement of the fee is likely to have no more than a minimal effect on many, if not most, broadcasters. The final rule, published by the Copyright Royalty Board on February 8 (but technically not effective until March 10), applies only to those commercial or noncommercial webcasters who elected to continue webcasting under the terms and conditions of the March, 2007, Copyright Royalty Board decision.

Many broadcasters have signed on to one of the webcasting settlement agreements available to commercial or noncommercial webcasters – and, in so doing, they agreed to the same annual minimum fee of $500 per channel. We expect that those who didn’t sign on to one of the settlement agreements probably assumed the $500 per channel annual minimum would be reinstated and went ahead and paid it by January 31 (or at least have already factored it into their webcasting budgets).

If you (a) are webcasting, (b) did not sign on to one of the settlement agreements, (c) did not already make a minimum payment to SoundExchange for 2010, and (d) would like more information about how to make that payment, feel free to get in touch with us.

The FCC Wants To Know Everything About Everything

Kevin Goldberg — Thu, 11 Feb 2010 06:31:55 -0500

“Future Of Media project”to examine the, um, future of media

The FCC has launched an “examination of the future of media and information needs of communities in a digital age”. The scope of the inquiry seems to be Everything-Anybody-Could-Possibly-Know-And-Then-Some, although speculation, surmise and other elements arguably falling short of “knowledge” or “fact” will apparently also be welcome. You have until March 8 to get your thoughts together and ship them to the FCC.

The Commission in turn has promised that it will “produce a report”. Presumably, that report will be based on comments submitted in response to the FCC’s inquiry, but the FCC stops short of any absolute commitment along those lines.

A friend of mine once asked an acquaintance exactly what that person’s communications consulting business consisted of. The answer: “I write reports”. We have laughed about that ever since because we can’t figure out who would pay for such a service.

But it’s no laughing matter when the FCC sets out to write, perhaps with unrealistic ambitions, a report about staggeringly broad and unfocused topics. The Commission claims that the report will “provid[e] a clear, precise assessment of the current media landscape” and that its preparers – the largely unidentified “Future of Media project” (FOMp) – will “analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties”.

One thing is incredibly clear: the report, and the FOMp as a whole, will necessarily implicate the possibility of government regulation of news and other content. To illustrate, an early contribution to the FOMp conversation – delivered by a post to the FOMp blog (http://reboot.fcc.gov/futureofmedia/blog) on January 25 – expresses concerns about the Supreme Court’s decision in the Citizens United case. It observes that, while that decision is likely to increase broadcasters’ revenues, that may not mean any improvement in broadcast journalism, since the commenter’s concept of good journalism may not be “the kind of journalism the market would support”. By contrast, another commenter (in a post dated January 27) suggests that “consumers of journalism” should be encouraged to “make appropriate financial contributions” to journalists, journalistic organizations or other producers of “work” which the consumers deem “valuable”. (The FOMp blog header, presumably written by someone on the inside of the FOMp, refers to that as “good content”.)

At this point, your robot should be dancing around, eyes aglow, arms flailing, screaming “Danger, Will Robinson! Danger!”

The Public Notice contains a list of 42 questions (many in several parts), sprinkled over these seven broad subject headings:

Information Needs of Communities and Citizens
Business Models and Financial Trends
Commercial Broadcast TV and Radio, Cable and Satellite
Noncommercial and Public Media
Internet and Mobile
Newspapers and Magazines (though the FCC technically has no jurisdiction to regulate these media)
Research and Further Questions.

The specific (and we use that adjective very loosely here) questions range from the specialist/wonky (e.g., “Are there changes in tax law, copyright law, non-profit law, noncommercial or commercial broadcasting laws or policies or other policies that should be considered”) to the infinitely generalist (e.g., “In general how should FCC policies change to better consider the information needs of communities in the digital era”).

Some questions speak directly to broadcasters, soliciting statistical or anecdotal evidence. F’rinstance, Question 18 (an amalgam of at least five separate sub-questions, by our count):

For local commercial broadcast television and radio stations, what have been the trends for staffing, the amount of local news and information aired, the audience ratings for such programming and local station profitability? What have been the roles of station debt, advertising revenue declines, government policies, efficiency improvements, and ownership consolidation (including combining the news staffs of commonly owned or operated stations)? What has been the impact of competition for audience from the Internet or other information sources? How are these broadcasters using the Internet, mobile applications, their multicast channels/additional program streams, or other new technologies to provide local news and information? How have these changes affected the availability of educational programming for children?

Remember, you only have until March 8 to pull all of that together.

At least one of the questions may be a trick question. Question 13, for example, asks:

Many media companies are struggling, but others are reporting healthy profits. What explains the differences in performance? What roles are played by debt levels, consolidation patterns, government policies, geography, diversity of and/or decline in revenue streams, technological innovation, cost reductions, and audience growth?

Excuse us, but if we knew the answer, we (a) probably wouldn’t be in the economic mess we’re in and (b) probably wouldn’t be too keen on sharing our insight for all our competitors to see. But maybe that’s just us.

And in case Questions 1-41 (with all of their myriad subparts) may have failed to elicit some, any, important kernel of truth, Question 42 takes care of that: “What questions have we failed to ask that we should?”

In other words, the FOMp wants to gather as much information as possible. So much so that it not only will review the answers it receives to these 42 questions, but also will draw from other proceedings, including a couple which have already been open for a decade or more and have already developed extensive records. Among the on-going proceedings which the FOMp plans to commingle are:

Public Interest Obligations of TV Broadcast Licensees (kicked off in 1999);
Empowering Parents and Protecting Children in an Evolving Media Landscape (a relatively recent – 2009 – entry, but extraordinarily broad in scope, as we have previously reported);
Broadcast Localism (circa 2004);
Low Power FM (another golden oldie first unleashed in 1999);
Disclosure Requirements for TV Interest Obligations (from 2000);
A National Broadband Plan for Our Future (another recent item, but one with a staggeringly expansive reach); and
Preserving the Open Internet/Broadband Industry Practices (the ubiquitous issue of Net neutrality).

The FOMp has advised that, if you have previously filed relevant comments in one of those already-in-progress proceedings, you should not refile them in this proceeding. Presumably, FOMp folks will pore over each of the approximately 50 bazillion submissions in those dockets and cull any nuggets which might pertain to the 42 Questions. However, going forward, if you have comments relevant both to the Future of Media inquiry and to any another proceedings, you should by all means file your comments in all proceedings to which they apply.

All this occurs simultaneously – and may yet intertwine – with the work of other agencies which are engaging in similar proceedings (for example, the Federal Trade Commission recently held a two-day workshop entitled “How Will Journalism Survive the Internet Age”).

In the spirit of the Reboot.FCC.Gov website we blogged about recently, you'll be able to follow along on a special “Future of Media” page on that site and can continue to add to the discussion as new ideas come to you. The FOMp will accept comments through its website. However, it asks that comments of three pages or longer be submitted through the Commission’s ECFS system.

Then, somehow – we don’t know how and we certainly don’t know when – the FOMp plans to wade through the mass of information and come up with a finished product. The FOMp does make one promise: “We will remain mindful of the Hippocratic Oath of physicians, “First, do no harm.” In the spirit of the FOMp’s apparent concern about the quality of information available to consumers, we suggest that the FOMp might want to check its own sources a bit more carefully: “First, do no harm” does not appear in the Hippocratic Oath of physicians, or any other Hippocratic Oath that we’re aware of.

Ask, And It Shall Be Given To You

Dan Kirkpatrick — Tue, 09 Feb 2010 12:18:20 -0500

HD Radio proponents ask for, and get, major digital power increase; First adjacents get minor protection

The Media Bureau has dramatically increased the power level for IBOC digital FM service (the service known in the marketplace as “HD Radio”). In so doing, the Bureau effectively dismissed, or at least minimized, serious interference concerns expressed by non-HD stations (particularly those operating on channels first adjacent to HD stations). While the increased HD power authorizations will still be subject to a complaint process which could theoretically reduce maximum power available in certain situations, that complaint process – at least at first glance – falls short of everything a victim of interference might have hoped for.

The Bureau has decided that “eligible stations” should be permitted to increase their digital power by 6 dB – meaning that their digital power can move – pretty much with no questions asked – from the current maximum ERP of 20 decibels below carrier (-20 dBc) to -14 dBc. Once the new rule becomes “effective”, eligible stations will be permitted to go to that -14 dBc limit without any prior approval, as long as they file a notification of the increase through CDBS within 10 days. While the revised power increase rule won’t technically be “effective” for some time, the Bureau, apparently eager to make the higher power available without the legalistic nicety of “effectiveness”, has announced that it will grant STAs in the meantime. (See below for more details on the STA process.) Stations “eligible” for this immediate upgrade are non-“super-powered” stations.

Read on for more details.

Background

HD Radio represents the first – and, so far, the only – technology generally available to bring the radio broadcast industry into the digital world. And unlike digital television, HD Radio promises the Holy Grail-like property of IBOC – “in-band, on-channel” operation that would not require any major upheaval in channel allotments. Where DTV involved massive reassignments of channels (not to mention two-channel operations during the run-up to the final DTV transition), radio licensees can stay on their original channel and simply tack-on digital operation much like a standard subcarrier (SCA) service.

The technology was developed by private parties, who spent years trying to convince the Commission that their IBOC system would work. The FCC agreed in 2002, despite considerable skepticism voiced by folks who did not happen to have any direct pecuniary interest in marketing the HD Radio system. But again, HD Radio was and remains the only game on the table for digital radio broadcasting. So the Commission, recognizing the seemingly inexorable movement of all media away from analog and toward digital, had little choice: if the radio industry was to be goosed toward digital, it made sense to officially bless the only system to walk in the door promising digital service. The fact that that system happened to be IBOC obviously sweetened the pot.

The digital radio specs originally adopted by the FCC were designed by HD Radio’s proponents and cheerleaders, who assured the Commission that those specs would be sufficient to deliver a station’s digital service to everybody who could receive the station’s conventional analog signal. (In industry parlance, digital coverage would “replicate” analog coverage.) The crucial parameter was power: a station’s digital ERP was set at one percent of its analog ERP (i.e., 20 decibels below carrier, or -20 dBc).

Oops. It didn’t take long to realize that full replication wasn’t happening, especially in “mobile and indoor environments” (a universe which, frankly, seems pretty all-inclusive, since it appears to exclude only non-mobile outdoor environments). And thus began the drumbeat for more digital power.

HD Radio cheerleaders pushed for an increase from 1% to 10% of authorized power for all but some Class B FM stations that happened to be “super-powered”. That would represent a ten-fold increase – by any measure a very substantial boost. FYI: “Super-powered” stations are those with ERP that exceeds the maximum for their class, or with facilities which produce a reference contour greater than the pertinent maximum class contour distance. See Section 73.211 of the rules for more detail.

While Team HD Radio pushed hard for immediate, or near-immediate, action on their request, others – primarily National Public Radio – urged a more cautious approach. But last November, NPR and the HD Radio proponents reached agreement on increased power levels and the FCC has now largely signed onto the terms of that agreement.

New Power Limits, Complaint Process

As described above, non-super-powered stations will be able to increase their digital power by 6 dB on their own with no prior FCC approval (provided that they notify the Commission within 10 days). But there’s more.

Eligible stations would be permitted to apply for even greater power increases, up to a total increase of 10 dB over current levels – i.e., to -10 dBc. Because of the Bureau’s concern about possible first adjacent interference, the maximum increase beyond the 6 dB automatic increase described above will be based on a “go/no go” analysis designed specifically to protect potentially affected first adjacents. The analysis is based on calculated field strengths; anyone thinking that such calculations fail to account for peculiarities – terrain, environmental or technical –which produce anomalous results are invited to demonstrate those factors in the application.

Super-powered stations of any class – not just Class B – will be limited to “the currently permitted -20 dBc level or 10 dB below the maximum analog power that would be authorized for the class of the super-powered FM station adjusted for the station’s [HAAT], predicted in accordance with Section 73.211(b).” And unlike their non-super-powered pals, super-powered stations will not be permitted to crank up their digital power with no prior FCC say-so. Rather, super-powered stations will have first to file an application, in the form of an informal request, for any increase in digital ERP.

If you’re unsure of whether your station is “super-powered”, fear not: the Bureau has posted a jim-dandy gadget on the Audio Division’s webpage that determines whether any station is super-powered and, if so, calculates that station’s maximum HD power. You can try this tool – dubbed the “FM Super-Powered Maximum Digital ERP Calculator” (presumably, “super-powered” here is not intended to modify “calculator”, but you never know) – by going here and entering the station’s call sign and Facility ID Number.

While the Bureau’s decision clearly signals its interest in promoting digital radio, the decision nonetheless provides a formal complaint mechanism for first adjacents convinced that they are suffering as a result of a neighboring station’s digital power increase. The complaint process is not, however, particularly user-friendly.

If a full power analog station (LPFMs and translators need not apply) believes that it is receiving interference within its protected contour from an HD station operating with digital ERP in excess of -14 dBc, the interferee must first attempt to “work cooperatively” with the interfering station to resolve the issue. That is done by progressively reducing the HD station’s digital operating power until a mutually agreeable power is reached. If cooperation is successful, the HD Radio station must simply notify the Commission of its new digital power.

If no amicable resolution is reached, the station receiving interference may file a complaint with the FCC. This is not a streamlined complaint process. Rather, the complaint must be supported by at least six reports of on-going (not transitory) interference. Each report must include a map showing the location of the reported interference and a detailed description of the nature and extent of the interference at that location. Interference allegedly occurring outside the station’s protected analog contour will not be considered.

The Bureau is supposed to act on such complaints within 90 days. As a concession to the likelihood that the Bureau may have difficulty meeting that deadline, the new rules provide that an allegedly interfering station must, when the 90-day deadline is reached, reduce digital power to -14 dBc pending Bureau resolution of the complaint. If complaints continue, the Bureau may order further reductions – first to -17 dBc, later to -20 dBc – pending Bureau action on the complaint.

Such a mandatory reduction scheme may seem helpful to the suffering first adjacent complainant, but let’s think about that for a minute. The mandatory part kicks in only after: (a) the complainant has learned that its protected contour is getting beat up and has identified the apparent offender; and (b) the complainant has tried, unsuccessfully, to “work cooperatively” with the interfering HD station; and (c) the complainant has compiled the necessary showing (at least six on-going instances, mapped and documented); and (d) the complainant has filed its complaint; and (e) 90 days have then passed. If the complainant turns out to be correct, that means that it will have had to suffer months, possibly even a year or more, of harmful interference before getting any relief.

STAs available NOW!

It’s pretty clear from the decision that the Bureau really wants to give HD Radio Nation a big leg up. Further underscoring that is the fact that the Bureau is making the initial 6 dB power increase available to HD Radio licensees even before the new rules have become formally “effective”.

The effective date of the rules will occur as of the later of: (a) thirty (30) days after publication of the decision in the Federal Register; or (b) announcement in the Federal Register of OMB approval of the new rules. But that’s obviously too long to wait, so the Bureau has invited requests for STAs to increase power (by up to 6 dB). The Bureau has even posted a handy-dandy step-by-step instruction on how to file such a request, detailing precisely what information to include in it.

The bottom line here is that the Commission is clearly committed to the concept of digital radio . . . even though that service has been struggling for years, without much apparent success, to gain any kind of traction in the marketplace, and even though broadcasters themselves have been less than enthusiastic about it (at least judging from the dwindling number of stations seeking to take the HD plunge). Still, the Commission is doing its best to prop HD Radio up. That may be just what the doctor ordered, and it may turn out to be a huge boon to the radio industry generally. But if the digital power increase causes substantial interference to analog stations which still constitute the vast majority of the radio industry, that increase could turn out to be just one more unwanted and unneeded difficulty in an industry which is already dealing with a boatload of other difficulties. Time will tell.

FCC Okays More Body Scanners

Mitchell Lazarus — Mon, 08 Feb 2010 14:24:39 -0500

Action adds more time, more quantities to 2006 waiver

Just two weeks after affirming a 2006 waiver for body-scanning security devices, the FCC has now extended that waiver by another year and upped the allowable sales by another 200 units.

The action coincides with news reports that the Transportation Safety Administration is increasing the numbers of body scanners at U.S. airports in response to security threats, including an individual who allegedly smuggled explosives aboard a U.S. aircraft in his clothing last Christmas.

Read the FCC’s order here.