CommLawBlog

Media Access Project Exits Stage Left

Harry Cole — Wed, 16 May 2012 16:37:24 -0500

Public interest communications “law firm and advocacy organization” closes up shop

Media Access Project (MAP), a long-time player in the soap opera that is communications law, has left the show. As of May 1, MAP suspended operations “after evaluating the difficult funding environment facing MAP and other progressive public interest groups.”

Founded in 1973, MAP assumed a variety of roles over the course of its 39-year history. To some it was a tough litigator, a thoughtful advocate, and a mouthpiece for a wide range of interests that might not otherwise have had a mouthpiece. To others, it was a self-promoting buttinsky given to advancing positions of questionable (if any) validity. A seemingly constant presence in the mainstream press, it could be a total pain in the tail to those with whom it disagreed. Many – maybe even most – “industry” representatives may have disagreed with many – maybe even most – of MAP’s positions and tactics. But MAP, apparently indefatigable and unquestionably resourceful, made its voice heard, for better or for worse.

MAP prevailed in a number of important cases before the Commission and the courts and succeeded in swaying legislative policy. But MAP’s more lasting impact will likely be the fact that it spawned, directly and indirectly, a new generation of like-minded organizations that will carry on MAP’s work into the 21st Century. The ongoing work of those organizations will be MAP’s true legacy.

The demise of MAP has a particular, personal, effect on this blogger.

In 1975, barely a year out of law school, I entered the private practice of communications law. My first role: litigation grunt in a large law firm helping a Lansing, Michigan TV-AM-FM licensee defend its licenses in an FCC hearing. The hearing had been triggered by – you guessed it – MAP, which had successfully petitioned against the stations’ renewals on behalf of the Lansing ACLU. MAP was then headed by Harvey Shulman, with able assistance from his colleague, Collot Guerard. (Andy Schwartzman eventually replaced Harvey.) This may have been MAP’s first real case. It was certainly mine. We were all just kids then, wailing away on each other as trial lawyers are wont to do. The case dragged on for years.

Since then we have faced off against each other in some cases, we have joined forces in other cases, and we have occasionally conferred with each other on various issues, as long-time veterans with mutual respect for one another sometimes do.

It is both bittersweet and sobering to realize that MAP, an institution that has been a prominent part of my professional landscape for as long as I’ve had a professional landscape, is now gone.

But let’s not get all morose because, whatever you might have thought of MAP, its story is pretty remarkable. Just how far did MAP come over the course of its existence? Consider this: in 1975, word was that MAP’s litigation of the Lansing case was being funded in large measure by spaghetti supper benefits held in the homes of ACLU members in Lansing. Now, in 2012, MAP is throwing itself a going-away party. True to its roots, MAP is using the opportunity to raise funds (to retire debt and close out operations). Sponsorships up to $5,000 a pop are suggested. That’ll buy a lot of spaghetti. Perhaps even more indicative of MAP’s latter-day stature: MAP says that both Chairman Genachowski and former Commissioner Copps will be attending the party and delivering remarks.

From a somewhat ragtag, shoestring operation born in the 1970s, MAP put itself on the map. It’s now gone, but it will not soon be forgotten.

FHH Welcomes Back Kathy Kleiman

FHH Law — Tue, 15 May 2012 10:28:05 -0500

Internet expert returns to co-head Internet Law and Policy Group.

Fletcher Heald & Hildreth, P.L.C. is pleased to welcome Kathy Kleiman back into the FHH fold. Kathy was an associate with the firm in the 1990s, but she left to explore the then-just-developing world of Internet Law (but not before she had co-founded the firm’s Internet Law Group, one of the first of its kind). She now returns as FHH’s Internet Counsel to co-lead its Internet Law and Policy Group.

To say Kathy is well-suited for the job is an understatement. She helped found the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that coordinates the domain name system without which the Internet wouldn’t be the Internet. Kathy was a key drafter of the domain name dispute policy everyone uses today, and an editor of many sections of the rules governing new top-level domains. She has traveled to ICANN meetings in more than a dozen countries on six continents and spoken on Internet Free Speech, intellectual property protections, fair use, privacy and due process around the world.

Kathy is Beantown-educated – Harvard undergrad, BU law (both with honors, thank you very much). She currently lives in Falls Church, Virginia, where she dabbles in community leadership and politics when she’s not tending to her two kids. In what passes for free time chez Kleiman, she is also producing a documentary about the six women who programmed ENIAC, the world’s first modern computer, and thus founded the field of modern programming. (Want to know more about Kathy’s background? Check out her extensive résumé here.)

Kathy will be working with clients on a wide range of projects relating to: domain name conflicts; challenges and opportunities likely to be encountered in connection with new top level domains; website protections; and Free Speech and intellectual property issues in the Internet age. And, if the Blogmeister has anything to say about it, she’ll be a regular contributor here.

She can be reached at 703-812-0476, by email at Kleiman@fhhlaw.com, or at Skype ID Kathy.kleiman.

Top Ten Tips for Telecom Transactions

Robert Butler — Tue, 15 May 2012 09:04:47 -0500

[Blogmeister’s Note: In January Fletcher, Heald & Hildreth welcomed Robert Butler into the fold. Bob – whose extensive bio can be checked out here – has decades of experience in telecom contracting, the fine art of identifying a client’s telecom needs and negotiating to secure the capacity and services to meet those needs without (a) over-buying (i.e., ending up with more services or capacity than you want), (b) under-buying (i.e., getting less than what you really need), (c) over-paying, or (d) exposing yourself to unnecessary potential liabilities. Bob has graciously put together a set of tips that any party looking to deal with a telecom provider should keep in mind. The following -- which presents the first two of Bob's Top Ten Tips -- is the first of five installments.]

Buying telecommunications and related services presents a different kind of contracting challenge. Such services are, of course, absolutely essential in the modern marketplace. But successfully arranging for just the right services is a far cry from buying paper clips at Office Depot.

Start with the expanding universe of constantly developing high tech products available, all swimming in a dense alphabet soup of acronyms – VANs/WANs, VPNs, VOIP, ISDN, DSL, ATM, MPLS, DS1s, 2s, and 3s, OC-1/10s, etc. Recognize that those products include a mix of regulated and unregulated offerings. Throw in the reality that many routine transactional documents often still include (at least in the initial go-round) contractual artifacts from a long gone monopoly era. Appreciate the fact that one’s particular situation often demands unique contractual provisions addressing specialized needs or concerns. And don’t forget the importance of minimizing exposure to liability that could arise from myriad potential worst case scenarios.

The bottom line is that a steady and experienced hand is indispensable to securing a customer-friendly deal. The following are prime examples of areas in which an experienced hand can and should assist anyone looking to arrange for telecom services.

Tip No. 1 - Plan Early

Try to stay at least a year ahead of the game. Whether you’re planning to renew an existing arrangement or strike an entirely new deal, a year or more in advance is NOT too early to begin planning to meet your future telecommunications requirements.

Before jumping into any deal, you’re going to need to:

identify your current service demands (by, e.g., obtaining detailed information from your existing provider);
identify projected service demands; and
evaluate new and upcoming technologies in this fast moving field.

Above all, don’t wait until your current agreement is about to expire. The closer you are to losing your existing telecom services, the less leverage you have to negotiate. Sharply increased rates and/or other less than desirable terms can be avoided if you start the process early and don’t end up trying (usually unsuccessfully) to negotiate with your back against the wall.

Once you have a well-founded idea of what you currently need and what you’re likely to need down the line, use that knowledge to prepare a request for proposal (RFP) to solicit competitive bids from potential telecom vendors. The RFP should require potential vendors to provide detailed and specific responses to all items, including not only service and pricing proposals, but also key contract terms. If you have particular contract language covering important terms in mind, that language should be set out in the RFP so that there’s no question about what you want. And you should insist that, if a responding vendor has any problems with your proposed language, the vendor propose alternative language that would be acceptable to the vendor. This will save substantial time in the inevitable follow up negotiations.

Tip No. 2 - Understand the Structure of the Deal Documents

The typical telecommunications agreement consists of a range of separate and distinct components, each of which serves one or more functions once the arrangement is signed and put into operation. You start with a general “terms and conditions” document (often dubbed a master agreement or MSA), to which service-specific attachments (possibly titled “supplements” or “addenda”) are appended. The MSA usually also provides for service orders to be placed at times during the life of the agreement. It may also include reference to separate tariff schedules, service guides, price guides and other such items.

This structure presents significant risks for the uninitiated. Understanding how these documents fit together is crucial to ensuring that you ultimately get out of the deal exactly what you think you have bargained for.

For example, the various additional documents – attachments, guides, addenda, etc. – may include hundreds of provisions totaling a thousand pages or more, all slanted in favor of the carrier/provider. These are often simply posted on a website and subject to unilateral changes by the carrier. Tariffs are similarly changeable and, what’s worse, they control by operation of law even if your vendor’s rep has explicitly told you otherwise.

In other words, even if you think that you’ve nailed all the important details down in the MSA, other elements of the deal incorporated by reference in the MSA (e.g., tariffs) can still be changed by the vendor without notice to you.

To avoid major disappointment, it is therefore of paramount importance that all critical business terms be expressly set out in the core contract documents. Also, you should preserve, at a minimum, the right to terminate the agreement in the event any provision is altered in a manner unfavorable to your interests. This can often be accomplished through inclusion of a material adverse change (MAC) clause.

Another source of potential surprise: service attachments and orders generally control over conflicting terms in an MSA. This means that a lowly clerk submitting an order for something as simple as a new phone line could make a material change in an agreement that was painstakingly negotiated by your executives and lawyers. It follows that establishment and diligent implementation of a reliable contract administration process are necessary to protect your deal.

Online TV Public File Update: Deadlines Set for Seeking Reconsideration, Judicial Review

FHH Law — Fri, 11 May 2012 04:42:33 -0500

Meanwhile, FCC cranks up the Paperwork Reduction Act process

If you’re thinking about asking the FCC to reconsider its recent decision to move TV public files to an FCC-maintained cloud-based online system – or maybe if you’re more inclined to ask the courts to take a look at that decision – your deadlines for doing so have now been set. The Commission’s Second Report and Order, which we reported on last month, has now been published in the Federal Register. That means that (as dictated by Section 1.429 of the rules) petitions for reconsideration are due to be filed with the Commission no later than June 11, 2012.

On the other hand, thanks to 28 U.S.C. §2344, petitions for judicial review may be filed by July 10. Those can technically be filed with any of the federal courts of appeals, but heads up. If you’re hoping to have a particular circuit review the FCC’s order, you need to be mindful of the judicial lottery process and Section 1.13 of the rules. As implemented by the Commission, that process requires that, to be part of the judicial lottery, a petitioner has to file with the FCC’s General Counsel within 10 days of the Federal Register publication (in the case of the Second Report and Order in the public file proceeding, that would be May 21) a copy of its petition for review with the court of appeals of its choosing; that copy must bear a date/time stamp from that court proving that it was in fact filed. In other words, if you’re going to be picky about what circuit should hear the appeal, you’ve got to act much faster than the rules would otherwise allow.

This flurry of procedural dates does not, however, mean that the new public file rules are going to become effective in the immediate future. Before that can happen, the FCC has to run the new rules through the Paperwork Reduction Act (PRA) process, a process which the Commission has also just cranked up with a Federal Register notice. If you have any PRA-related thoughts to offer, you’ve got until June 11, 2012 to lob them in to the Commission. After that, the Commission will bundle up all the comments it receives and ship them over to the Office of Management and Budget, along with a supporting statement explaining why it think the new rules are consistent with the PRA. (The rules will then go into effect 30 days after the FCC announces in the Federal Register that OMB has approved the rules. Check back here for updates on that score.)

By the way, according to the notice, PRA-related comments are supposed to address:

whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
the accuracy of the Commission's burden estimate;
ways to enhance the quality, utility, and clarity of the information collected;
ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and
ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

Wireless Bureau Sheds Light on Upcoming Tower Registration Regimen

Dan Kirkpatrick — Thu, 10 May 2012 14:06:59 -0500

Announcement of OMB approval expected soon

If you’re planning on building a new tower, or significantly modifying an existing tower, in the foreseeable future, listen up. The Commission’s Wireless Telecommunications Bureau has issued a public notice laying out the new registration procedures that have been adopted (but not yet implemented) to provide pre-registration notice-and-comment opportunities relative to environmental considerations. We have previously reported on the new procedures; the public notice puts a little more meat on the procedural bones we have already described.

Who needs to worry about this? You do, if you’re:

planning to build any new tower that would have to registered through the FCC’s Antenna Structure Registration (ASR) system. The only exceptions are for (a) towers to be built on sites for which some other federal agency has responsibility for environmental review or (b) cases in which an emergency waiver has been granted.

modifying an existing registered tower by (a) increasing its overall height by more than 10% or 20 feet, or (b) adding lighting to a previously unlit structure, or (c) modifying existing lighting from a more preferred configuration to a less preferred configuration. (Helpful tip: the “most preferred” configuration is no lights at all; the least preferred is red steady lights. Anything else falls in the middle.)

amending a pending application involving either of the foregoing situations and the amendment would (a) change the type of structure, or (b) change the structure’s coordinates, or (c) increase the overall height of the structure or (d) change from a more preferred to a less preferred lighting configuration or (e) an Environmental Assessment is required.

If you’re in one of those categories, here’s what the Bureau will expect you to do once the new process takes effect.

First, you’ll file a partially-completed Form 854 in the FCC’s ASR system. This will consist of information previously required on Form 854, plus tower lighting information and specification of the date on which the applicant wants the FCC to post the application on the Commission’s website for comments.

Once Form 854 has been filed, you’ll have to publish a notice (“in a local newspaper or by other means”). The Bureau isn’t specific about the precise content of the required public notice or what “other means” – besides a local paper – might be. But the purpose of the local notice appears to be to let folks know about the registration application and the opportunity to submit comments to the FCC about it. The local notice has got to be made on or before the date the applicant has designated in its application for posting of the application on the FCC’s website.

The comment period will be open for 30 days, during which time members of the public can ask the Commission for further environmental review.

If the FCC staff concludes that no additional environmental review is required, the applicant will then move on to Step Two of the process. In that step, the applicant will have to amend its application to reflect (a) the FAA’s study number and issue date (if those haven’t already been provided in the initial application), (b) the date of the local public notice, and (c) a certification that the proposed construction will have no significant environmental impact. According to the FCC’s public notice, that could happen “after approximately 40 days” – but the notice doesn’t say whether that means 40 days after the opening of the comment period or the close of the comment period or some other date.

But if, after considering the initial, partial Form 854 and any public comments that roll in the door, the FCC decides that more review is required, it will require the submission of an Environmental Assessment (assuming, of course, that the applicant hasn’t already filed such an Assessment on its own). It’s safe to say that that would extend the processing time considerably. If an Environmental Assessment is required, the FCC will first have to issue a Finding of No Significant Impact before the applicant can proceed to Step Two with the necessary amendment of its application.

Interestingly, it appears from the FCC’s public notice that the Commission doesn’t plan to directly notify applicants when their applications are ready for Step Two. According to the notice, “[a]pplicants will be able to determine which of their pending applications are ready for completion of Part 2 by logging into the ASR system, where these applications will be listed as Ready for Certification.”

The FCC’s public notice also lists some additional obligations relating to service-specific applications, and provides information about the opportunity for members of the public to file “Environmental Requests”. Such “Requests” will seek further FCC environmental review.

Obviously, the Wireless Bureau has been hard at work gearing up for the eventual implementation of the new environmental processes. The public notice lists a range of updates that have been made to Commission systems and forms as part of the process. And if you’re curious about how all this is going to work, the Commission will present a demonstration of the changes at 11:00 a.m. on May 21, 2012. You can attend in person at the FCC’s D.C. headquarters, or you can view it online. (Online viewers can get to the webcast by going to www.fcc.gov/live and clicking on the appropriate event link.)

The new registration process is not yet effective, but that could change any day now. The Office of Management and Budget has apparently signed off on the new regimen, so it’s presumably just a matter of time before the Commission makes it official. Check back here for updates.

USF/ICC Update: Changes in Carrier Reporting Requirements Effective May 8, 2012

FHH Law — Tue, 08 May 2012 05:41:34 -0500

In its sprawling Report and Order and Further Notice of Proposed Rulemaking on the Universal Service Fund (USF) and Intercarrier Compensation, released last November, the Commission adopted (among a lot of other things) a number of changes to the various reporting requirements. Those requirements affected certain carriers, including competitive eligible telecommunications carriers (ETCs) and incumbent local exchange carriers. (Last December we described how many, but not all, of the extensive changes would affect wireless providers.)

Because many of the modified reporting requirements involved “information collections” subject to the Paperwork Reduction Act, they could not take effect right away. Rather, they had to be reviewed and approved by the Office of Management and Budget. That process has now been completed, according to a notice published in the Federal Register. As a result, a number of the rule changes adopted last fall have now become effective or applicable as of May 8, 2012.

The rules that have become effective are: Sections 54.312(b)(3); 54.313(b); 54.313(h); 54.314; and 54.320(b). The rules that have become applicable are: Sections 54.305(f); 54.307(b) and (c); and 54.313 (a)(1)-(a)(6).

Additionally, the Federal Register notice provides official notification to ETCs and other unspecified stakeholders that information required to be filed pursuant to Section 54.313(a)(2)-(6) and (h) must be filed by July 2, 2012. Section 54.313 sets out the annual reporting requirements for high cost recipients.

Phase I Mobility Fund Reverse Auction Rules Set

Donald Evans — Mon, 07 May 2012 14:15:58 -0500

$300 million to be available for areas with poor broadband access

Following up on the landmark USF Order last fall in which it first adopted a plan to distribute Universal Service Fund money for broadband build-outs, the FCC has released a Public Notice setting out the basic ground rules for the “reverse auction” by which the money will be distributed. The Notice fills in some important gaps in how the whole process is supposed to work.

As we have previously reported, the FCC is proceeding for the first time with an unusual reverse auction under which rights will be determined by the party which bids the lowest amount for the area in question. In this case, carriers will be bidding to provide service to relatively high cost parts of the country provided they receive certain subsidies. The company asking for the lowest subsidy to do the job will get the money and the attendant service obligation. Many of the key features of this auction remain subject to petitions for reconsideration, but the Wireless Bureau is nevertheless plunging forward to set the ground rules on the assumption that the auction will proceed largely as laid out in last fall’s USF Order.

In addition to the usual provisos, warnings, disclaimers, and notices that accompany every FCC auction, the Public Notice alerts us to the following:

The short form deadline for applications is July 11, 2012. This is curiously far in advance of the scheduled September 27 auction date.
The auction will be a single round, single bid, sealed auction. The bid you make on September 27 is your only bid and it cannot be withdrawn once your bid is final.
Bidders (other than Indian tribes) must have their high cost ETC designations in hand when they file their short forms. It is not good enough to have a pending application on that date.
ETCs which only have Lifeline authority are not eligible to participate.
The FCC has now identified as best it can the areas that are underserved and therefore eligible for build-out funds. Bidders will bid on census tracts identified by the FCC. The winning bidder will be the one which bids the lowest amount to serve the road-miles within that census block. A winner must commit to serving at least 75% of the road-miles. This simplifies the determination of the winner since bidders are bidding against each other for the same defined areas.
The FCC will begin awarding money starting with the lowest bids per census block and keep going till it is out of the $300 million.
Winning bidders must submit their entire network design, construction schedule and budget when they submit the “long form” applications ten business days after the winners are announced. Winning bidders will have a very busy couple of weeks to pull that information together.
Winning bidders must also at the same time put up a letter of credit from a bank guaranteeing their performance of their commitments. Again, this is not much time to get such a letter together. To further complicate matters, the winning bidder must submit a legal opinion indicating that the letter of credit is free from bankruptcy claims if the bidder goes belly up without meeting its commitments. The high cost of obtaining what is effectively insurance will have to be built into the bid amount.
A winning bidder which fails to qualify when it files its long form application will be subject to a penalty equal to 5% of its winning bid.
Finally, winning bidders must also certify that they can offer service in the areas they have won without the need for further federal funding. This effectively disqualifies them from the Phase II Mobility Funding that is supposed to support service to high cost areas. This seemingly counterproductive element of the Commission’s plan is currently under reconsideration.

While the prospect of free government money is usually attractive, the significant strings which the FCC has attached to this process make the decision to bid on the awards a difficult one. Potential bidders should consider all of the risks as well as the rewards of participating in this program.

TV Channel-Sharing Ground Rules Start to Emerge

Christine E. Goepp — Sun, 06 May 2012 17:09:24 -0500

Commission adopts skeletal preliminary rules for sharing, but leaves plenty of important details to be worked out in future proceedings

And so it begins.

The Commission has adopted the first minimal rules paving the way for the repacking of the TV broadcast spectrum. The new rules are, at most, preliminary guide markers. In that respect they’re much like the seemingly inconsequential surveyor’s stakes that quietly appear as an early harbinger of the heavy-duty construction teams that will eventually re-shape the idyllic pastureland into a ten-lane highway. Like those surveyor’s stakes, they mark the beginning of a process that will likely lead to dramatic changes in the landscape.

As everyone by now knows, the Commission (with Congress’s clear support) is intent upon repurposing a substantial chunk of the spectrum currently used for over-the-air television broadcasting. The goal is to free up UHF spectrum for broadband use. The full technical details of how the FCC might hope to accomplish that have not been revealed (and may not even have been fully formulated as yet). But you’ve got to start somewhere, so the Commission has now taken its first step.

In its recent Report and Order (Channel Sharing Order), the Commission has opened the door – at least for the purposes of the incentive auctions that Congress has authorized – to permit channel-sharing by full-power and Class A TV licensees. (The Commission will consider channel sharing in non-auction contexts in a later rulemaking.) The channel-sharing concept, under which multiple TV licensees would share a single six MHz channel, arose a couple of years ago. It was also an integral component of the spectrum portion of the “Middle Class Tax Relief and Job Creation Act” (which the FCC refers to as the “Spectrum Act”) the Congress enacted last February.

According to the new rules, when channel-sharing eventually becomes a reality, it will be subject to the following general considerations:

Eligibility – Channel-sharing will be available only to full-power and Class A TV licensees (commercial and noncommercial) who participate in the incentive auction process by which the Commission hopes to coax TV stations off their current channels. Of course, what these TV licensees are eligible for isn’t entirely clear – since, as noted below, multiple key details of the channel sharing procedure are left to be determined in future proceedings. (Note: Since the purpose of the auction is to facilitate the repacking of the TV band, and since LPTV stations, being “secondary” licensees, need not be protected in the repacking process, LPTV licensees will not be eligible to participate in the incentive auction and thus are not eligible for channel-sharing under the new rules.)

Voluntariness – Sharing will be entirely voluntary. The Channel Sharing Order seems to go to great lengths to assure broadcasters that whether to share, and with whom to share, will be questions left to each licensee. No arranged marriages here – the FCC says the new rules will not “authorize the Commission to choose channel sharing partners”. But hold on there. Elsewhere in the order the Commission says that “the sharing parties must have a say in selecting their sharing partners” (those are our emphases, not the Commission’s). Isn’t there a difference between (a) having total control over who your partner is going to be and (b) “having a say” in that decision? Does the Commission’s choice of words mean that the agency could veto a sharing arrangement because the FCC doesn’t think the pairing is suitable for some reason? It’s hard to say, but the use of the expression “must have a say” does not discourage such thinking.

Minimum capacity – The manner in which a given six MHz channel would be divided by sharing licensees will be left to the licensees, provided that each sharing station retains enough capacity to operate at least one standard definition programming stream at all times.

Single facility/separate licensing – While stations sharing a single channel will utilize a single common transmission facility, each will continue to be licensed separately. Each sharing licensee will keep its original call sign, retain all rights of an FCC licensee, and remain subject to the full panoply of FCC rules, policies, and obligations. For example, each station will still have to comply with the full range of rules governing children’s programming, political broadcasting, minimum operating hours, main studio, and EAS. Sharing licensees will not be responsible for each others’ programming content or rule violations, although exactly how blame will be determined when technical violations occur has been left to (you guessed it) a future proceeding.

Must carry – The Commission asserts that the new sharing rules will have no effect on broadcaster’s current cable and satellite carriage rights. Sort of. Specifically, each separately licensed station will be entitled to the same carriage rights at the shared location as it would have at that same location if it were not sharing, and only so long as it meets all of the usual technical requirements for carriage from that location. The same would be true for the “local-into-local” “carry one, carry all” requirement for satellite broadcast signal carriage.

But even if a sharing station is entitled to the carriage rights which it would get as a standalone station at the shared location, the fact is that as many as half of all sharing stations will likely be relocating their facilities as part of the sharing arrangement. Such a relocation could, for example, alter the moving station’s service area and, thus, the station’s ability to deliver the requisite “good quality signal” to all cable and satellite providers that it reached from its original site. And, in the case of a relocating Class A station, the move could take it more than 35 miles away from cable headends (i.e., outside the limit within which Class A stations are entitled to carriage). And don’t go crying to the Commission if your voluntary channel sharing arrangement results in the loss of must-carry rights: “[W]e expect that stations will take into account technical obligations that could affect their continuing carriage rights when designing their channel sharing arrangements.”

NCE-Commercial sharing – Commercial and NCE stations are permitted to share, so long as NCE licensees structure their arrangement to ensure continued compliance with NCE rules to maintain their NCE status. Should an NCE licensees operating on a reserved channel opt to move to a non-reserved channel as part of a channel sharing arrangement, the NCE station must continue to operate on an NCE basis. That, of course, gives rise to a follow-up question: what happens if a commercial station elects to share a channel that has been reserved for NCE use? Answer: The Commission will address that conundrum in a future proceeding.

Also relegated to a later rulemaking is the significant matter of how Class A and full power station sharing will work out in practice. For example, the “single transmission facility” requirement may mean that a sharing Class A station could benefit considerably by operating at greater power (with a considerably expanded service area) than currently allowed under the Class A service rules. But would the converse be true? That is, would a full power station sharing the facility of a Class A station have to operate at a reduced power and service area? That would appear to create a serious disincentive to such arrangements.

The prospect of multiple “future proceedings” looms large in other areas throughout the Channel Sharing Order. In addition to the “future proceedings” mentioned above, the Commission alludes to additional “future proceedings” that would address: issues involving technical requirements (including RF compliance) for sharing stations; procedures “through which stations may undertake their voluntary proposed channel sharing arrangements”; channel-sharing in non-auction contexts; the timing of the auction process; and whether to allow channel sharing to result in service losses (and whether such potential losses should be taken into account by the Commission “when considering the proposed sharing arrangement”. Whether the Commission intends to address all of these loose ends in a single wide-ranging proceeding or a series of more narrowly-targeted proceedings is not clear.

According to the FCC, its goal in adopting these initial channel-sharing rules is to “provide greater certainty to stations that may wish to consider channel sharing”. At least some licensees, however, will need answers on the issues left outstanding before they will know whether channel sharing is a choice they want to make.

One final observation. The concept of channel-sharing necessarily means that each sharing licensee will have less than six MHz of spectrum in which to operate. But the use of a full six MHz channel is

necessary to provide viewers and consumers the full benefits of digital television made possible by the DTV Standard, including high definition television (“HDTV”), standard definition television, and other digital services. The DTV Standard was premised on the use of 6 MHz channels. To specify a different channel size . . . would not promote [the FCC’s] goals in adopting the DTV Standard.

That’s not us talking; that’s what the Commission said back in 1997, when it rejected arguments for digital TV channels of less than six MHz. In doing so, the Commission expressed particular concern about “the longstanding expectations of the parties, on which they have based the technology and established their plans”. In its efforts to promote channel-sharing, the Commission seems to be singularly unconcerned with how that might affect the promotion of free over-the-air HDTV.

The new rules, such as they are, will become effective 30 days after the Channel Sharing Order is published in the Federal Register. Check back here at CommLawBlog for updates.

EAS Update: On Second Thought, Text-to-Speech Conversion IS Permitted, Effective May 7, 2012

FHH Law — Sun, 06 May 2012 15:37:55 -0500

Commission reverses decision released in January, 2012, but still defers further consideration of TTS technology

Back in January the Commission released its Fifth Report and Order (5th R&O) in its long-running effort to modernize the Emergency Alert System. Under the new rules (many of which became effective on April 23, 2012), EAS participants are required to be able to convert CAP-formatted EAS messages into messages that comply with the EAS Protocol requirements, following the procedures for such conversion as set forth in the EAS-CAP Industry Group (ECIG) Implementation Guide.

One notable exception, though, involved the Guide’s provisions concerning text-to-speech (TTS) conversion. The Commission was not confident in the accuracy and reliability of current TTS technology. Additionally, the FCC figured that it might be preferable to require TTS conversion software to be utilized by the originators of EAS messages, rather than by EAS participants – the goal being to minimize the risk of “differing, and thus confusing” audio messages that might otherwise result.

Bottom line in January: the FCC mandated that TTS conversion would not be permitted, notwithstanding the ECIG Implementation Guide.

That decision was apparently news – and disappointing news, at that – to the FCC’s EAS regulatory partner, the Federal Emergency Management Agency (FEMA). FEMA fired off a petition for reconsideration, pointing out that, by prohibiting TTS conversion by EAS participants, the FCC was discouraging development of TTS technology. What’s worse, the lack of TTS conversion capability could “possibly disrupt dissemination of National Weather Service alerts, delay retrieval of referenced audio files in alerts, and impact the ability of jurisdictions with limited resources, or those with certain, already implemented CAP alerting capabilities, to issue CAP-formatted alerts.”

FEMA’s position was seconded by a number of state and local emergency management agencies, as well as the Commission’s own Communications Security, Reliability and Interoperability Council.

That was enough for the Commission. It has revised its rules to permit, but not require, EAS participants to follow the ECIG Implementation Guide with respect to TTS. In so doing, the FCC made clear that it was still not prepared to embrace the ECIG’s adoption of TTS software configured in EAS equipment to generate the audio portion of an EAS message; rather, consideration of that particular item has been deferred.

With the publication of the rule change in the Federal Register, that change takes effect May 7, 2012.

2012 Reg Fees Proposed: Up, Up and Away!

Harry Cole — Fri, 04 May 2012 12:58:36 -0500

The FCC has performed that annual rite of spring – its announcement of proposed regulatory fees for 2012. These are the reg fees that, for the vast majority of Commission regulatees, will be due and payable by a to-be-announced date (probably sometime in August or September). As with most ritual activities, there are no real surprises here: the rates are, with very few exceptions, proposed to go up.

In general, the Commission figures that broadcast-related reg fees should get bumped up between 4-7% or thereabouts, depending on the type of facility in question and the market in which it’s located. There are some exceptions, though. For example, commercial VHF TV stations in Markets 51-100 would enjoy a nearly 9% reduction (amounting to $2,205) compared to last year’s fee, if the FCC’s proposal holds. And fees for UHF stations in Markets 11-25 would drop $1,000 (about 3%) from last year’s levels.

We’re attaching a grid providing the proposed 2012 fees along with some comparative information showing the changes from the fees actually imposed last year. (Red entries reflect 2012 fees that would go up over last year’s fees; the small handful of green entries reflect fees that would go down this year.)

As always, the Commission is giving everybody a chance to comment on the proposed fees. If you’ve got something to say about the proposals, you’ve got until May 31, 2012 to file comment with the Commission. Reply comments may be filed until June 7.

Over and above the fees themselves, this year’s Notice of Proposed Rulemaking (NPRM) contains a couple of elements of interest.

First, as the Commission hinted last year, this year’s fee calculations are based on 2010 U.S. Census data. That’s particularly important for AM and FM stations, since their fees vary based on the population each station serves. The 2010 Census data hadn’t been fully firmed up and finalized as of last year, so the Commission opted to use 2000 data to calculate the populations served for the 2011 fees. But now the 2010 data are set, so they’re the ones the Commission has used for this year’s fees. Anybody who disagrees with this should feel free to file comments letting the FCC know.

And as was the case last year, with respect to Class A, LPTV and TV Translator stations

a fee will be assessed for each facility operating either in an analog or digital mode. In instances in which a licensee is simulcasting in both analog and digital modes, a single regulatory fee will be assessed for the analog facility and its corresponding digital component.

This approach is likely to change as “greater number of facilities convert to digital mode”. Still, for the time being – and, apparently, at least for this year – it looks like the policy of exacting only one reg fee per Class A, LPTV and TV Translator license will stay in place.

The Commission has proposed an interesting new procedural wrinkle. It’s planning on requiring that any request for a refund, waiver, fee reduction or deferment of any reg fee (or apparently, any application fee) be submitted electronically, rather than the old-fashion hard copy way. This change is part of an agency effort to improve the way it provides public information about the filing and disposition of waiver requests. The NPRM doesn’t go into any detail about the mechanics of any particular electronic filing system the Commission may have in mind. Rather, the NPRM just asks for comments on the general concept of mandatory electronic filing of waiver requests and the like.

Again, the NPRM – and the fees described in it – are still only proposals. We won’t know the final fees until sometime this summer, although experience suggests that the final fees aren’t likely to stray too far from the initial proposals.

Check back here at CommLawBlog.com for updates.

Reminder: Narrowband Transition Deadline Approaching

Robert M. Gurss — Tue, 01 May 2012 09:55:25 -0500

If you don’t think you can meet the January 1, 2013 deadline, NOW is the time to ask for a waiver.

Do you operate a commercial or public safety private land mobile radio system in the VHF (150-170 MHz) or UHF (450-470 MHz) bands? If so, you must convert your systems to “narrowband” operation by January 1, 2013. If you don’t, you face the possibility of interference from other users, FCC fines, or losing your license. If you can’t make the switch by the deadline, now is the time to seek a waiver from the FCC to ask for an extension

Licensees have been on notice for about ten years of the impending narrowbanding deadline. Most radios purchased since the late 1990s already have narrowband capability (i.e., they operate on 12.5 kHz channels or equivalent efficiency) and only need to be reprogrammed. However, most older radios are destined for the trash heap.

The FCC will entertain requests for temporary waivers of the deadline. Last year, the FCC spelled out what it wants to see in a waiver request, including reasons why the licensee cannot meet the deadline, its funding requirements, a description of what steps have been taken so far to comply, a schedule of work that must still be completed, and evidence that the delay will not harm other licensees in the region.

Until last week, land mobile radio licensees in the so-called “T-Band” (470-512 MHz) were also subject to the narrowband deadline (broadcasting industry readers may recognize the band as the home of TV channels 14-20, which is shared with land mobile radio in 11 major metropolitan areas). However, since Congress has now mandated that spectrum occupied by public safety licenses in the T-Band be auctioned within nine years, the FCC relieved all licensees in that band of any narrowbanding obligations. On the flip side, the FCC also imposed a freeze on applications for new T-Band systems and certain modifications to existing systems. In a nutshell, the freeze bars any modifications that would expand the service area of a T-band system; it does not preclude adding units to existing systems or making other changes that do not expand the system’s service area.

Some, Maybe All, Remaining Effective Dates in Lifeline Reform Set

FHH Law — Tue, 01 May 2012 06:38:38 -0500

Last month we reported that effective dates for some, but not all, of the rules revised as part of the Commission’s reform of its Lifeline program had been set. It looks like the effective dates of the rest have now also been set, although the Commission’s own Federal Register notices concerning those dates leave at least some room for doubt.

The Lifeline reforms were adopted back in February. In a Federal Register notice published in March, the Commission announced that Sections 54.411, 54.412, 54.413 and 54.414 were to take effect April 1, 2012 and Section 54.409 will take effect June 1. No problem there. But it then said that Sections 54.202(a), 54.401(c), 54.403, 54.407, 54.410, 54.416, 54.417, 54.420 and 54.222 wouldn’t kick in until after the Office of Management and Budget (OMB) had given them the Paperwork Reduction Act once-over.

According to the latest Federal Register notice, OMB has completed its review and given its thumbs up. So the FCC has announced that Sections 54.202(a), 54.401(d), 54.403, 54.405(c), 54.407, 54.416, 54.417, 54.420(b), and 54.422 have become effective as of May 1, 2012, while Section 54.410(a)-(f) will take effect June 1, 2012.

Careful readers will note a couple of minor discrepancies between the March notice and the most recent. Where the March notice referred to Section 54.401(c), the April notice refers to Section 54.401(d). Also, the April notice indicates that Section 405(c) is among the sections taking effect on May 1. But that particular section wasn’t among those listed in the March notice. And, in the most recent notice, the Commission mentions, pretty much in passing and without explanation, that it has also removed certain provisions (in particular, the temporary address confirmation and recertification requirements set forth in Section 54.410(g), the chunk of Section 54.405(e)(4) relating to temporary address de-enrollment, and the biennial audit requirements of Section 54.420(a)). It's not clear what that means. The rules have, after all, been formally adopted by the Commission and are therefore technically in the books, but if OMB hasn't signed off on them (which appears to be the case), they can't become effective. So they'll presumably just be dead wood in the rule book, at least for the time being.

These discrepancies, though, may be relatively minor, particularly given the enormity of the changes the Commission is making to the overall Lifeline program. Look for the Commission to tie up any loose ends eventually.

One final observation. While the standard OMB approval extends for three years, this OMB approval is for a paltry six months. That means the FCC will be back knocking on OMB's door before you know it. Interestingly, the FCC asked OMB to act on this particular request on an emergency basis. What was the emergency? According to the FCC: “The Commission has set a budget target to eliminate $200 million in waste in 2012, which is dependent on certain rules going into effect as soon as possible.” Ah, a self-created emergency. We can't wait to see what they come up with in six months.

TV Public Files Moving Online

Matt McCormick — Mon, 30 Apr 2012 20:11:54 -0500

FCC to host all TV public files in the cloud, once it figures out how to host all TV public files in the cloud

Coming soon to an Internet near you (well, maybe not that soon)!!! The public files of every U.S. TV station, commercial and noncommercial, all hosted on a cloud-based system that the Commission promises to develop and manage. And radio and MVPD operators can probably expect that they, too, will eventually be required to make their public files available on the same system. In the latest possible culmination of a proceeding that has already lasted more than a decade, the FCC, turning a deaf ear to most of the objections of the broadcast industry, has directed television licensees to upload big chunks of their public files to a yet-to-be revealed web portal the FCC will host.

“Possible” culmination? Well, yes. Those familiar with the recent history of the public file requirement will recall that, in 2007, the Commission mandated that TV public files be made available online. But the Commission never jumped through the hoops that would have been necessary to translate that mandate into regulatory reality. Will this latest effort produce different results? It’s hard to say. The Commission sure seems serious about it, but there are a number of practical problems that could gum up the works, at least in the short term.

For background on the move to make public files Internet-accessible, check out this post from last October. The rules which the Commission has now adopted vary somewhat from the proposal described there, but the core requirements are pretty much the same. In short, TV public files are moving to the Internet (although some vestiges of the old-fashioned paper filing will remain.)

The vast majority of existing public files for TV stations will have to be uploaded to an FCC-managed website. Each licensee will be responsible for posting: political advertising materials (more on that below); quarterly issues/programs lists; annual EEO Public File Reports; time brokerage agreements; joint sales agreements; must-carry or retransmission consent elections; children’s televisions commercial limits records; citizen agreements; donor lists for noncommercial educational stations; local notice announcements; documentation of continuing eligibility for Class A stations; and materials related to FCC investigations.

Significantly, the requirement to upload these documents, other than the political file materials, is not just on a “going forward” basis. Stations will be required, for instance, to upload all quarterly issues/programs lists going back to their last renewal. Basically, if it’s in your public file as of the effective date of the new rules (and it’s not political or a communication from a member of the public), it will need to be included in the online version.

There is some limited good news on the material-to-be-uploaded front.

First, licensees will not be required to upload documents already available on the FCC website – e.g., licenses and construction permits, applications, contour maps, ownership reports, EEO Program Reports and Mid-Term Reports, children’s television reports, FCC letters of inquiry (as well as other “investigative information requests” from the Commission), and “The Public and Broadcasting” manual. As currently envisioned, the Commission’s system will automatically link such items to the appropriate public file.

Second, letters and emails from the public will not need to be uploaded to the online public file. Instead, stations will continue to keep them in a publicly available correspondence file at the main studio. That includes complaints from the public, regardless of their lack of merit. (And even more good news on this front: the Commission also affirmed that comments left by the public on social media websites, such as Facebook, do not need to be maintained in any file, online or at the station.)

Third, shared services agreements will not have to be made available in any public file. Ditto for written sponsorship identification disclosures. The Commission’s 2011 proposal envisioned broadening the contents of the public file to include such materials, but the Commission has apparently thought better of those ideas.

So much for the broad strokes. Let’s take a look at some of the details.

Political advertising materials – Under the original 2007 proposal, stations would not have been required to make their political files available online. Bad news there: the Commission (Commissioner McDowell dissenting on this point) has decided stations indeed will need to upload political file materials to their online public files.

To cushion this particular blow, though, stations will have to do so only on a “going forward” basis. There will be no need to upload the reams of pages generated prior to the date when the new rules kick in, although stations will still be required to hold onto those old paper files and make them available for inspection at the station.

The majority of stations won’t have to start posting their political file documents until July 1, 2014. But the Big Guys – i.e., any station in a top-50 market affiliated with one of the four biggest commercial networks (ABC, NBC, CBS and Fox) – must comply as soon as the rules go into effect.

Stations will have to immediately post any initial requests or final orders from candidates for specific schedules, including the amounts and classes of time bought and the rates charged. Station will not be required to post general requests by candidates regarding availabilities and/or rates for a general array of time, or a record of the back-and-forth discussions with the candidates after a time request is made. In addition to posting the details of any final, mutually agreed upon time order, stations must provide follow-up reconciliation information about the order, such as the times the spots actually aired, information regarding “make goods” for preempted time and rebates or credits issued.

The FCC acknowledges that reconciliation information typically doesn’t get placed in the public file until after the final billing has been sent out, depending on the licensee’s business practices. Instead, stations make personnel available to answer questions about that data. Written documentation of the final reconciliation is posted at a later date consistent with the station’s business practices. That approach is expressly permitted in the online public file era.

Of course, a lot of stuff regarding a lot of candidates goes into a political file each election cycle. To assist in keeping the file orderly, the FCC is planning to include in its online system organizational features, like subfolders for candidates and issue ads (and the ability for stations to create their own additional subfolders and subcategories).

Acknowledging the fallibility of its own still-to-be-designed-and-tested-and-implemented online system, the Commission also imposes an additional political file duty on licensees. Licensees will have to maintain their own local back-up copies of their political files (but not of the remainder of their online public files) to ensure that, in the event the FCC’s system goes down, they still can make information available to candidates as soon as possible. On this point the Commission reassuringly coos that it does “not expect the requirement to provide back-up access to the political file during any times of outages to be overly burdensome.”

Of course, the Commission may be correct that the actual provision of back-up access may not be a problem. But maintaining a set of electronic back-up files that will enable you to provide that access? That’s another story. The FCC suggests that stations might want to make “mirror copies” of what the station has uploaded to the FCC’s site. Sounds simple. According to the Commission, here’s what would be involved:

[S]tations will need to ensure that they retain any political file records that have not been uploaded or were uploaded after their last download of a mirror copy of their online public file. This means that if a station decides to download a mirror copy of their online public file on a weekly basis, it will need to maintain at the station, in paper or electronic form, any documents that have not been uploaded or that it uploaded to the online political file after its last weekly download. If a station chooses to download a mirror copy of their online public file on a monthly basis, it will need to maintain at the station any documents that have not been uploaded or that it uploaded to the online political file after its last monthly download.

Got that? And if you don’t download any mirror copies, well, then you’ll have to maintain at the station copies of all documents required to be in your online political file.

While the FCC emphasizes that such station-maintained back-up copies will have to be made available only in the event that the Commission’s system itself crashes, the Commission seems to ignore that making those copies available is only part of the burden. Having those back-up copies on hand and ready at all times (since it’s impossible to reliably predict exactly when the FCC’s system will crash) – well, there’s the rub.

Materials about investigation or complaints – Stations currently are required to retain in the public file “material having a substantial bearing on a matter which is the subject of an FCC investigation or complaint to the FCC” of which the subject station is aware. That obligation will continue in the online era. While the FCC will automatically post in each station’s public file any document (e.g., letter of inquiry, order terminating an investigation, notice of apparent liability) from the FCC regarding investigation, the station will be obligated to upload its responses to Commission inquiries (unless the FCC directs to the contrary in any particular case). Stations will still be able to request confidential treatment of particular information; materials subject to a confidentiality request may be placed online with the confidential material redacted.

Complaints a station receives that are not the subject of an FCC letter of inquiry or other investigative request are not required to be posted in the online public file – but heads up! Such complaints are required to be included in the station’s hard-copy, locally-available correspondence file (unless the FCC specifies otherwise).

New obligations – As a general matter, the FCC’s new rules don’t require any new categories of information to be kept in the public file. BUT the rules do require that the online public file include the station’s main studio address and telephone number and the email address of a person designated to handle questions about the public file. Also, stations that have websites will be required to: (a) place a link to the online public file on their home page; and (b) include on their home page contact information for a station representative who can “assist any person with disabilities with issues related to the content of the public files.”

Document formats – When the time comes to upload materials, what exactly will you be uploading? The Commission expects stations to provide documents in their “native formats”, to the extent “technically feasible”. That means that the FCC would prefer to have the “original” electronic versions of documents, rather than PDF versions produced by scanning paper copies (although the Commission acknowledges that scanning may be required for older documents). What if you’ve got electronic copies in both PDF and, say, Microsoft Word (i.e., “.doc”)? It appears that either will do, as long as the uploaded version is text-searchable. Note, though, that stations will not be required either “to create or preserve” metadata. That means that you can, and probably should, “scrub” any documents to be uploaded to the online public file.

Timing – So when does all this falderal begin? Stations will be required to begin using the online filing system as of the effective date of the new rules. That date will be 30 days after the FCC announces, in the Federal Register, that the Office of Management and Budget has approved the new data collection requirements (as required by the Paperwork Reduction Act). Check back here for updates on that score.

Once the effective date arrives, all full-power and Class A TV licensees will have to upload to the online file all newly-created documents required to be placed in the public file except for letters/emails from the public and, in some cases, political file materials. Those licensees will have six months in which to upload all pre-existing public file documents to the online system (again, with the exception of communications from the public and, in all cases, political materials).

Who has to upload political materials and when? Nobody has to upload existing political file materials – they’ve been exempted from the online file requirement. The first folks to feel the brunt of the online rule as far as political materials go are the Big Guys we mentioned above (stations (a) affiliated with one of the top four commercial networks and (b) located in a Top 50 market). If you’re one of them, you have to start uploading your newly-created political documents as of the effective date of the rules. Everybody else can relax until July 1, 2014 on this score.

Once the system is up and running, broadcasters will be expected to actively manage their online public files. The Commission is not specifically requiring stations to take down each item at the end of its retention period, but notes that stations should not allow the public files to become so overgrown with out-of-date documents that it is difficult to access relevant materials

Development schedule for the online system – The FCC says it anticipates “being able to design an online public file that is highly available, scalable, cloud-based and eliminates any user wait times associated with processing documents after upload.” You will forgive our skepticism, but we struggled through the implementation of the new Ownership Report (Form 323). Form 323 was filed through CDBS, an established, tried-and-sometimes-true system with which the FCC had years of experience. As even the Commission admits in a masterpiece of understatement, the revised Form 323 implemented in 2010 caused “problems”. (We in the Real World can attest to the truth of that admission.)

But if the Commission couldn’t get the Form 323 filing to work in a familiar infrastructure environment, is it realistic to think that the Commission will fare better in the terra incognita of the cloud, with a system the Commission seems to be making up as it goes along? The Commission claims the public file system will work smoothly. We’ll see.

Will all of this lead to a new era of transparency, efficiency and regulatory bliss? Maybe, maybe not. Members of the general public (i.e., almost everybody except wayward students working on research and political campaign time buyers) have historically ignored the long-time availability of in-station public files. It’s hard to imagine that those same members will suddenly flock in droves to online public files.

Of course, in adopting the new rules, the Commission has made clear that the public file – online or in-station – is not really just for the public. Rather, it’s also a “tool for the larger media policy community.” The “larger media policy community”? Who might that be? “Public advocacy groups, journalists, and researchers”, that’s who. According to the Commission, these members of the “larger media policy community” act “as surrogates for the viewing public in evaluating and reporting on broadcast stations’ performance”.

Why the viewing public might need “surrogates” is not clear. Certainly many members of the “viewing public” would likely be surprised to hear that the FCC thinks that the public needs any help in “evaluating” broadcasters’ performance. Presumably, though, the FCC figures that it knows what’s best for the viewing public.

Controversy Flares over Interference to Unlicensed Devices

Mitchell Lazarus — Sun, 29 Apr 2012 10:28:54 -0500

Unlicensed device users at 902-928 MHz challenge LMS provider Progeny’s test results.

We reported back in February about a licensed service provider being required to demonstrate that its operation would not cause unacceptable interference to unlicensed devices. This is unusual. The FCC rules ordinarily require an unlicensed device to accept any and all interference from any source. But certain technologies used in the licensed Location and Monitoring Service (LMS) at 902-928 MHz are uniquely subject to a reversal of the usual priority. Those LMS licensees must demonstrate through actual field tests that their systems do not interfere with unlicensed devices.

When the FCC recently granted a technical waiver to LMS provider Progeny, it specifically required field tests to show that the waivered system does not cause unacceptable levels of interference to unlicensed devices in the same band. Among the thousands of unlicensed applications in the band, the FCC mentioned “smart grid” applications, including remote meter reading and utility load management, as well as cordless telephones and wireless local area networks. Other unlicensed uses of the band include wireless Internet access, ZigBee industrial controls, and a vast host of wireless consumer devices.

Progeny has since filed its test report. But commercial users of unlicensed devices have come forward to criticize the study. (Consumer devices, such as cordless phones, may have a similar potential for interference, but so far consumers and their advocates have remained silent.) Progeny, the commercial users say, used too few unlicensed devices, the devices Progeny used were non-representative, and the conditions used in the testing were artificially rigged to understate interference. Samples of such critical comments may be read here, here, and here. Progeny, needless to say, disagrees with its critics. (Interested readers may find the entire FCC docket by searching for Docket No. 11-49 at the FCC’s ECFS webpage.)

Although the comment cycle on Progeny’s test report has officially closed, the FCC is accepting ex parte filings. But not for long; we expect a decision soon. Those interested in either challenging or supporting Progeny’s test results should do so promptly.

Comment Deadlines Set in Level Probing Radar Proceeding

FHH Law — Sun, 29 Apr 2012 09:27:40 -0500

FCC seeks comment on unlicensed operation in three bands.

The FCC’s Further Notice of Proposed Rulemaking on outdoor and in-tank radars in the 5.925-7.250, 24.05-29, and 75-85 GHz bands has now appeared in the Federal Register. As regular readers realize, that establishes the official deadlines for anyone wishing to chip in their two cents’ worth. Comments are due on May 30, 2012 and reply comments on June 29.

9th Circuit Opens Noncoms to Political Spots

Dan Kirkpatrick — Fri, 27 Apr 2012 14:12:21 -0500

Court tosses long-time ban on political/issue-oriented spots in NCE band; Prohibition against standard “commercials” left in place.

Just as the political advertising season is about to shift into overdrive, the U.S. Court of Appeals for the Ninth Circuit has opened the competition for candidates’ cash to a universe of broadcasters previously excluded from that potential revenue stream. According to the court, the longstanding prohibition against the sale of paid political advertising by noncommercial educational broadcast stations – a/k/a “NCE” or “public” broadcasters – is unconstitutional.

Since the earliest days of broadcasting, the Communications Act has prohibited noncommercial stations from broadcasting “advertising”. The Act currently defines “advertising” in this context to include any broadcast content, aired in exchange for consideration of any kind, that either:

promotes some for-profit activity; or
expresses the views of any person with respect to any matter of public importance or interest; or
supports or opposes any political candidate.

(Yes, yes, we know that most, if not all, NCE stations do broadcast items that look a lot like standard ads. Those are technically referred to as “enhanced underwriting announcements”. They are theoretically subject to considerably greater constraints that normal “ads” – and the FCC does occasionally fine stations for exceeding the permissible limits.)

The theory underlying the ban on ads is clear (if not entirely convincing to many): if public stations were allowed to accept advertising, so the thinking goes, they’d be inclined to replace niche educational programming with programming designed to attract a much broader audience, or maybe they’d feel pressure to alter the content of their programming to please their advertisers – the goal, in either event, being to attract more advertising dollars. (Note: whether or not that theory is valid is far from clear, but it’s the theory that Congress relied on.)

So how did much of the ban just get tossed?

The story starts a decade ago. In 2002, the FCC fined a San Francisco public station, KMTP-TV, $10,000 for broadcasting numerous prohibited advertisements. KMTP-TV paid the fine, but then sued in federal District Court in California for reimbursement. Its claim: all of the advertising prohibitions are unconstitutional restrictions on the station’s speech. The District Court upheld the prohibitions on advertising, and KMTP-TV appealed to the Ninth Circuit, which released its decision earlier this month.

The Circuit agreed with the FCC that Congress does have a substantial interest in supporting the types of “high quality educational” programming found on NCE stations. (The Court does not address the obvious question of how the term “high quality” programming is defined or who is defining it.) And the Court was also on board with the government’s claim that Congress had enough evidence supporting its general theory that the goals of noncommercial broadcasting would be undermined if advertising were permitted. (That’s the theory that NCE stations would (a) abandon niche educational programming in favor of more mass-market programming and (b) alter the content of their programming to attract advertisers.) To be sure, the evidence wasn’t particularly empirical and much of it dated back to 1981 and earlier – but the Court reasoned that Congress’s judgment is entitled to substantial deference.

Accordingly, the Court upheld the ban on regular advertising.

Political and issue advertising, however, were another story.

In the Court’s words,

neither logic nor evidence supports the notion that public issue and political advertisers are likely to encourage public broadcast stations to dilute the kind of noncommercial programming whose maintenance is the substantial interest that would support the advertising bans.

To illustrate this, the Court focused on two types of programming – public affairs and children’s/family programming – touted by the government as the types of NCE programming that Congress intended to protect.

As to children’s programming, the Court concluded that allowing political/issue advertising would have minimal effect. That’s because most viewers of such programming (i.e., children) can’t vote, so (according to the Circuit) NCE stations would have no incentive to alter that programming to suit the preferences of a political candidate or “issue group” and thereby attract their advertising dollars.

As to public affairs programming, the Court acknowledged that stations might change the content of such programming to attract political and issue advertising on various sides of important issues. But the Court could find no evidence – either before Congress when it enacted the ban or before the District Court that initially upheld it – that suggested that Congress was, or should have been, worried about that speculative notion. To the contrary, Congress appeared to be concerned exclusively with “commercialism”. Campaign ads and issue ads don’t promote “commercialism” because, in the Court’s view, they “do not encourage viewers to buy commercial goods and services”.

Additionally, the Court was struck by the fact that the discriminatory effect of the advertising ban. The ban permits announcements that promote the goods and services of non-profit companies, but forbids political/issue announcements. Such governmental line-drawing based on the content of the communications at issue raises serious constitutional questions. The FCC was unable to justify to the Court’s satisfaction the content-based distinction drawn by the statutory prohibition.

So what does this all mean? For openers, it means that NCE stations – at least those in the states within the Ninth Circuit – can now sell advertising time to political candidates and groups seeking to address important public issues. That could alter some candidates’ strategies – since NCE stations may provide more direct access to certain audience demographics. It will certainly alter the operations of many NCE stations, which will now be able to market themselves to at least certain limited classes of advertisers.

By the way, (1) what states are in the Ninth Circuit, and (2) why does that matter?

Answer to Question 1: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Answer to Question 2: Because the Ninth Circuit has jurisdiction over only those cases arising in those states, and its decisions thus affect only those states. It is therefore at least conceivable – but not, in our view, likely – that the Commission could take the position that stations located outside of the Ninth Circuit are still subject to the advertising prohibitions. (We think it unlikely that the Commission will go that route because to do so would create, in effect, two separate sets of rules based purely on the accident of geography. It’s hard to imagine that the FCC would be eager to head down that road.)

Those public stations that elect to jump into the political advertising game will have to familiarize themselves with the complex of political ad rules that routinely beleaguer their commercial counterparts. Equal opportunities, lowest unit rates, political file obligations, etc., will presumably all have to be implemented in some fashion, even though the Court’s decision did not address any of those niceties.

One thing that NCE stations won’t have to worry about: the “reasonable access” provision of the Communications Act. That provision mandates that candidates for federal office are entitled to “reasonable access” to advertising time. The precise extent of “access” that might be deemed “reasonable” has bedeviled the Commission and the courts for years. But the Act expressly exempts NCE stations from that obligation, and the Ninth Circuit’s decision does not alter that exemption.

Where do we go from here? The Commission could fold up its litigation tent and accept the Circuit’s decision, leaving it to Congress to amend the Communications Act to address the decision if Congress sees fit.

Alternatively, the Commission could ask the Ninth Circuit to reconsider its decision. The three-judge panel did include one dissenter, which might give the Commission some hope. Or it could ask the full Circuit to rehear it en banc. Or it could go for broke and ask the Supremes to take a look. In the meantime, unless the FCC requests and is granted a stay of the effectiveness of the Circuit’s decision, the ban on political/issue ads on NCE stations (at least in the Ninth Circuit) is gone until further notice.

Check back here for updates on how the Commission chooses to proceed.

In closing, we note that KTMP is probably frustrated. In all likelihood, KTMP launched its appeal not with the goal of trashing the ban on political/issue ads, but rather to get rid of the more general ban on commercial advertising which had gotten it into hot water at the FCC. While it obviously came up short on that score, KTMP’s efforts have nonetheless established an important precedent for all NCE stations.

Dead Men File No KidVid Reports

Davina Sashkin — Thu, 26 Apr 2012 16:12:17 -0500

Tales from the crypt: Video Division reaches into grave to yank Class A tickets

We have previously written about the Commission’s apparent quest to move as many Class A television stations back into the LPTV category as possible. Presumably this quest is motivated by the Commission’s seemingly all-consuming urge to free up as much TV spectrum as possible for “repurposing”.

That urge has now driven the Commission’s Video Division to reach into the grave to take a couple of Class A authorizations back from a dead guy. (The two orders may be found here and here.)

The case involves two Class A – er, one-time Class A, at least as of today – stations in Texas licensed to a gentleman named Humberto Lopez. Back in March, 2011, when the stations were both still card-carrying members of the Class A Universe, the Video Division asked how come Mr. Lopez apparently hadn’t filed children’s TV reports (FCC Form 398) for 2006, 2007, 2008, 2009 and 2010. Commission records revealed no such reports, so the reasonable assumption was that no such reports had been filed – but the March, 2011 inquiries were designed to give Mr. Lopez the chance to set things straight.

Wouldn’t you know it, Mr. Lopez died in May, 2011, within a month or two of the FCC’s inquiries. It’s hard to respond to FCC questions where you’re, um, dead.

The Commission followed up its March, 2011 inquiries with more inquiries in August, 2011. By then, of course, Mr. Lopez was long gone, although, in fairness, the Commission may not have been aware of the licensee’s unfortunate demise at that point.

But the Commission was for sure aware of his demise by November, 2011, when the executor of gone-but-not-forgotten Mr. Lopez’s estate filed an application (FCC Form 316) for consent to the assignment of the license to the executor. Such applications are standard operating procedure; they are routinely granted in a matter of days.

Not so in this case. According to CDBS, that 316 is still pending, more than five months after it was filed.

Of course, until that application is granted, Mr. Lopez technically remains the licensee, and his executor (who is not the licensee) is technically not in a position to respond to inquiries directed to the licensee.

So what does the Video Division do? Knowing that the licensee is dead, and knowing also that the licensee’s executor is not in a position to formally respond to Commission inquiries addressed to the licensee, the Video Division issued show cause orders to Mr. Lopez in February, 2012. Those orders proposed to reclassify the two Class A stations to LPTV status.

To no one’s great surprise, Mr. Lopez, being dead and all, did not respond to those orders.

And now the Division has held that, because of his lack of response, the Division will “deem him to have accepted the modification of [his licenses] to low power television status”.

We understand that the Commission is on what it perceives to be a desperate quest for TV spectrum. And we get that Class A stations that no longer qualify for Class A status may look like low-hanging fruit in that quest. But really, is the Commission so desperate that it has to engage in grave-robbing? Since Mr. Lopez had been dead for nearly a year by the time the Division issued its show cause orders, isn’t it more than a little inappropriate for the FCC to draw any conclusions from his failure to respond to those orders?

It may be true that the late Mr. Lopez failed to file KidVid reports. But that doesn’t necessarily mean that he didn’t air the programming or place appropriate reports in his public files. Wouldn’t it be at least fair (not to mention decent) to grant the Form 316 application and then accord the new licensee a reasonable time to investigate the situation and respond accordingly?

In the alternative, shouldn’t the Commission try to check – maybe with a Ouija board – exactly what the licensee meant by not responding?

Kevin Goldberg — Wed, 25 Apr 2012 05:29:12 -0500

Comments, objections, due by May 25, 2012

If you’re a noncommercial educational (NCE, a/k/a “public”) broadcaster, heads up. The Copyright Royalty Board (CRB) has issued proposed rates and terms for the use of various copyrighted works by public broadcasters from January 1, 2013 through December 31, 2017. You’ve got 30 days – to May 25, 2012 – to sift through the complex series of rate schedules the CRB has put on the table.

So just what’s on the table? The rates that NCE broadcasters will have to pay to copyright holders (through those holders’ agents, including ASCAP, BMI and SESAC) for the right to broadcast, during 2013-2017, the underlying music and lyrics in all those copyright holders’ songs. (Technically, the CRB proposal also covers the use of pictorial, graphic and sculptural works, but those tend to have less impact on broadcasters.) For the CRB’s purposes, the universe of NCE broadcasters encompasses all entities treated as NCE licensees by the FCC, including educational institutions and large scale public radio and TV licensees.

The proposed rates are the product of an arcane ratemaking process that began on January 5, 2011. First, the CRB invited potentially interested parties to, in effect, sign up to participate. Who showed up? The usual suspects. For the copyright holders, there were: ASCAP; BMI; SESAC; the National Music Publishers Association and the Harry Fox Agency; and the Church Music Publishers’ Association. Broadcasters on board included: the Educational Media Foundation; NPR/PBS/CPB; the National Religious Broadcasters Noncommercial Music License Committee; the Catholic Radio Association; and the American Council on Education.

The CRB then turned all the players loose for a three-month negotiation period. The goal was to see if the parties could come to agreement on the rates to be applied to the various subsets of noncommercial broadcasting. Some specific agreements were reached between specific public broadcasting entities and specific copyright owners (or their representatives). Those were not, and will not be published, in the Federal Register, as their reach is limited to the particular parties to the various agreements.

The more generally applicable agreements are submitted to the CRB for its approval.

There were seven such agreements. In its latest notice, the CRB sets forth those proposals in a collection of proposed rules (actually, proposed changes to the rules found in 37 C.F.R. Part 381). They include eight separate grids of rates covering licensees of various types and sizes, in various markets, providing various types of programming. To say that there’s a lot of information to consider and digest here is a gross understatement.

Since the CRB’s notice (with all of its proposed rules, tables, rates and terms) has just been released, we can’t pretend that we’ve studied it carefully. But we will. In the meantime, here's a very early, very quick and dirty review of what we see as the high points:

It’s unclear what is happening with regard to NPR and PBS stations. The rule that previously applied to this subset of noncommercial broadcasters has been removed and the space held open for future use. No explicit reason was given. It could be that NPR and PBS reached specific licensing agreement; could also be that these stations are just going to be treated as equals to their fellow non-college and university noncomms.

Those general noncommercial broadcasters will pay slightly more for performance of musical works (as would be expected) during the upcoming five-year period, but the change is not drastic. Also as expected, they will pay the same amount to ASCAP that they pay to BMI, with each of those entities receiving more per station than SESAC. While smaller stations (according to their predicted 60 dBU contours) will pay about the same whether they are playing large amounts of music or not, there are distinct differences among larger stations, depending on whether those stations are music- rather than talk-focused.

There is also a slight increase for noncommercial stations affiliated with a college or university. However, the bigger change on this end is the elimination of a one-size fits all flat fee in favor of a tiered system that takes into account the size of the student body when determining payments to ASCAP and BMI (no such tiering exists for SESAC). However, even within this tiered system, smaller stations (those with an ERP of 100 watts or less) get a break.

Anyone who might be affected by copyright rates to be charged NCE broadcasters until the end of 2017 would also be well advised to dig into the CRB’s notice. With a paltry 30-day comment period, the sooner you get started on figuring out how the proposals could affect you, the better off you’ll be.

FM Boosters: The Next Source of Originated Programming?

Peter Tannenwald — Tue, 24 Apr 2012 09:55:39 -0500

FCC invites preliminary comment on Geo Broadcasting proposal for program origination by FM boosters.

Now that the DTV transition has been in effect for almost three years, multi-channel TV broadcasting is fairly commonplace. But what about FM radio? Thanks to digital FM technology designed by iBiquity and authorized by the FCC, FM stations have for years been able to provide up to two additional programming streams beyond their main channel. And yet, development of an economically sound model for multi-channel audio services has been much slower than on the TV side.

Enter Geo Broadcasting Solutions, LLC (Geo). The folks at Geo have come up with an alternative approach to multi-channel FM service. They are proposing that on-channel analog FM boosters be permitted to originate programming separately from the parent station. The concept is that each booster could transmit hyper-local material to the audience in its immediate vicinity – mostly commercial spots, but also other material if a licensee so desired.

Boosters are like translators – low-power transmitters that permit licensees of full-power stations to improve the coverage of their full-power stations within their already protected contours. The difference between boosters and translators is that a booster operates on the same frequency as the full-power station whose signal it is “boosting”. Translators, of course, operate on different frequencies from their primary stations. (Boosters are authorized only to the licensee of the primary station and may not expand the primary station’s service area. Commercial translators funded by the primary station also may not expand the primary station’s service area – a restriction that does not apply to non-commercial translators or independently-funded commercial translators.)

Since boosters are on the same channel as the primary station, booster operation generally poses considerable potential for interference. That’s one reason why boosters have not been widely used over the years, even though the FCC’s rules have provided for them for more than four decades. In recent years, however, modern computer control techniques allowing precise synchronization of the parent and booster signals have improved performance. A quick glance at the FCC’s database indicates that a few hundred FM boosters are currently authorized.

Geo claims to hold patents on techniques that shape signal coverage to avoid interference both (a) between a booster and its parent station and (b) between multiple boosters each rebroadcasting the same parent. According to Geo, its technology will allow the insertion of separate material into the programming on each booster. In other words, a licensee with multiple boosters could include different programming on each separate booster – allowing the licensee to direct different content to specific areas within its main station’s primary contour.

Geo says in its petition for rulemaking that it has conducted successful tests of the technology in Utah and Florida (thanks to experimental authority granted by the Commission). Armed with that experience, Geo is now formally proposing that the FCC amend its rules to authorize booster origination on a regular basis. The Commission has, in turn, invited preliminary comments on Geo’s petition. Any comments – whether supporting or opposing the proposal – are due by May 23, 2012. (Note: This is a very preliminary stage. The Commission has not yet issued a formal proposal – i.e., a “notice of proposed rulemaking” – with respect to Geo’s petition, and it may never issue such a proposal. The present commenting opportunity just gives interested parties the chance to chime in with their initial views on whether to kill Geo’s concept before it multiplies or take it to the formal rulemaking stage.)

Geo’s technology would not eliminate some of the practical concerns in booster operation. For example, it would still be necessary to choose booster sites carefully. At least in today’s analog FM radio world, boosters should generally be shielded by terrain from the parent station, so that any individual listener will not receive a strong signal from more than one source at the same time. Many areas do have terrain obstacles, though; the Geo concept might prove useful in such situations.

Beyond the technological questions, there is a more fundamental business question: does targeting for one or more micro-audiences make sense? Newspapers have tried hyper-local inserts with only mixed success. But newspapers have to bear the ongoing costs of printing and distributing separate editions to provide micro-area advertising services. For radio stations, the process would be entirely electronic. Beyond the one-time cost of obtaining hardware and software (and obtaining the necessary FCC authorizations), broadcasters’ expenses would be largely limited to ongoing personnel costs to sell and produce extra spots for target areas.

Before we wade into that level of cost-benefit analysis, though, we should wait to see what the engineering community thinks. If the Geo proposal gets through the technical gate, then station owners will have to ponder the economics.

Update: Comment Deadlines Set in Alien Ownership Inquiry

FHH Law — Tue, 24 Apr 2012 05:59:03 -0500

A week or two ago we reported on a request for further comments in the alien ownership proceeding. The FCC’s notice asking for more comments has now made it into the Federal Register, which establishes the deadlines for anyone interested in chipping in his/her two cents’ worth. Comments in response to the notice are due by May 15, 2012; reply comments are due by May 25.