CommLawBlog

Areas/pops data for auction-eligible stations released for comment. We have another sign of the impending arrival of the spectrum auction. The FCC’s Office of Engineering and Technology (OET) has released what it describes as the “final” version of its TVStudy software. This latest-and-greatest version – dubbed Version 1.3.2 – is the one that will be … Continue Reading

A couple of weeks ago we reported on the revisions to the Emergency Alert System rules adopted in the wake of the 2011 nationwide EAS test. Those revisions have now been published in the Federal Register, so we know that they will take effect on July 30, 2015. All the new rules, that is, EXCEPT … Continue Reading

Settlement wraps up record labels’ lawsuit re pre-1972 performance rights They’re rejoicing in the Home for Old Musicians (not to mention the Home for Companies That Own Old Musicians’ Performance Copyrights). Sirius XM and several major record labels have settled one of the “Pre-1972” lawsuits that we’ve written about in the past. The result: Sirius … Continue Reading

Introducing some changes AND a new CommLawBlog contest! As longtime readers have doubtless noticed already, CommLawBlog looks different. That’s because, with the help of our friends at LexBlog, as of June 25 we have upgraded ourselves in a number of respects, some obvious, some not so. The content, of course, hasn’t changed. It’s all there, … Continue Reading

Last month we reported on the FCC’s decision to open up the 3.5 GHz (3550-3700 MHz) band for a wide variety of new uses, making it the new home of the new Citizens Broadband Radio Service (CBRS). While (as we have also reported) a number of issues still need to be worked out before the CBRS will be fully ready for prime time, the Commission’s Report and Order has now been published in the Federal Register, which means that the rules that were adopted are set to take effect on July 23, 2015.But heads up. As it turns out, not all the rules will be taking effect as of that date. That’s because a bunch of them involve “information collections” that must first be run past the Office of Management and Budget, thanks to our old friend, the hilariously-named Paperwork Reduction Act. That means that, despite their formal adoption by the FCC and their publication in the Register, the following rules are still on hold: §§96.17(d), 96.21(a)(3), 96.23(b), 96.29, 96.33(b), 96.35(e), 96.39(a), 96.39(c)-(g), 96.41(d)(1), 96.43(b), 96.45(b), 96.45(d), 96.49, 96.51, 96.57(a)-(c), 96.59(a), 96.61, 96.63, and 96.67(b)-(c). OMB’s PRA process usually takes at least several months. Once it’s wrapped up (and assuming that OMB gives its thumbs up, which it tends to do), the FCC should be issuing a public notice advising us all. Check back here for updates.

Colorado students propose a mechanism for swift adjudication of interference disputes.When Congress created the FCC in 1934, it ordered the new agency to “Make such regulations … as it may deem necessary to prevent interference between stations ….”Eighty-one years later, the FCC has still not figured out how to do this. For much of that history there was plenty of spectrum to go around, so interference problems were sporadic. But over the past 25 years or so, falling prices for radio gear and the proliferation of new radio-based technologies have led to congestion, which in turn has caused increasing numbers of interference events.In broadcast, fixed microwave, and a few other services, the FCC has foreclosed the problem by prohibiting the introduction of a new station until the applicant shows it will not cause interference to the incumbents – but this works only for fixed transmitters operating at relatively high power. Users of some other services, such as Wi-Fi and amateur radio, get no interference protection at all. Most services are somewhere in between: entitled to protection in theory, but largely helpless when interference actually occurs. Very occasionally, the FCC has addressed interference problems by adjusting its technical rules: for example, when automotive radar detectors interfered with satellite receivers, and more recently, when wireless Internet service made trouble for weather radars.Most of the time, though, an interference victim just has to put up with it.When the FCC does take action, its usual response is an after-the-fact enforcement proceeding against the party that caused the interference. This is the wrong tool for the job. Enforcement acts on only a small fraction of complaints, is arbitrary in whom it targets, comes too late to help the victim, sweeps up innocent offenders along with the truly guilty, and sometimes sets the penalties so high as to become an object of litigation rather than an effective deterrent.Law students at the University of Colorado have a different idea. Their recent Petition for Rulemaking asks the FCC to let an interference victim file a complaint directly with an FCC Administrative Law Judge (ALJ) – a magistrate whose main job to date has been to preside over hearings. The petition contemplates that an ALJ handling an interference dispute would supervise the parties’ discovery of each other’s evidence, receive such other evidence as the parties wish to submit, perhaps hear testimony, and render a decision. In court litigation, the discovery process often leads to settlement or to alternative procedures such as mediation. The CU students expect the same will happen here. In case it doesn’t, they ask the FCC to impose time limits on the ALJs in order to ensure speedy decisions,Today the FCC has the authority to refer an interference dispute to an ALJ but, according to the petition, has never done so. There is presently no way for an aggrieved party to bring a matter directly to an ALJ – hence the need for a rulemaking.Down here in the CommLawBlog bunker we always admire fresh thinking. Still, we’d like to raise a couple of concerns we hope the petitioners will address going forward.An ALJ’s job is to interpret and apply the law, but here, there is precious little law to work with. The rules say that users must avoid causing “harmful interference” to protected licensees, but the FCC has not said much about what that term means. The official definition of “harmful interference” comes in two parts:

After 81 years, the FCC has still not fulfilled its congressional mandate to "prevent interference between stations."… Continue Reading

Wireless Bureau public notice lists “defects” in ASR applications, urges compliance, threatens penaltiesIf you own a tower subject to the FCC’s Antenna Structure Registration (ASR) requirements, the Wireless Telecommunications Bureau’s got something to say to you: Shape up and pay attention to the rules … or else. In a terse public notice, the Bureau advises that, in the course of reviewing ASR applications, it has “discovered several types of defects”. All the observed defects “may be considered violations of FCC rules and are potentially subject to enforcement proceedings.” Get the message?What “defects” is the Bureau talking about here? Here’s the list with respect to existing towers:

Auction 98, featuring 131 FM construction permits, is on track. The FCC has issued a notice announcing that 112 potential bidders submitted applications to participate in the upcoming auction. The auction is still scheduled to begin on July 23, 2015. If you are not on the list of 112 bidders, the auction train has already left the station, but you can watch auction developments on the FCC’s auction website or by following us here at CommLawBlog.comA total of 112 prospective bidders tossed in applications. Of those, 87 made the cut on their first try: the Commission has concluded that their applications were complete and acceptable, so they are assured of a bidding paddle and a seat in the bidders’ section (assuming, of course, that they get the necessary upfront payment filed in time).The other 25 applicants? As for 24 of them, the FCC sent letters asking for a bit more information about their applications. They have until June 29, 2015 to dot their “i”s, cross their “t”s and provide the FCC with whatever paperwork has asked for. As for the 25th applicant, there’s bad news. It was totally rejected and won’t be permitted to participate. How come? The applicant revealed that if it won, it was going to use the station for noncommercial educational purposes. While that's a laudable goal, it was also the kiss of death; the FCC kicks out NCE applicants that are in an auction with commercial bidders.Any bidder – whether one of the 87 already-in-the-door or one of the 24 “incompletes” (but not the lone rejected applicant) – who wants to participate in the bidding is required to wire the upfront payment to the FCC within the next week by 6:00 p.m. Eastern time on Monday, June 29, 2015. Readers who plan to participate in the auction are advised to send your money to the FCC well before the deadline to avoid any unexpected delays. The FCC is not sympathetic to bidders who wait until the last day; historically, the FCC has disqualified some late-paying bidders who claimed that their lateness was the fault of their banks.As is commonplace with auction notices, the FCC dedicates nearly three pages of its ten-page release to warnings about the anti-collusion rules. Cautionary anti-collusion note: Even if they opt not to participate further from this point on in the auction process, all 112 prospective bidders are prohibited from discussing the auction, the markets, the bids or the bidding strategies with other bidders in the same market until several weeks after the auction closes. The anti-collusion rules are very strict and the FCC enforces them rigorously. Cautionary example: Several years ago the FCC and the U.S. Department of Justice dragged a bidder through federal court in order to enforce penalties related to anti-collusion violations.More than half of the 87 “complete” applicants are claiming new entrant bidding credits that would allow them to pay less than their bid amounts should they win. A new entrant with no interest in any other mass communication outlet is entitled to a 35% credit, which means they would pay only 65% of their winning bid. Bidders who own three or fewer mass communication interests are entitled to a 25% discount as long as there is no overlap between (a) any of their current interests and (b) a market on which they are bidding. As is typical in these types of auctions, more than two dozen bidders advised the FCC that they wanted to bid on all 131 markets. Selecting all markets does not necessarily indicate that the bidder will be active everywhere; rather, it may just reflect a preference to keep the maximum number of options open … or it may indicate that the bidder simply pressed the “Select All” button by mistake when filling out the form.After the FCC receives funds from potential bidders, it will release another list of those bidders who are going forward in the auction. The next list is expected in mid-July. Check back here for updates.

Unprecedented fine for reducing data speeds in “unlimited” data plans (apparently) without adequate notice to consumersHere’s your philosophical question for the day: What does “unlimited” mean? Not sure? Take your time. Oh, and not to add any pressure or anything, but bear in mind that if you come up with the wrong answer, it could cost you $100 million. Does that help?AT&T guessed wrong – at least as far as the FCC is concerned – when it described one of its mobile data offerings as “unlimited”. The result: a proposed $100,000,000 fine. Yup, eight (count ’em, eight) zeros, which is real money, presumably even for AT&T. In fact, it’s the largest fine ever imposed by the FCC, by a long shot.The FCC obviously wants us all to know that it’s serious about enforcing its Open Internet rules.What’s at issue here is the Transparency Rule, which provides thata person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services ….For purposes of this disclosure rule, the Commission advised that the types of information to be disclosed would “likely include some or all” of the following: “network practices”, including “congestion management practices”; “performance”, including “expected and actual access speed and latency”; and “commercial terms”, including “monthly prices, usage-based fees, and fees for early termination”. The Commission also explained that “effective disclosure” would entail, at a minimum,prominently display[ing] or provid[ing] links to disclosures on a publicly available, easily accessible website that is available to current and prospective end users … [as well as] disclos[ing] relevant information at the point of sale.The Commission adopted the Transparency Rule in the 2010 Open Internet Order. The rule took effect in 2011. (While much of the 2010 Open Internet Order was eventually overturned by the D.C. Circuit in 2014, the Transparency Rule survived.)How did AT&T get cross-wise with the rule? The problem started in June, 2007 – more than four years before there was a Transparency Rule – when AT&T began offering “unlimited” data plans. Those plans allowed customers to use unrestricted amounts of data, with no high-speed data caps or automatic speed restrictions. AT&T stopped offering unlimited plans to new customers in June, 2010. However, it continued, and continues, to allow customers with “grandfathered” unlimited data plans to renew their plans on a month-to-month or term basis.In 2011, AT&T implemented a Maximum Bit Rate (MBR) policy under which AT&T capped the maximum speed throughput that unlimited data plan customers experienced once they had used a set amount of data in a billing cycle. Under the MBR policy, the maximum speed would be capped when, during any particular billing cycle, 4G LTE customers had used five gigabytes of data or 3G and other 4G customers had used three gigabytes.The MBR rate supposedly didn’t reduce the total amount of data theoretically available to these customers; that remained at “unlimited”. But it harshly reduced the speed with which the data could be accessed: from 5-12 Mbps down to 512 kbps for 4G LTE customers, and from 1.7 to 6 Mbps down to 256 kbps for other customers. That’s just a few times the old “dial-up” speeds, and wholly insufficient for many broadband applications. Customers who went over the data cap had their speeds throttled for the remainder of their billing cycle, an average of 12 days.The Transparency Rule doesn’t prohibit such limitations, but it does require appropriate disclosure of them. As noted above, the specifications for such appropriate disclosure as set out in the 2010 Open Internet Order are pretty limited – “prominent display”, inclusion on “publicly available, easily accessible websites”, disclosure at point of sale.Did AT&T comply with the requirements of the Transparency Rule in marketing its “Unlimited Data” plan to its customers? To publicize its MBR policy to its “unlimited data” customers, AT&T:

Commission green-lights Breitling “Emergency” watch for U.S. MarketIn Thunderball, Bond (that’s James Bond) used a Breitling Top-Time watch tricked out for use as a Geiger counter. He needed it while on the hunt for some stolen nuclear warheads.That, of course, was the best 1960s’ technology could do. But hey, we’re in the 21st Century, and we should expect more. And now, thanks to the FCC, we’ve got it.Say hello to the Breitling Emergency.The watch contains a personal locator beacon (PLB) that allows users to send emergency beacon messages when they need to be rescued. Crash-land your helicopter on polar ice? Sail into a reef with your yacht? Get lost in the deep jungle? No problem! Just reach for your Emergency, pull out the antennas, and activate a beacon that will contact the COSPAS-SARSAT satellite system. (Shameless product placement: Check out the Breitling website for a demo.)COSPAS-SARSAT is an international satellite system, first formed by the U.S., French, Russian and Canadian governments, designed to receive and respond to emergency distress calls. The new version of the Emergency replaces an earlier version, which operated on 121.5 MHz, the frequency on which the COSPAS-SARSAT system initially operated. COSPAS-SARSAT has since switched to 406 MHz (though many search and rescue agencies still use 121.5 MHz during rescue activities). So the Emergency has been modified to transmit on both frequencies.A watch is, of course, much smaller than a traditional handheld personal locator beacon, which caused a problem at the FCC. Despite advances in miniaturization, Breitling couldn’t perfectly meet the FCC’s rules for PLBs (for example, manual control, battery, and labeling requirements). But Breitling was able to satisfy the Commission that the Emergency can properly send alerts, performing perfectly during a series of tests with the satellites. And, needless to say, there are significant benefits to having the beacon available right on one’s wrist during times of emergency. So the FCC gave it the thumbs up.U.S. customers will have to review and sign a Conditions of Use specific for the U.S. market, confirming that they understand that the watch is designed differently from other PLBs. For example, it has a rechargeable battery that must be tended to every so often. Additionally, Breitling committed that sales of the Emergency will be “limited to qualified and properly trained customers because it will be sold only by specially trained and certified sales associates.”The decision demonstrates the FCC’s willingness to apply its rules flexibly to accommodate new technologies which offer significant life and safety benefits, technologies that otherwise would not be put to market.(Blogmeister’s Disclosure: Laura Stefani represented Breitling in this matter. Of course, results in any one case are no guarantee of similar results in other cases.)

From 2011 nationwide test, lessons learned lead to system tweaks, electronic reporting systemNearly four years ago the FCC (along with FEMA) conducted the first ever nationwide test of the Emergency Alert System (EAS). Now, after analyzing the performance of the EAS during that test, and after twice soliciting input from interested parties, the Commission has decided to tweak the system. This will be of interest to all EAS participants, since within the next year or so their equipment will have to accommodate the tweaks.Header Code Tweaks.The first two changes the FCC has adopted involve EAS “header codes”. As we all know, the EAS system is a “daisy-chain” arrangement by which alerts percolate down through EAS participants and out to the public. An EAS alert – real or test – is triggered when a message is sent by an authorized person or office. The message contains a “header” consisting of certain coded components that permit EAS equipment down the daisy-chain to identify the originator of the message, the type of event in question, the geographic area affected by the alert and other useful information. It is obviously important that this coded information – particularly the “location” and “event” codes” – be interpreted correctly by EAS gear downstream so that the message will be accurately transmitted to the proper audience.The first problem that surfaced during the 2011 nationwide was the location code, or, rather, the lack of one. Location codes allow EAS gear to determine which alerts pertain to which particular geographic area(s). There is, after all, no reason that an EAS participant in, say, Alaska should issue an alert concerning some emergency local to, say, Florida.While the EAS designers had provided location codes for each state, they hadn’t provided any for a nationwide alert, so there was no way to indicate that the nationwide test was intended to trigger EAS receivers throughout the system. Oops. The 2011 test was sent using the location code for Washington, D.C., but that didn’t do the trick because some equipment rejected the alert as being “out of area”.The solution: designation of six zeroes (as in “000000”) as a national location code for any future nationwide tests (or, God forbid, actual nationwide emergencies). That happens to be the national code already used in the Common Alerting Protocol (CAP), so its adoption for EAS purposes will insure consistency between EAS and CAP, which is what you’d want in the event of a real national emergency. (For more on CAP, check out our post from a couple of years ago.)The good news: According to the Commission, the six zeroes code can be accommodated by most equipment already in use, either as is or with a mere software update. The bad news: Adoption of the six zeroes code will still likely cost some affected EAS participants more than $2 million in the aggregate, split roughly evenly between cable operators and broadcasters. Readers will be comforted to know that the FCC views that figure as “negligible” and has decided that, in any event, the benefits justify the cost. So six zeroes is the new nationwide location code.The second header problem involved the “event code” to be used in a nationwide test. The event code tells EAS equipment what type of emergency is involved. There are several dozen possible event codes – you can find them in Section 11.31(e) of the rules – ranging from “Avalanche Watch” through “Volcano Warning” and on to “Winter Storm Watch”. While the list includes a “National Periodic Test Code” (NPT), in the 2011 test the Commission instead used the EAN – “Emergency Action Notification” – code.EAN is the code used when there is a for real national emergency. Because such notices, if necessary, will clearly be of the highest priority, EAS equipment is programmed to move EAN messages to the head of the line, bumping any other EAS message that may otherwise be in the way. (NPT messages don’t get that priority.) And unlike NPT and other event codes – which are limited to two minutes (to permit EAS units to reset after two minutes in the absence of an “end of message” (EOM) code) – EAN messages can be any length. The 2011 test was originally scheduled to run three minutes (that was later ratcheted down). Because the organizers wanted the test to be as realistic as possible, they used EAN rather than NPT in 2011.That resulted in problems. The EAN header, as expected, generated a visual message saying there was a national emergency, but the audio said that it was only a test. Anticipating that, the Commission and FEMA had engaged in extensive outreach prior to the test to alert the public that a test would be conducted. They had also produced an “Only a Test” slide for use televisions stations and video service providers to use. Nevertheless, confusion still occurred, particularly among members of the public with disabilities. (As it turned out, some cable providers couldn’t display the “Only a Test” slide.)To deal with this event code problem in future tests, the FCC had three options. It could continue to use EAN – not a desirable alternative, given the problems encountered when it did just that in 2011. Or it could re-work the NPT code to act like the EAN code, with its prioritization and extra length. Or it could simply elect to use NPT in its existing form and forgo precise verisimilitude. The Commission has chosen that last option.As it turns out, re-jiggering NPT to emulate EAN would be time-consuming and expensive – more than $3 million, according to FCC estimates. By contrast, since NPT is already included in the list of codes, all (or at least the vast majority of) EAS equipment currently in operation is set up to process NPT messages. While some EAS participants may have to reconfigure their gear so that it automatically responds to the NPT code, that apparently is a minor chore easily accomplished. In the Commission’s view, a nationwide test using NPT should adequately test the overall EAS operation.Electronic Test Reporting. After the 2011 nationwide test, EAS Participants were required to submit test results data, either on paper or through a temporary electronic filing system. Most took the electronic option, which not surprisingly provided data much more promptly than did the paper route. Happy with those results, the Commission has opted to implement a permanent, and mandatory, Electronic Test Reporting System (or ERTS).ERTS will involve three separate forms. The first will simply identify the EAS participant. The second will be a “day of test” form to confirm receipt of the nationwide test alert (and, where applicable, propagation of the alert downstream). And the third, to be filed within 45 days of the nationwide test, will require participants to report detailed information about their receipt and propagation of the alert, including discussion of any complications encountered along the way.ERTS will look a lot like the 2011 electronic filing platform, but it will have more bells and whistles. Data drawn from the Commission’s databases (e.g., ULS) regarding EAS Participants will pre-populate fields on the form. EAS Participants will be able to retrieve previous filings for 30 days to correct errors, get receipts verif­­ying submission of completed reports, and file their reports in batches. Heads up on two points, though. First, as with just about every FCC form, filers will be required to attest to the truthfulness of their filings. And second, while the form will permit filers to enter their latitude and longitude in separate fields, it will require use of NAD83 figures, not NAD27.The FCC’s Public Safety & Homeland Security Bureau (or just the Bureau for our purpose) will release a public notice providing more details as we get closer to the ERTS launch date. Once the form is officially available, EAS Participants will be required to review and update the pre-populated fields and make any necessary corrections.Visual Crawl and Audio Accessibility. EAS alerts are supposed to be both aural and visual, with the latter generally displayed either as a page of fixed text or a video crawl at the top of the screen. The 2011 nationwide test turned up some problems on this front, particularly with respect to disabled viewers. Video crawls scrolled across some screens too quickly, the font in some visual messages was difficult to read.Some commenters suggested that more time should be provided to allow stakeholders to resolve the accessibility issues, but the Commission was not in a waiting mood. While the FCC urged continued collaboration in the private sector, it concluded that at least some basic rules are needed now. Accordingly, the EAS rules have been amended to require that visual EAS messages be displayed in a size, color, contrast, location and speed that is readily readable and understandable. The rules don’t specify a particular font size or crawl speed, but they do require that the entire visual message be displayed at least once during any EAS alert.The Commission also reiterated the existing requirement that visual messages be displayed at the top of the screen or where they won’t interfere with other video messages. To the requirement it added language mandating that the visual message not contain overlapping lines of EAS text or extend beyond the viewable display (except for crawls, which of course are intended to scroll on and off the screen).As for EAS alert audio, the Commission will now require that the message be played in full at least once during any EAS alert. The Commission also said it expects audio messages to be delivered “in a manner and cadence that is sufficient for the consumer who does not have a hearing loss to readily comprehend it.”Next Steps. Recognizing that EAS is a work in progress, the Commission has directed the Bureau to continue collaboration with FEMA and other stakeholders. That collaboration will include a workshop, hosted in conjunction with FEMA, focusing on (a) increasing the flexibility of the EAS to expand its use by emergency managers at the state and local levels, and (b) the improvement of alert accessibility. Look for the workshop to happen before mid-September.Meanwhile, when will EAS participants be expected to comply with the new rules?Participants will have 12 months from the effective date of the new rules to get their equipment set up both to use the six zeroes code and to respond automatically to an NPT alert. They will have six months from the effective date to insure that they comply with the visual display legibility, completeness and placement standards.Meanwhile, the required review and update of pre-populated fields in the ERTS will have to be completed within six months of the later of (a) the effective date of the ERTS rules or (b) the official launch of ERTS. We’re betting that the latter of those two potential deadlines will be the one to worry about. That’s because the ERTS will be an “information collection”, which means that the FCC will have to get approval from the Office of Management and Budget before ERTS can be rolled out.What is the effective date of all these new rules, you ask? Thirty days after Commission’s order is published in the Federal Register. Check back here for updates on that front.

With constriction of TV spectrum, Commission looks to set priorities.With the impending repack of the TV band, already scarce spectrum will be getting scarcer. In an effort to preserve UHF spectrum for unlicensed devices and wireless microphones, the FCC has issued a Notice of Proposed Rulemaking (NPRM) proposing the reservation of one vacant UHF TV channel in every geographic area of the country for use by unlicensed TV white space devices (WSD) and wireless microphones.Under the proposal, once the incentive auction is completed, TV applicants – a universe that includes applicants for full-power, Class A, LPTV, TV translator and Broadcast Auxiliary Service (BAS) authorizations – would have to demonstrate that their proposed facilities would still leave one UHF channel available for unlicensed devices and wireless mics. LPTV’s, translators and BAS applicants would be subject to that requirement immediately following the incentive auction. Full power and Class A applicants would get a grace period of 39 months (corresponding to the time allowed for stations that were not bought in the auction to move to their post-auction channels) during which they would be exempt from the requirement. As the Commission currently figures it, though, after that 39-month period Class A applicants would have to make the showing. Whether or not full power stations would be similarly burdened after the exemption period is a question about which the FCC expressly seeks comment.Other questions posed by the NPRM: Should Digital Replacement Translators (DRTs) forced to change channel post-auction be accorded some kind of priority over LPTV and translator applicants and if so, how? How about out-of-core LPTV stations eligible for Class A status which hadn’t obtained that status by February 12, 2012: such stations won’t be protected in the incentive auction – but should they be subjected to the vacant channel demonstration requirement?The NPRM also recognizes that some new prioritizing may be necessary.For example, in order to satisfy the vacant channel condition, should LPTV and/or translator displacement applicants be allowed to ignore applications for new or modified LPTV/translator facilities? Should Class A station applications (for the first time) be permitted to displace already authorized (or proposed) LPTV or translator stations? And what will happen to those stations – mostly LPTV -- that use vacant TV channels for studio-transmitter links?The Commission does not envision that a single uniform UHF channel would remain available nationwide or even throughout a particular DMA. Rather, the required showing would involve a demonstration that white space devices and wireless microphones operating within the same area as the proposed broadcast or BAS station will have access to at least one channel.The remaining available TV channel need not be uniform throughout a market. The FCC suggests that broadcast applicants make a showing based on 2 km cells in a grid. As long as one vacant channel remains available in each grid, using existing Part 15-broadcast interference standards, it won’t matter to what extent the channel may be different in every grid. The assumed power level for personal portable devices would be 40 mw, although the FCC asks whether it needs to accommodate 100 mw. Devices registered in the WSD database, including wireless mics, need not be considered by broadcast applicants, because presumably they are equipped to move about the spectrum as the database changes from time to time. Vacant channel availability at a given location would be determined using existing criteria governing where wireless WSD and microphones can operate.The prospect of making full power stations subsidiary in any sense to unlicensed devices provoked dissents from Commissioners Pai and O’Rielly, with Commissioner Pai also criticizing the proposal to make LPTV stations defer to unlicensed uses. The majority put its mark down, stating that the Communications Act “endow[s] the Commission with expansive powers,” including “broad authority to manage spectrum…in the public interest.” The majority also cited a subsection of Section 6403 of the Spectrum Act which provides that nothing in that section “shall be construed to…expand or contract the authority of the Commission, except as otherwise expressly provided.” In so doing, the majority opted not to cite another subsection of the same section which provides that nothing in that subsection should be read to alter the spectrum usage rights of low-power television stations.It is unlikely that any industry affected by these proposals will be happy with them. LPTV stations are already discontent with the prospect of being squeezed out of business (as Pai suggests is almost certain to happen); they are likely to object. Users of wireless microphones have underscored to the FCC at length that a single 6 MHz channel is not sufficient to meet the needs of entertainment, conference, and sports venues – as well as news gathering situations – and, moreover, that they need clean spectrum and cannot share with other unlicensed devices that operate at unpredictable locations. Likewise WSD proponents have stressed that they need more than 6 MHz of spectrum.In other words, get ready for yet another incentive auction/repack-spawned struggle.The deadline for comments has not yet been set, but will be 30 days from the publication of the NPRM in the Federal Register. Reply comments will be due 30 days after that. Check back here for updates. But the comment period is open now for those who want to file early. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 15-146 and 12-268.

In May we reported on the FCC’s decision to open up the 3.5 GHz (3550-3700 MHz) band for a wide variety of new uses, making it the new home of the new Citizens Broadband Radio Service (CBRS). As we pointed out, though, before CBRS can be cranked up, a variety of regulatory considerations still have to be ironed out, including: how to define “use” of Priority Access License frequencies; implementing secondary markets in Priority Access Licenses; and optimizing protections for Fixed Satellite Services. In its April decision the Commission included those items on its to-do list and asked for input through a Second Further Notice of Proposed Rulemaking (SFNPRM). Now that SFNPRM has made it into the Federal Register which, as we all know, means that the comment deadlines have now been set. If you want to chip in your two cents’ worth, you can file comments until July 15, 2015; the deadline for reply comments is August 14. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No. 12-354.

Commission tunes up its channel-sharing rules in advance of the incentive auction, with more to come.

Court green lights FCC use of updated software for OET-69 calculationsA seemingly small but crucial element of the FCC’s incentive auction preparations has survived a broadside attack in the U.S. Court of Appeals for the D.C. Circuit. As a result, TVStudy lives on and the auction’s approach continues unimpeded.At issue was the fact the FCC decided, in connection with the auction, to tweak the way it calculates TV station coverage areas and interference. Of course, what looks like a useful tweak to a regulator may look like a major – and harmful – overhaul to a regulatee. Luckily for the Commission, the court saw tweak rather than overhaul.The story starts, as all incentive auction stories do, with the Middle Class Tax Relief and Job Creation Act of 2012, a/k/a the Spectrum Act. That’s where Congress officially set the wheels in motion for the upcoming auction. In Section 1452(b)(2), Congress told the FCC tomake all reasonable efforts to preserve, as of February 22, 2012, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69 of the Office of Engineering and Technology of the CommissionThat may look pretty specific. In the eyes of some – most notably the NAB and Sinclair – it wasn’t.The first sign of trouble was the Commission’s announcement, in early 2013, that it was planning to use new computer software, dubbed TVStudy, in running OET-69 calculations. (For those of you just joining us, OET-69 – real name: “OET Bulletin No. 69 Longley-Rice Methodology for Evaluating TV Coverage and Interference” – is the how-to guide developed by OET over the years for predicting, through use of the Longley-Rice propagation model, local television coverage areas and population served, as well as the likelihood of interference. OET-69 is more precise in predicting the effect of terrain obstacles on signal propagation than older methods.)According to the Commission, TVStudy “runs much faster, provides greater accuracy in modeling and analysis, and is easier to use and more versatile”. Plus, it’s based on more current population data and more precise terrain data that were previously used. While all that sounds swell, lurking in the notion of “greater accuracy in modeling and analysis” was an ominous thought: a change in accuracy and analysis could result in reductions in the areas and populations to be calculated – and in fact it does for some stations. Think of TVStudy as the digital equivalent of sharpening your pencil before you draw contours in order to make them as compact as possible. (You can read more about TVStudy in our previous posts.)The NAB and Sinclair Broadcast Group, concerned about potential loss of coverage areas and audience thanks to the greater accuracy of TVStudy, objected. They argued both to the Commission and the court that when Congress ordered the FCC to use “the methodology described in OET Bulletin 69”, Congress meant the methodology in place on February 22, 2012, the day the Spectrum Act became law. Notwithstanding its supposed upsides, TVStudy was not part of that methodology and therefore could not be used consistently with the mandate of the Spectrum Act.Hold on there, countered the Commission, we’re not changing the methodology; rather, we’re using new software to implement the existing OET-69 methodology using some new data sources (such as updated 2010 Census figures and antenna beam tilt data). As the Commission saw it, the Spectrum Act did not bar the use of such software. In effect, the FCC said that the auction statute does not require protecting station coverage as it would have beencalculated in 2012. It requires using only the basic OET-69 framework from 2012, with no restriction on changing input data or the software that implements the framework, even if the outcome reduces protection for individual station.When parties are arguing about whether an agency has strayed from the direction Congress has given it, the court’s first stop is what is known as a “Chevron analysis”. The first question: Did Congress speak directly “to the precise question at issue” – that is, in this case, did Congress unambiguously foreclose the Commission’s use of TVStudy along with updated data inputs when applying OET-69? Reviewing the statutory language, the court concluded that there was no such unambiguous direction there. To the contrary, the Spectrum Act directs the FCC to get the auction done successfully, and reliance on outdated data could threaten the auction’s ultimate success. (The court seems to have been put off by the appellant’s argument that Congress must have wanted the FCC to rely on old data and slower software. In the court’s view, that notion was “counterintuitive”.)In this kind of appellate litigation, once the court is satisfied that it’s not looking at a Chevron Step 1 case – that is, that Congress has not spoken directly to the particular issue being raised – it’s usually easy sledding for the agency from there on out. If Congress hasn’t addressed the specific issue, then the reviewing court will accord the agency a boatload of deference. Pretty much as long as what the agency has done is not totally crazy, the court will affirm it. In this case, the FCC was able to convince the court that TVStudy made all the sense in the world: it’s faster and more accurate than the former software and, therefore, likely to lead to a successful auction, which is something Congress definitely wants. The court agreed.Over and above their attack on TVStudy, the appellants raised a procedural challenge and a couple of other substantive points, to no avail. The procedural point – that the planned use of TVStudy was announced by OET, not the full Commission – didn’t stop the court, which was satisfied that OET’s announcement constituted substantial compliance with the relevant rules (it was published in the Federal Register, after all, so everybody had an opportunity to comment on it). Similarly, the court had no problem with the FCC’s decisions (a) not to protect digital replacement translators – they operate on different channels from their primary station and protecting them might jeopardize the auction’s success and (b) to require completion of the repacking process within 39 months because, again, a longer time could depress values and thereby threaten the auction.The result here probably shouldn’t surprise us. After all, the subject matter – the operation of OET-69, a process which even savvy communications lawyers may not be familiar with – is highly technical. Often, judges seem uncomfortable wading into deep technical weeds, especially when, under Chevron, the agency is supposed to be accorded mucho deference. Whether TVStudy was indeed the innocent and inspired innovation that the FCC claimed or a bit of high tech high jinks, as some feared, it makes little difference now. The court has blessed TVStudy, and we will have to look forward to its implementation as the auction plays out.

FCC and net neutrality proponents win the first skirmish, but there are bigger battles ahead.The net neutrality rules will take effect while the appeals of those rules go forward. The D.C. Circuit has denied requests that the rules be stayed.What this means as a practical matter is far from clear. Whether most, some or any Internet users will notice any differences in the short run is uncertain. We shall see.But let’s take a look at what the denial of the stay really means. According to Chairman Wheeler, it’s a “huge victory for Internet consumers and innovators”. Commissioners Clyburn and Rosenworcel were only slightly less ebullient. Republican Commissioners Pai and O’Rielly were, unsurprisingly, “disappointed”.But really, what does the denial mean?Not much. As a litigator this blogger has won his share of stays and lost his share as well. While action on a stay request provides the winner a momentary psychological boost, in the long run that boost doesn’t last. In the end, the final resolution, the up-or-down decision on the merits, is generally all that counts.In order to get a stay, a party has to demonstrate (among other things) that it is likely to succeed on the merits of its case and that it will suffer irreparable harm if a stay isn’t imposed. That first element – likelihood of success – is what many folks focus on. The idea is that, if the party seeking the stay can satisfy the court that it’s likely to win, that means that that party is definitely going to win. If the stay request is denied, well, then, the appeal must be doomed.But that’s not in fact what happens.Once the warm afterglow of the stay decision wears off the winner – and the white hot resentment cools off for the loser – the appeal goes on. The briefs are prepared, all longer and more detailed than the stay papers. An oral argument is held. Not under the pressure of having to reach a decision by a deadline (i.e., before the rules are supposed to take effect), the court can delve deeply into the merits and, possibly, perceive facts, circumstances, arguments that might not have been as apparent or as persuasive in the stay papers. For sure, the decision on the stay may provide hope to the party who wins that skirmish, but it's no guarantee.And then there’s the irreparable harm factor. It’s extremely hard to demonstrate irreparable harm. Irreparable really means irreparable: The historical building is going to be destroyed; the firing squad will do its job; the documents, once disclosed, can’t be retrieved. That kind of factor is usually not present in appeals of administrative rulemaking decisions.All in all, the deck is generally stacked against any party asking for the stay, so a denial is never surprising. And even if a stay is granted, there is absolutely no guarantee that the final decision on the merits will go the same way.Further diminishing the predictive value of a stay decision, the court’s order granting or denying the stay tends not to shed any light at all. Just take a look at the D.C. Circuit’s net neutrality stay decision, the relevant totality of which reads “it is ORDERED that the motion for stay be denied. Petitioners have not satisfied the stringent requirements for a stay pending court review.” No explanation, no analysis, no language at all that might be closely parsed for clues about what might have swayed the Court. Does the Circuit's terse ruling give you a clear sense of where the case is going and why? Me neither.As often seems to happen, Commissioner Pai’s take on things may be closest to reality:Although I am disappointed that the court did not stay the rules pending its review, this development was not unexpected. The bar for granting any stay is quite high, and I am pleased that the court did not suggest that the rules are in fact legally valid.So net neutrality fans can cheer for a while, and its opponents can lick their wounds for the same while. Then it’s on to the merits. In denying the stay, the Court also agreed to speed up the merits process. The briefing and argument schedule have yet to be decided, but it seems likely that the pace will be picked up more than is usually the case. Still, the FCC order under review is staggeringly long and complex, so even if the process is expedited, we can only guess when the final decision will come down. And when it does, we can probably expect the loser to head to the Supremes.So we still have a ways to go. Strap yourselves in and enjoy the ride.

Way back in January we reported on a late-December FCC decision to revamp its equipment certification rules. Five months later, that decision has finally made it into the Federal Register. As a result, we now know when the revised rules will take effect: July 13, 2015. Equipment manufacturers and importers may want to take another gander at the FCC’s changes in advance of that date, just to be sure you’ll be familiar with them once they kick into gear.

The process of getting all the candidates lined up in the incentive auction starting gate has begun.The incentive spectrum auction process just got a lot more real. The FCC’s Eligibility Public Notice has been released and the count-down toward the required certification of facilities has begun.To date, for many of us the spectrum auction has tended to be more imagined than concrete. Sure, we’ve read a lot about it and we know it’ll almost certainly have a major impact on all of us. But we haven’t yet been required to do anything (other than, maybe, prepare some rulemaking comments or attend an FCC webinar or meeting).But that has now changed, dramatically, with the release of the Eligibility Public Notice and the accompanying list of TV stations eligible for (a) protection in the post-auction repack and (b) relinquishment in the auction.First things first. If you’re a full-power or Class A TV station, you should take a careful look at the eligibility list to see if you’re on it. If you are, get out your calendar and put a big red circle on July 9, 2015. That’s the deadline by which you must complete and file your Pre-Auction Technical Certification Form (a/k/a FCC Form 2100, Schedule 381).Next, get yourself a copy of FCC Form 2100, Schedule 381 and fill it out, a separate form for each station. We have previously given our readers a recap of the form, so if you have any questions about it, you may want to look here to refresh your recollection. You will need to access the FCC’s various databases – CDBS, Licensing Management System, Antenna Registration System, and any other information on file with the FCC relative to your station – to make sure that the representations you make in the form are accurate. But the form asks for information that you can’t get from the FCC’s database, so you will need to work with (a) an engineer who knows your on-site equipment in detail and (b) your tower owner who knows when the last structural study was done and what it involved. Once you’ve completed the form(s), you get them filed through the FCC’s Licensing Management System – NOTthe old CDBS application filing system.If, in preparing the form, you find that there is a discrepancy between your station’s facilities and the corresponding information in your authorization and/or the related FCC databases, you should include with your form an exhibit providing the correct information.If, on the other hand, you have to certify that you’ve been operating with facilities at variance from your authorization (and the FCC database info), you’ll have either to (a) get your facilities back into conformity with your authorization or (b) file for modification of your facilities and seek an STA to allow you to continue to operate with parameters at variance. But don’t count on getting those modified facilities protected in the repack: in order to get such protection, you had to have a license application to cover such modifications on file by May 29.And if, on the other other hand, you find that your station is not on the list but you think it should be, all is not lost. You have until July 9 to file a “Petition for Eligible Entity Status” explaining why you think you’re eligible. The Bureau promises to hustle up a decision on such petitions and will alert each petition of the disposition of its petition “well in advance of the reverse auction”. Practice tip: If you do file such a petition, be sure to include in the caption (i.e., at the top of the first page) the licensee’s name of the licensee, and the station’s call sign, community of license (city and state), facility identification number and channel number, along with the file number of the authorization you believe should be eligible.To paraphrase Winston Churchill, this may not be the beginning of the end, but it sure feels like the end of something. From here on in, we’ll all be sailing in largely uncharted waters. It’s time to keep calm and carry on.

We here in the CommLawBlog bunker have a new look in store for our readers. It should be ready for prime time very shortly. You’ll know it when you see it … and on the off-chance you might not, we’ll be announcing it when it happens (along with a new CommLawBlog contest!). As part of the new look, we will be changing our email notification process. Folks who already receive the emails announcing our posts will soon be receiving an email from the Blogmeister providing guidance as to what they should do to insure that they will continue to be signed up. It’s a very simple process. When that email arrives, please take the brief moment necessary to re-up your subscription in the new system. We would very much appreciate that.

Terse compliance plan does the trick, although Pandora still has some hoops to jump through.The good folks of Box Elder, South Dakota can breathe a little easier now. Soon they should be able to listen to their local radio station and not have to worry about insidious alien influences. (If they get their tunes through the Internet, however, they’re on their own.)As we reported last month, Pandora, in an effort to reduce its copyright royalty costs, has been trying for a couple of years to purchase the only radio station in Box Elder. But that got Pandora mired in FCC red tape, as the Commission tried to determine whether Pandora complied with foreign ownership restrictions. The way was finally cleared in May, when the FCC agreed to consider Pandora’s application subject to a number of conditions. (Check out our previous post for details.) At that time, the Commission held off on actually granting Pandora’s application until at least some of those conditions were satisfied.That has now happened: the Media Bureau has finally approved the assignment application, clearing the way for Pandora to become a radio station licensee.To garner the Bureau’s approval, Pandora submitted a “compliance plan” detailing steps it would take to periodically measure its foreign ownership and ensure that it did not exceed the levels approved in the Commission’s May decision. “Detailing” might overstate things a bit, since the compliance plan (available here) came in at barely a page and a half. But it was apparently enough to satisfy the Bureau, despite the continued objections of ASCAP.In the plan, Pandora outlines some of the steps it will take to monitor its foreign ownership, and commits to certifying compliance with the terms of the Commission’s May Declaratory Ruling beginning with its 2017 biennial ownership reports. (Pandora argued, successfully, that it would not be able to compile the necessary information in time for the filing of its 2015 ownership reports.)Among the monitoring steps it will take, Pandora has pledged to try revise its organizational documents to allow it to require shareholders to divulge their citizenship. Those revisions will require shareholder approval, and Pandora’s 2015 shareholders meeting was already scheduled for June 4. Because of that, the Bureau agreed that Pandora can deal with this provision at its 2016 shareholder meeting. If Pandora’s shareholders reject the changes in 2016, the company will have another chance at getting them approved in 2017. If they are rejected again, the Media Bureau intends to require Pandora to divest the station.So Pandora still has a number of steps it needs to take, but at least for the time being, it has been deemed fit to become a Commission licensee. According to the transactional materials already filed by Pandora, barring any revisions we can expect closing sometime this month. If that occurs, Pandora will actually, finally, after almost two years of waiting, become the proud owner of a terrestrial broadcast radio station. We hope it turns out to have been worth the effort.

FCC waits a year to publish formal notice needed to make porting reforms effective.One finds the strangest things while meandering through the pages of the Federal Register. Recently, for example, we noticed that the FCC had published an Order adopting certain reforms of the local number porting process. Thanks to that publication, the reforms will take effect in 30 days (i.e., as of June 25, 2015). That’s good news, since the reforms eliminate certain confusing aspects of the process of “porting” one’s phone number from one carrier to another and were broadly supported by the telephone industry and by everybody else. There was no controversy and the tweaks to the system were recognized as an all-around good thing.But hold on there. The brief six-page Order was adopted by the FCC in June of 2014! By its own terms the Order wouldn’t become effective until 30 days after Federal Register publication, so the new rules won’t become effective until more than a year after they were adopted. Those would be the rules whose value was universally acknowledged and as to which there was no controversy.Why has it taken over a year for the FCC to get these reforms into effect? No explanation for the delay is apparent in the Fed Reg publication, although the Order as it appears in the Register does seem to describe itself, mysteriously, as an “Order on Reconsideration”. That’s odd, because that reference – in Paragraph 14 of the Federal Register version – does not appear in the version of the document (official reference: DA 14-842) as originally released by the Wireline Competition Bureau. Nor is there any record of any petition for reconsideration (or reconsideration on the Bureau’s own motion) in the FCC’s online docket database for Docket No. 07-244).Ordinarily, we would shrug off the delay in getting this Order officially on the books as mere administrative inertia, but for two considerations.First, what’s up with the apparently inaccurate (not to mention misleading) reference to some phantom “reconsideration”? It appears that the Federal Register version of the Order includes three paragraphs (those would be Paragraphs 13-15) that didn’t appear in the original version. Those three are all lumped under the heading “Procedural Matters”. It’s possible, if not likely, that these were inadvertently omitted from the Order as originally adopted and that, in an effort to spackle over the omission before the item showed up in the Federal Register, somebody merely cut-and-pasted the “Procedural Matters” paragraphs from some other proceeding, not realizing that the newly-inserted material included an inapt reference to reconsideration. Whether such after-adoption liberties can or should be taken is not clear. But in any event, should the correction of that inadvertent omission have delayed Federal Register publication for a year? And wouldn’t it have been a good idea at least to acknowledge the newly-inserted material?Second, the FCC has lately been under fire (not least from some of its own members) for taking inordinately long times to get documents first released and then published in the Federal Register, thereby triggering effective dates, deadlines for appeals and reconsiderations, etc. So, despite that incentive, the delay here regrettably reflects that business as usual continues on the regulatory front.

Audio Division cracks down on permittees who construct non-compliant, less-than-permanent facilities.A broadcast construction permit comes with conventional expectations. The permittee is expected to build the facilities specified in the permit and to do so by the deadline specified in the permit; once constructed (presumably on a permanent basis), those facilities are to be utilized in the ongoing, continuous operation of the station; and a license application reporting the successful and timely completion of the construction is to be filed. Many permittees, probably the vast majority, do what they’re expected to. Others, however, try to get around the construction requirement by setting up facilities that don’t meet the specs of the permit and are at best temporary; those permittees crank up their here-today-gone-tomorrow gear briefly, so they can at least say it was operational for a while; and they then file an application for a covering license based on those facilities.The Audio Division has some bad news for folks who go that route.Faced with a permittee who had sought a license apparently based on the construction of temporary, non-compliant facilities, the Audio Division has made unequivocally clear that “temporary facilities fail to satisfy” the relevant rule regarding construction. As a result, if the staff determines that only temp facilities have been constructed prior to a construction permit’s expiration date, the permit will be deemed to have expired automatically as of that date and the erstwhile permittee will be left empty-handed.The permittee in this case held a noncommercial FM permit issued in December, 2010, with an expiration date of December 8, 2013. On December 9, 2013, the permittee filed its license application certifying that the facilities had been built and the station as operating pursuant to program test authority.But the Audio Division must have smelled a rat.On December 13 Enforcement Bureau agents (we’re guessing at the behest of the Audio folks, but we don’t know for sure) happened to drive up to the station’s general vicinity and couldn’t find the station’s signal. They reported that to the Audio Division, which asked them to double check. Four days later the field agents were back, this time using a “specialized vehicle” because of the remote location of the transmitter site. They found no evidence of any construction at the site, which was odd because the antenna was supposed to have been installed on a 60-meter tower. They also noted that there were no power lines within miles of the site, another indicator that the permittee’s license application might not be exactly accurate. The agents also determined that the site was on land controlled by the Bureau of Land Management (BLM). A check with the folks at BLM confirmed that BLM had not authorized use of the site and would not have authorized it even if asked.Responding to a Division inquiry, the permittee acknowledged that it had no BLM permission to construct at the site and that the facilities it had built were dramatically different from those specified in the permit. The permittee claimed that, using a generator for power, two 10-foot pipes, and a transmitter accessing programming through a laptop with an Internet hot spot, it had managed to get the station up and running on December 6, two days before its permit was to expire. (According to the permittee, it used – we’re not making this up – a “small dog house” to house the transmitter and generator.) Whatever facilities may have been built appear not to have been especially sturdy, because the permittee also reported that, sometime after the station supposedly started operation, that operation ended when “the wind was tumble the tower [sic]”, damaging the antenna.Given all this, we should not be surprised by the outcome.The Audio Division held that, because the construction here did not conform to the permit’s specifications, it did not constitute the required timely construction. And since the permit had expired, the permittee was out of luck and, more importantly, out of a construction permit. The ruling was premised on Section 319(b) of the Communications Act, which provides that a CP is “automatically forfeited if the station is not ready for operation within the time specified [in the CP] … unless prevented by causes not under the [permittee’s] control.” The ruling further relied on Section 73.3598(e) of the FCC’s Rules, which states that “[a]ny construction permit for which construction has not been completed and for which an application for license has not been filed shall be automatically forfeited upon expiration without any further cancellation by the Commission.”Further, the Audio Division explicitly held that the temporary nature of the construction provided “an independent and alternative basis” for its decision. In other words, even if the facilities that were constructed had technically complied with the permit’s terms, the fact that the facilities were plainly less than permanent was a separate kiss of death. According to the Division, constructed facilities are expected “to endure beyond the de minimis period necessary for it to file a license application.” Stated another way, “a facility which is dismantled shortly after a license application is filed or which is constructed without the site owner’s permission or knowledge is fundamentally inconsistent with the licensing principle.”The bottom line: “[W]e will not award licenses to permittees who have constructed temporary facilities.”While clear and unequivocal, that holding does have one possible loose end: The Division’s decision doesn’t define “temporary facilities”. Obviously, facilities consisting of a couple of pipes, a generator-driven transmitter and a “tower” that can be “tumble” by the wind fill that bill. But what about otherwise compliant facilities that the permittee may intend to replace sooner rather than later? If those facilities conform to the specs of the permit and allow the station to operate continuously, shouldn’t they be deemed “permanent” even if the permittee plans to swap out some of the component elements in the relatively short term? You might think so, but the decision is silent on where “temporary” ends and “permanent” begins, so caution is advised.In any event, all permittees should take this rigorous policy to heart. Since this decision came out of the Audio Division, it applies to radio permittees; however, the same rules technically apply to TV permittees, so it would not be surprising if the Video Division were to adopt the same approach. The FCC believes that the standard construction periods provide adequate time to complete acquisition and permanent installation of the necessary equipment. Once you’ve got a permit, it’s your job to take full advantage of the time provided. Remember, while permit expiration dates may be tolled under certain extraordinary circumstances, the Commission stopped granting extensions of construction periods back in the last century.And there’s plenty of incentive to get the facilities built out before expiration. Failure to do so means loss of the permit – which necessarily entails loss of any and all time, effort and money that went into obtaining the permit in the first place. If you cared enough to get the permit in the first place, you should care enough to finish the job.Of course, there will probably always be some folks who prefer to take chances and play a bit fast and loose, figuring that they won’t get caught. The Division’s decision here suggests that the staff may now be on the look-out for such players. “(The permittee in this particular case seems to have been on the staff’s radar already because of problems with other LPFM applications which had been dismissed for various reasons; those applications prominently involved an individual who was similarly involved in the permittee here. We suspect that that factor increased the staff’s skepticism in this case.) The chances of getting caught appear to be on the rise. That’s one more good reason not to roll the dice.[Blogmeister's Note: This post has been updated since its original publication to clarify the apparent relationship between the permittee and the dismissed LPFM applications referenced in the final paragraph.]

Just in time for the Memorial Day weekend, the FCC has released its proposed regulatory fees for 2015. Now we all have something to mull over during all those boring parades, fireworks shows, baseball games and cook-outs. Lucky us!As usual, the proposed fees are set out in a Notice of Proposed Rulemaking (NPRM ) in which the FCC solicits comments on the proposals, as well as some other incidental matters relating to the fees. While the final figures (usually adopted in July or early August, payable in late August or September) may vary here and there from the proposed fees, generally any changes can be expected to be minor. Still, the NPRM gives one and all an opportunity to comment on the proposals before they get etched in stone (although many may question the utility of trying to sway the Commission on the fee front).For TV folks, reg fees appear to be stabilizing. Prior to last year, you may recall, the Commission had two separate TV fee schedules, one for VHF, the other for UHF. That differential treatment was tossed out in 2013 (effective with the 2014 reg fees). That led to some rough water on the UHF side – and smooth sailing on the VHF side – last year: VHF licensees noticed a substantial drop in their fees (as much as 48% for some), while UHF licensees suffered a major uptick (running from 15% to 30%). This year the proposed TV rates are proposed to remain largely where they were last year, with only modest (1% - 4%) increases. The only exception: FM/TV Translators and boosters and LPTV licensees, whose fees will go up 6% -- but, since last year’s fee was only $410, that amounts to only a $25 hike to $435.On the radio side, no changes are proposed at all. Since none were made last year, either, that means that, if the current proposals are adopted, the radio industry will not have seen any increase in reg fees for three straight years.And good news for all broadcasters. Historically the FCC has exempted “de minimis” fees, but it has defined “de minimis” as anything less than ten bucks. As a result, broadcasters have chronically been stuck for payments for their remote pickups, STL’s and other such auxiliary licenses, each of which required a $10 fee. But last year the FCC upped the “de minimis” level from $10 to $500. As a result, this year the longstanding $10 broadcast auxiliary fee is gone.We’ve prepared a handy table listing the proposed fees (and last year’s TV fees, for comparison purposes) – you can check it out here.When it comes to paying, remembers that last year the Commission imposed an all-electronic payment requirement: no cash or checks accepted. That’s still true this year, but heads up. Thanks to our pals at the U.S. Treasury, the maximum payment that will be permitted to be charged to a credit card will be $24,999.99. (This edict came out last year, effective this June.) The old limit was $49,999.99. The new limit applies to single and bundled payments. If you owe more than $24,999.99, you will not be permitted to split it up into multiple payment transactions, nor will you be permitted to pay it over several days by using one or more cards. The FCC recommends that anyone looking at a fee obligation of $25,000 or more consider debit cards, Automated Clearing House (ACH) debits from a bank account, or wire transfers.In addition to the fees themselves, the NPRM sets out various other proposed changes, several of particular interest.First, the Commission wants to know whether it might be time to reexamine the apportionment of fees among broadcasters. That could involve a recalculation of the number of FTE’s (that’s FedSpeak for “Full-Time Employee” or “Full-Time Equivalent”) devoted to radio vs. the number devoted to television in order “to more accurately take into account factors related to ‘the benefits provided to the payor of the fee by the Commission’s activities’”. Such a recalculation could lead to readjustments of the overall fees to be collected from both the radio and TV sides.Second, along the same lines, the FCC is wondering whether the ways in which fees are apportioned within each of the radio and TV sectors should be revisited. On the TV side, fees have historically been assigned according to market ranking; on the radio side, the allotment is based on both population served and type/class of service. The Commission asks for comments on whether these criteria need to be adjusted in any way. Possibilities suggested by the Commission: assess radio fees based on market rather than population served; consolidate the radio categories and reapportion radio fees merely as a function of market rank or population served. The good news is that, even if the Commission eventually opts for some type of reapportionment, the result would not take apply to FY 2015 fees.Third, the Puerto Rico Broadcasters Association (PRBA) has asked the Commission for relief for Puerto Rican radio broadcasters because of “significant population declines” and other economic factors, including unprecedented unemployment and low per capita income.The Commission is not unsympathetic to PRBA’s request. While the FCC is not inclined to reassess Puerto Rico’s population every five years as opposed to every ten years – the necessary information is available from the U.S. Census only every ten years, and anyway, such population statistics would not likely affect things because reg fee calculations don’t occur at that “granular” level – the Commission does ask whether the circumstances described by PRBA might warrant either:

A one-time only broadcast leads to a “multi-state cascade” of false alarms … and a big penaltyWe have previously reported on the FCC’s crackdown on the misuse of EAS tones, a crackdown that has thus far resulted in more than $2.5 million in penalties. No, wait – make that more than $3.5 million, thanks to a Consent Decree by which the Commission has extracted a cool $1 million from the coffers of iHeartCommunications for yet another violation of the Commandment Against Non-Emergency EAS Broadcasts.Unlike previous instances in which the EAS tones were improperly used in advertising (presumably to get the audience’s attention), this time the problem is the fault of syndicated radio host Bobby Bones. In October, 2014, Mr. Bones was engaged in “commentary” about an interruption in his viewing of Game 2 of the World Series. Apparently the cable system on which he had been watching the game ran its monthly EAS alert during the game, presumably to Bones’s displeasure. While we didn’t hear the broadcast, we’re guessing that, to illustrate just how annoying and disruptive an EAS alert can be, Bones played the EAS tones – but not the tones as they were heard during the baseball game. Instead, he used a recording of the EAN Event code from the November, 2011, nationwide EAS test.The mere broadcast of the tones in a non-emergency context would ordinarily have been enough to fetch a hefty fine. (Anyone who doubts that should take a quick look at Section 11.45 of the Commission’s rules). But there was more. Bones’s show is carried on more than 70 stations. A number of EAS participants downstream from those stations didn’t have their own EAS gear set to recognize the November, 2011 date of the EAN Event code, so they responded as though it were a real live EAS message, which they dutifully retransmitted to other EAS participants further downstream.The result: “a multi-state cascade of false EAS alerts”. Oops.The downstream meltdown should not have been a surprise. As we have reported (with a link, to boot), our friends at the Society of Broadcast Engineers warned us all several years ago that the use of EAS header tones can trigger EAS gear at stations downstream in the EAS system, putting the public in danger.The FCC has zero tolerance for that kind of thing, as you might have figured from the amount of the iHeart penalty. In 2014 ESPN got nailed for airing a spot for “Olympus Has Fallen” that happened to include a faux EAS tone a total of 13 times over three cable networks. That miscue cost ESPN $280,000. At the same time, Viacom aired the same spot 108 times over seven networks. It got spanked to the tune of $1.12 million. By contrast, Mr. Bones’s boner occurred once. But it went out over more than 70 stations and it had that pesky cascading effect. iHeart may figure that it got off easy by keeping the damage to $1 million.Back in 2013 we provided an emphatic reminder to broadcasters and cable networks, a reminder which we repeated in 2014. Looks like it’s time for the 2015 version:The rationale for the ban on non-emergency broadcast of EAS tones is obvious. Broadcasters (and cable programmers) who air fake EAS attention signals are, in effect, “crying wolf” and thereby undermining the integrity and effectiveness of the EAS system. If the public can’t be sure whether a particular announcement is real or fake, the public may not recognize truly dangerous situations until it’s too late. And as noted above, the use of EAS header tones can cause EAS gear to lock-up at stations downstream in the EAS system, resulting in unnecessary danger.The bottom line: Don’t broadcast EAS attention signal tones, or anything that might be confused with such tones, except in connection with an actual emergency or an authorized EAS test. As irresistible as the impulse to use EAS tones might on occasion be – since those tones are designed to get the audience’s attention, an effect that advertisers and (apparently) syndicated announcers, crave – it must be resisted.While the iHeart Consent Decree contains no real surprises, it does provide us with a closing take-home message. In addition to forking over one mil, under the Consent Decree iHeart is required to develop and implement a three-year compliance plan that will (at least in theory) prevent a recurrence. One element of that plan: iHeart must “make reasonable best efforts to permanently remove all simulated or actual EAS Tones” from its systems for digital storage and playback of audio content. All stations may wish to take the same step now. That way, if the temptation to broadcast EAS tones creeps up some day, it’ll be that much harder to succumb in a moment of weakness.

The FCC plays an important, if little known, role in railroad safety.In the aftermath of this week’s tragic Amtrak train derailment in Philadelphia, the issue of Positive Train Control (PTC) – previously a subject familiar only to relatively few – has burst into the public consciousness. PTC is a technology that likely would have prevented the accident had PTC been functioning in the Philly portion of the Amtrak line. While we here at Fletcher Heald & Hildreth are not railroad lawyers, we do know a lot about PTC, because PTC requires spectrum to function, and the FCC – an arena with which we are very familiar – is the go-to agency when it comes to spectrum. We have been working for a number of years with one of our rail carrier clients to obtain spectrum for implementation of PTC.PTC systems are designed to monitor train activity, prevent train collisions and worker injuries, and enhance public safety. PTC is a spectrum-based technology: radio devices located onboard a train transmit and receive data to and from radio devices installed along the track and at network operations centers. The components of the system onboard each train automatically monitor the train's speed and location with respect to the area in which the train is authorized to travel. Through this complex flow of real-time information, PTC systems can manage track congestion and improve safety by imposing limits (e.g., speed, location) on trains while they are in motion. PTC is also designed to provide a wide range of additional safety-related functions: for example, it can continuously monitor and report train diagnostics, issue alarms (about, for example,broken rails and incorrect switch alignments), and monitor radio transmissions from “wayside” systems.Public safety is, of course, a primary concern for any operator of a train system, and robust, reliable, advanced telecommunications capability is a critical tool for insuring safe operations. Congress recognized this back in 2008, when it enacted the Rail Safety Improvement Act (RSIA) mandating the implementation of PTC on major freight and passenger railroads by December 31, 2015. In so doing, however, Congress stopped short of insuring that all the necessary resources would be available to railroads: while the RSIA mandated the implementation of PTC, it didn’t set aside the spectrum necessary to get the job done. Rather than require the FCC to specifically allocate spectrum to support PTC, Congress left that decision up to the Commission, which has chosen not to make such an allocation. As a result, railroads have been left to identify and obtain both the necessary spectrum – usually from non-railroad entities that had previously licensed it for other uses – and the necessary authorizations from the FCC.It has been a long and frustrating process for many carriers … but it can be done.We here at FHH were greatly saddened at the injuries and loss of life that resulted from this week’s Amtrak accident. That tragic incident underscores the urgent need to complete the implementation of PTC as quickly as possible. For our part, we remain dedicated to helping our clients obtain the spectrum authorizations they need to achieve that goal. When that process is completed, it will be one of our most satisfying accomplishments.

We recently reported that the destination of the appeal of the FCC’s “Open Internet” decision might be up in the air because parties had sought review in three different U.S. Courts of Appeals. That would normally mean that a random drawing would have to be held to determine which Circuit would get the nod. But the FCC was taking the position that an earlier drawing – in which the D.C. Circuit had been selected – should control, even though the FCC was simultaneously arguing that the appeals that had triggered that earlier drawing were fatally premature and should be tossed.Potential crisis averted! The two petitioners who went to non-D.C. Circuits have now advised their respective Circuits that they’re cool with having their appeals transferred to D.C. Those would be Alamo Broadband, Inc. (which filed in the Fifth Circuit) and a group of four petitioners led by Full Service Network (which filed in the Third Circuit). That appears to eliminate any lingering question of venue, so all concerned should now be able to focus on the merits.Oh, wait, we forgot to mention the stay requests.Since the appellate process is not necessarily quick, the FCC’s net neutrality rules are set to take effect long before any decision can be expected out of the courts. So, in order to keep the new rules from kicking in before the appeal process wraps up, folks unhappy with the new rules are asking to have the effective date stayed pending conclusion of that process. They asked the FCC (as they are supposed to do under standard appellate procedure) and – to nobody’s great surprise – the FCC declined to stay the effectiveness of the rules. Next stop: The D.C. Circuit. On May 13 seven petitioners filed a joint stay request with the Court. The FCC now has until May 22 to respond.The Court’s disposition of the stay request should come reasonably quickly. When it does, it may provide a hint of the Court’s preliminary leaning. In order to get a stay, a party must demonstrate (among other things) that it is likely to prevail on the merits. So if the Court were to grant a stay, it would be saying, in effect, that it believes that the petitioner has a good shot at getting some or all of the new rules tossed. Of course, a grant of the stay request would not necessarily mean that the petitioners will ultimately prevail, nor would denial of the request mean that the FCC is for sure going to prevail. But in the absence of other indicators, kibitzers look to this kind of thing for possible tip-offs about what may be in store.And one additional observation: Things are getting crowded in United States Telecom Association v. FCC, Case No. 15-1063, which is the lead case in which all the separate net neutrality appeals have been (and will presumably continue to be) consolidated. At last look, there were a total of 10 separate appeals and nearly 20 intervenors. The deadline for filing petitions isn’t until June 12, so we can probably expect those numbers to grow. To paraphrase Chief Martin Brody, they’re gonna need a bigger courtroom.Check back here for updates.

Three-day program in San Francisco will feature FHH’s Harry Cole along with other eminent FCC practitioners providing insight into All Things FCC.Attention, all you Friends of CommLawBlog!If you’re looking for an excuse to travel to San Francisco in late June, look no further. The American Conference Institute is presenting an “FCC Boot Camp” program there from June 22-24. And CommLawBlog’s own Harry Cole will be among the featured speakers.The curriculum covers a wide range of topics, from the basics of FCC jurisdiction and the Commission’s role in various regulatory areas to helpful practice tips and even a “Master Class on Net Neutrality, Politics, Policies and Rules”. You can learn about the Commission’s enforcement procedures, equipment authorization process, spectrum policies, interactions with other state and federal regulators, and more. Harry’s presentation will focus in particular on the FCC’s regulation of video services, from traditional broadcasting to cable and satellite. He’ll even take a look at the proposal to redefine MVPD to include Over-the-Top providers. (For a copy of the official brochure with all the details, click here.)Joining Harry on the faculty will be more than 20 other eminent practitioners ready to provide attendees a strong working knowledge of core FCC competencies. If you’re looking for a good way to immerse yourself in All Things FCC with a top-notch roster of presenters ready to make that immersion as useful (and as painless) as possible, this FCC Boot Camp should be ideal.And get this: CommLawBlog readers can get a $200 break on the registration. Just click on this link to get to the official registration site and enter your special Priority Service Code (that would be 774L15.S) and your Special Discount Promo Code (that would be FHSPK), and claim your $200 discount! (You can also register by phone at 888-224-2480.)Beyond that, we’ll be sure that Harry brings along a supply of our much-coveted CommLawBlog sunglasses. He’ll totally hook you up with a pair if you ask.

Our regular readers know that the FCC has developed – and obtained OMB approval of – Form 2100, Schedule 381. That’s the form that will have to be completed and filed, at some point in the upcoming months, by (a) all full-power and Class A TV licensees entitled to mandatory protection in the upcoming incentive auction as well as (b) those with Commission-afforded discretionary protection.Schedule 381 started to take shape last December, when the FCC sought comment on it – even though the draft of the form about which comments were sought was a bit hard to track down. (When we managed to get a copy of the draft, we provided a link to it for everybody’s ease of access.) As we reported last month, the Office of Management and Budget signed off on the form in late March, but still the only available copy of the form appeared to be the Word version buried on OMB’s website.That’s changed. The FCC has now formally released Form 2100, Schedule 381. And it did so in connection with a public notice reminding full-power and Class A licensees of the upcoming May 29 Pre-Auction Licensing Deadline.We, of course, had already reminded our readers of that deadline, but an extra heads-up never hurts. That’s especially true in view of the importance of both the May 29 deadline and the Certification Form. (Take a look at our last post on the topic if you’re unsure of what’s involved here.)And we’ll take this opportunity to again urge anybody who expects to be filing Form 2100, Schedule 381 to review the form carefully NOW and to take any steps NOW that might be useful to insure that, when the time comes to file it, there will be no problems in getting it accurately completed and filed. The form will be due 30 days after the FCC releases its “Eligibility Public Notice” listing the facilities eligible for both protection in the repacking process and relinquishment in the reverse auction. That list will be based on the technical information on file in the FCC’s database as of May 29, 2015. While the precise date of the Eligibility Public Notice has yet to be announced, we do know that it’s expected shortly after the May 29 Pre-Auction Licensing Deadline, which obviously is right around the corner.Consider yourself reminded.

Appeals, reconsiderations, judicial lotteries – there’s never a dull moment when it comes to net neutrality.Just because the FCC finally released its behemoth Report and Order (R&O) in the net neutrality proceeding last month, don’t think that the fun and games are over. Not by a long shot.Au contraire, the battles rage on … and they will soon be waged in two separate arenas, the FCC and one or another U.S. Court of Appeals. As might be expected, we’re already seeing new twists and turns that may further complicate an already complicated proceeding.When the FCC releases a decision, folks unhappy with the decision generally have two obvious options: they may go back to the FCC and seek reconsideration, essentially trying to convince the Commission to change its mind; or they can run to an appropriate U.S. Court of Appeals, in which case they are asking the court to tell the FCC that its decision was in some way(s) flawed. In a rulemaking proceeding (like net neutrality), it’s not unusual for some disgruntled parties to take one approach which others take the second approach.And that’s the way things seem to be shaping up here.The R&O was formally “released” on April 13. As we reported, that meant petitions for review (filed with the courts) would have to be filed by June 12. (It also meant that petitions for reconsideration (addressed to the FCC) would have to be filed by May 13.) And as we also reported, any would-be appellant who preferred to have the appeal heard in a particular Federal Circuit had to jump through a number of special hoops by April 23. Since folks seeking review (whether in the Commission or the courts) routinely wait until the last available minute to file, we won’t know for sure exactly who has joined the fray back at the FCC for some time (as of May 9, at least, the FCC’s ECFS system was not showing any petitions for reconsideration on file). If one or more petitions are filed – and it’s pretty much an odds-on mortal lock that some will seek recon – any court appeals might be held in abeyance pending disposition of the reconsideration petitions. That, however, is not invariably the case. We’ll just have to wait and see.On the appellate side, we do know for sure that a number of appeals have been filed already, presumably by folks itching to lock down their preferred circuit.As we reported last month, two petitions for review were filed – one in the D.C. Circuit, one in the Fifth Circuit – even before the R&O was officially released. The FCC dutifully submitted those to the Judicial Panel on Multidistrict Litigation (JPML), which pulled the D.C. Circuit ping pong ball out of the Official Lottery Drum. (Interesting factoid: We understand that the JPML has a permanent set of ping pong balls, each officially printed with the number of one circuit, for use on occasions such as these. The balls for the Sixth and Ninth Circuits not only have their numbers underlined – indicating which side is up and which is down – but each spells out “Sixth” or “Ninth”, to insure that there is no possible mistake in the result of a drawing involving both those circuits. But we digress.) The Fifth Circuit then transferred its case to the D.C. Circuit, where the Commission has moved to dismiss both of those petitions as prematurely filed. This was expected.But since the formal release of the R&O, a total of 10 more petitions for review have been filed, eight in the D.C. Circuit, one in the Fifth Circuit, and another in the Third Circuit. All theoretically qualified for another JPML drawing.But the Commission is taking the position that the initial JPML drawing – triggered by the two supposedly premature petitions – is the only drawing that needs to be done. As a result, the FCC believes that the net neutrality appeal will have to be heard in the D.C. Circuit. We know this because the Commission has moved to transfer the new Third and Fifth Circuit petitions back to D.C. (From the FCC’s motion, it looks like the Fifth Circuit petitioner may be gearing up to oppose that transfer; it’s not clear what the Third Circuit petitioner plans to do.)We here in the CommLawBlog bunker confess that this is a first for us, so we can’t reliably predict whether the D.C. Circuit has already locked down this appeal, or whether a new drawing will be held. It does strike us, though, that the FCC’s approach may have some holes. After all, the Commission is taking the position that the two premature petitions for review must be dismissed because no court had jurisdiction to hear them (thanks to their prematurity). But if no court had jurisdiction over those premature petitions, how could a JPML drawing based on such facially invalid petitions for review be deemed to be binding on petitions that were not premature? Doesn’t that unfairly prejudice the Third Circuit filers who, by waiting until the appropriate time to file, have (in the FCC’s view) lost any opportunity to have the appeal heard in their circuit of choice?We’ll presumably have a better sense of how this will all shake out in the next several weeks. But for now, at least, it appears clear that the FCC would be happy to have the D.C. Circuit hear the appeal. That would explain the Commission’s interesting litigation gambit with respect to the recently filed Third and Fifth Circuit petitions.Why would the FCC prefer D.C.? Perhaps because, even though the Commission’s net neutrality efforts did not fare well there the first two times, the FCC’s most recent “Open Internet” effort was ostensibly designed to follow directions implicit in the D.C. Circuit’s last net neutrality decision. The Commission may therefore be figuring that, if it can convince the D.C. Circuit that the FCC’s latest iteration tracks the D.C. Circuit’s Verizon decision closely enough, that may do the trick. By contrast, if the Commission were to have to defend its R&O before a circuit whose views on net neutrality have yet to be articulated, the Commission would likely be far less confident that the court might be sympathetic to its approach. It’s a variation on the “Devil you know” conundrum.Meanwhile, several parties have asked the FCC to stay the effectiveness of the new rules. If the FCC denies those requests – as it likely will – those parties may head to court to try to get a stay there. Which court? The D.C. Circuit is an obvious choice, but if the whole question of a second JPML lottery gets traction, we wouldn’t be surprised if the Third and/or Fifth Circuits get drawn into the festivities.As always, check back with CommLawBlog for further developments.

Alien ownership conditions imposed on Internet radio service when it tries to buy small-town radio stationThis is the story of how Pandora, in an effort to cut its copyright royalty costs, managed to saddle itself with a complex array of ownership reporting requirements designed by the FCC to keep Box Elder, South Dakota safe from aliens. It’s a true story.Pandora, of course, is the prominent Internet music streaming operator. Since its business consists of transmitting recorded music digitally, it’s on the hook for a lot of copyright royalties payable, through ASCAP, BMI and SESAC, to the composers of the music it transmits. The precise rates it pays are generally subject to direct negotiation between Pandora and the performance rights organizations (PROs).In contrast to Pandora and other streaming services that are limited exclusively to Internet distribution, radio broadcasters do not have to negotiate individually with respect to royalties. Rather, broadcasters’ rates are set industry-wide through negotiations between, on the one hand, the Radio Music License Committee (RMLC) acting on behalf of broadcasters and, on the other, the various PROs. (The federal courts are also involved in the process to a degree.) Those negotiations have been good for traditional over-the-air broadcasters, who as a result pay lower royalties for their own digital transmissions than do Pandora and other Internet-only services. And those lower rates apply even if the broadcaster’s stream(s) carry content other than what the broadcaster is sending over-the-air.Pandora has been involved in acrimonious negotiations, and even litigation, with ASCAP regarding its royalty rates. But then it had an idea: why not take advantage of the attractive over-the-air broadcaster rates by simply becoming a broadcaster?And so it was that Pandora came to Box Elder (pop. 7,800), where the only local radio station in town was for sale.After cutting a deal to buy the station, Pandora filed an application for approval of the acquisition. In that application it was upfront about its motivations for purchasing the station, i.e., it was looking, among other things, to lower its copyright royalty burden. Not surprisingly, the application drew opposition from ASCAP.In its Petition to Deny, ASCAP argued that Pandora’s proposed acquisition was essentially a sham to attempt to obtain better royalty rates. Perhaps recognizing that this argument by itself was unlikely to persuade the FCC, ASCAP also challenged Pandora’s compliance with the Commission’s ownership rules. Specifically, ASCAP alleged that Pandora had failed to properly disclose all of its ownership; more importantly, it alleged that Pandora had failed to show that it complies with the FCC’s limits on foreign ownership in broadcast licensees.The Communications Act limits direct foreign investment in broadcast licensees to 20% and indirect ownership by foreign entities to 25%. While these limits are frequently waived for non-broadcast licensees, they have long been essentially hard and fast rules for broadcast licensees. Although the Commission has in recent years indicated a willingness to loosen the limits for broadcasters on a case-by-case basis, that willingness has not yet evolved into any actual loosening.The alien ownership charge posed considerable problems for Pandora – not necessarily because it was in violation, but because it couldn’t prove that it wasn’t in violation. That’s because it’s a publicly traded company whose stock is widely held by companies or individuals, some foreign, some not. For a number of reasons it was impossible for Pandora to determine with confidence the nationalities of all of its shareholders.Nevertheless, it tried. Initially, Pandora submitted a NASDAQ survey of a sampling of its stockholders’ mailing addresses, which showed foreign ownership of around 16%. It argued that its Board of Directors was composed entirely of U.S. citizens, and that eight of ten of its executive officers were also U.S. citizens, greatly reducing the possibility of foreign influence or control over broadcast operations. That wasn’t enough for the FCC, primarily because mailing addresses aren’t necessarily a reliable indicator of nationality.Pandora then tried a second approach based on an analysis of SEC filings by its shareholders. That study showed that around 18% of its voting interests might be held by foreign individuals or entities. The FCC still wasn’t satisfied because this alternate approach measured only voting interests, rather than equity interests. The Communications Act limits foreign ownership of bothtypes of interests.Finally, Pandora gave up. It acknowledged that it couldn’t prove the level of its foreign ownership to the FCC’s satisfaction, in part because of SEC regulations designed to protect shareholders. Those regs prevent Pandora from requiring its shareholders to disclose their citizenship. (While the organizational documents of most publicly-traded broadcast companies include provisions requiring shareholders to waive this SEC protection, Pandora’s did not – because it had never been a broadcaster and thus hadn’t had to worry about this sort of thing.)Still confident that its foreign ownership was well under the limit but unable to demonstrate compliance with the FCC’s rules, Pandora asked the FCC for a declaratory ruling. Specially, it asked the Commission to confirm either that: (a) foreign investors could hold up to an aggregate 49.99% voting interest and 100 percent equity interest in Pandora’s parent company without additional FCC approval; or (b) in processing Pandora’s application, the FCC would use the policy it routinely applies in the common carrier context. That latter option would permit 100% foreign equity and voting interests without prior Commission approval, subject to certain conditions.After cogitating on all this for the better part of a year, the Commission finally agreed to cut Pandora some slack. In so doing, it blew past ASCAP’s arguments about how Pandora is just trying to get better copyright royalty rates. As far as the FCC is concerned, Pandora’s motivation has nothing to do with the foreign ownership rules, which were, after all, the sole focus of Pandora’s declaratory ruling request. And anyway, the Commission said, if ASCAP thinks that Pandora’s acquisition of a station will undermine the existing copyright licensing regime, ASCAP should take that up with some other agency, or maybe Congress, or maybe the courts – but not the FCC.As far as Pandora’s alien ownership is concerned, the Commission concluded that the information submitted by Pandora had “not raise[d] immediate concerns regarding foreign influence or control”. That was the good news for Pandora.The bad news was that, in order to make sure that aliens don’t sneak in and take over Pandora, the FCC imposed a long list of rigorous requirements on it. As a result, if Pandora wants to become a broadcast licensee, it will have to:obtain prior Commission approval before any foreign citizen or entity obtains a greater than 5% equity or voting interest (10% for certain institutional investors). Prior approval will also be required before (a) Pandora’s aggregate foreign ownership (equity or voting) can exceed 49.99%, or (b) foreign citizens comprise a majority of the Board of Directors.amend its certificate of incorporation, bylaws or other corporate documents to ensure that it can determine its levels of foreign ownership and otherwise comply with the other terms of the Declaratory Ruling. Those amendments must provide Pandora not only the right to require disclosure of its shareholders’ citizenship, but also the right to “take any and all actions that the Board of Directors deems necessary to so comply or cure any noncompliance”, including (but not limited to) the right to compel the redemption of shares held by aliens.monitor its foreign ownership percentages and, with every biennial ownership report, certify to its continued compliance with the conditions set out in the Declaratory Ruling. The Commission provides six suggested monitoring methods.submit to the Commission, within 90 days, a list of steps it has taken, or plans to take, to ensure compliance with all of these condition. That submission must also include a detailed description of the methods Pandora plans to use to determine its foreign ownership percentages. If the Commission approves that submission, the terms described by Pandora in that submission will themselves become part of the conditions of the Declaratory Ruling.So Pandora has its work cut out for it. And get this: Pandora’s application still hasn’t been granted. In fact, processing of the application won’t even pick up again until Pandora has satisfied the various conditions described above. So while Pandora’s petition for a declaratory ruling may technically have been granted, Pandora still has a ways to go before it can become a broadcast licensee.And all of this effort is intended to prevent Box Elder’s only radio station from falling under the control of aliens. Really?As Commissioners Pai and O’Rielly observed in separate concurring statements, this decision highlights flaws in the Commission’s treatment of foreign investment in broadcast licenses. Had Pandora been trying to acquire a license in some other regulated service – including, say, wireless licenses giving it access to the bazillions of smartphones in everyone’s hands – its foreign ownership levels could have been approved presumptively, without the need for exhaustive, and in Pandora’s case unavailable, documentation. The FCC’s insistence on such documentation here is especially bizarre in view of the fact that (as Pai points out) the available evidence indicates that Pandora already meets the existing alien ownership limits.And let’s not forget that, whatever Pandora’s foreign ownership might be, Pandora already provides its Internet service to more than 79,000,000 Americans (according to Commissioner Pai). So if Pandora’s foreign interests do indeed have some insidious and malevolent plan afoot, it’s possible that Box Elder is the only place where Pandora could not, right now, this instant, implement its nefarious little plan.So the extensive hoops that Pandora will have to jump through just to get its application processed seem a bit silly. But at least the FCC didn’t simply slam the door on Pandora. The Commission’s willingness, however heavy-handed and begrudging, to leave the door slightly ajar does suggest a continued openness to the relaxation of its approach to broadcast alien ownership, relaxation that the Commission promised a couple of years ago.In the meantime, we can only hope that, if Pandora does eventually acquire its Box Elder station, the resulting savings in copyright royalties will make it all worthwhile.

FHH had the pleasure of participating in Thurgood Marshall Academy’s Shadow Day Program, which provides students from the D.C. Charter School the opportunity to meet with local attorneys and get a sense of what being a lawyer is all about. We were visited by sophomore Christina Price (pictured at the left, sporting her CommLawBlog shades), who spent the day with FHH attorneys, watching us work. It wasn’t all boring; Christina was also treated to a primo viewing spot on the rooftop patio of our building where she could see the Arsenal of Democracy Flyover in honor of the 70th Anniversary of V-E Day.Christina is interested in going to law school, but she’s got lots of other interests as well that might win out.Thank you to Christina for coming to visit, and to the folks at Thurgood Marshall for including us in their great program!

Making good on the Chairman’s promise, the FCC is looking for input into Unlicensed LTE and LAA.As we recently reported, when the Commission created the new Citizens Broadband Radio Service which will use the 3.5 GHz band, Chairman Wheeler promised to open a separate docket in which folks could “file their perspectives” on LTE-Unlicensed (LTE-U) and Licensed Assisted Access (LAA) technology. And sure enough, the Office of Engineering and Technology and the Wireless Telecommunications Bureau have promptly issued a Public Notice (PN) seeking comment on “current trends” in that technology.LTE-U/LAA presents one of the most controversial aspects of the future unlicensed use of the 3.5 GHz and 5 GHz bands. That’s because LTE-U/LAA is designed to use some of that same spectrum, spectrum which is viewed by Wi-Fi proponents as vital to handling ever increasing Wi-Fi traffic.The PN seeks information on LTE-U/LAA “technologies and the techniques they will implement to share spectrum with existing unlicensed operations and technologies such as Wi-Fi that are widely used by the public.”The PN suggests ten topics for comment, including:

The new top level domain that many love to hate is now available to registered trademark holders – but pretty soon it’ll be open to everybody else.We told you to expect it, and now it’s happening: new generic Top Level Domains (gTLDs) are becoming available almost daily. (Fuzzy on gTLDs? Check out our post from last year for more background.) Now would be a good time for businesspeople to focus on the new gTLD that many love to hate – .SUCKS.Dot-SUCKS is currently in its “Sunrise Period”. That’s important if you’ve got a registered trademark, because that means that you’ve only got until May 29, 2015 to take advantage of your rights as a registered trademark holder. The “Sunrise Period”, of course, is the time during which trademark owners who have registered their marks in ICANN’s Trademark Clearinghouse can get first dibs on registration of their mark in the .SUCKS domain. After the Sunrise Period closes (on May 29), registrations will be on a first-come/first-served basis and your trademark registration won’t necessarily help you out if somebody else – a competitor, a disgruntled former employee, an unsympathetic consumer advocacy group, etc., etc. – happens to get in line ahead of you.So if you (a) hold a registered trademark and (b) want to keep anybody else from signing up for “[Your Trademark].SUCKS”, NOW is the time to act. Don’t worry, you won’t be the first. Far from it: a convenient ticker running on the website of Vox Populi Registry (the folks who run the .SUCKS registry) indicates that the following big names have already signed themselves up: XBOXLIVE, GUITARCENTER, CITIBANK, PLAYTEX, WALMART, UNDERARMOUR, VISA, TUPPERWARE, among lots of others.According to Vox Populi (Latin for “voice of the people”), .SUCKS is intended to create an Internet space “for raw consumer commentary and corporate interests to cohere … enabl[ing] the benefits of the dialog without dampening its usual initial vehemence… [and] mak[ing] it even easier for consumers to find, suggest, cajole, complain and engage on specific products, services and companies.” Vox Populi’s website includes a short video that features stirring audio and video clips of Martin Luther King and Ralph Nader, with the latter proclaiming that “the word ‘sucks’ is now a protest word.”Notwithstanding those lofty goals and renowned soundbite sources, it’s obvious from its pricing structure that Vox Populi recognizes that registered trademark holders likely have a serious interest in keeping the “theirtrademark.SUCKS” domain out of unfriendly hands. Folks wishing to avail themselves of the Sunrise Period opportunity will be charged $2,499 for the “standard” option. (There’s also an individually priced “Premium” option.) A bit pricey, but after the Sunrise Period goes away, .SUCKS domains can be had for $249, or possibly even less than $10. (The $10 rate would be limited to applicants willing to agree to use the domain only to resolve to a website forum devoted to discussion of the product in the domain name.) So it may be expensive for the registered trademark owner to tie down its domain name now, but it’ll be relative peanuts for anybody else – including the aforementioned competitors, disgruntled former employees, etc., etc. – when the .SUCKS gTLD is opened for general availability. While that pricing structure has been criticized by a number of folks, there doesn’t appear to be any change in the immediate offing.So there is clear incentive for registered mark holders to tie their .SUCKS domains down now, rather than risk having them scooped up on the cheap by others.And while we’re at it, let us remind you that new gTLDs are being rolled out every week by ICANN. As we have explained in previous posts, it’s a very good idea for you to be proactive in protecting your trademarks and other key identifiers as well as exploring the new business venues that these top level domains will open.Why? Because of obvious promotional and protective reasons. First, the new gTLDs present new marketing and other opportunities for you and your company to take advantage of. New gTLDs will include a host of terms likely to offer more readily identifiable domain names for your business than .COM (where desirable domain names have long-since disappeared) and new opportunities for online marketing – think ROCK.RADIO and COUNTRY.MUSIC. Opportunities to expand your brand and your business will be plentiful.Second, the risk that your established identity – as reflected in your trademarks, catch phrases, call letters, etc. – could be diluted if others secure domain names using these valuable properties should be obvious. As discussed above, many businesses want to register their names in .SUCKS and .PORN before someone else does – concerned that there might be a threat to their online reputations if someone else obtains these domain names first. (Whether aggrieved trademark holders may have anti-cybersquatting or other remedies available is beyond the scope of this post.)As things currently stand, a myriad of top level domains are opening for Sunrise Registration this month, including .MARKETS, .NEWS, .CAFE and (the long-awaited) .BANK. Again, .SUCKS will be in its Sunrise Period until May 29 and open for General Availability on June 1 at a registrar near you. .PORN (whose Sunrise Period has already closed) will be available for general registration on June 4. Open .XXX domain names, which have been available for some time, currently sell for $99.99 on GoDaddy.As always, we are ready to help you and your business navigate the thicket of these new top level domain challenges and opportunities. Just contact Kathy Kleiman, Bob Butler, Kevin Goldberg or Jon Markman for assistance.

Thanks to the Paperwork Reduction Act, the public file rule is out for comment … againThe Paperwork Reduction Act strikes again! As we all know, the PRA requires the FCC to get clearance from the Office of Management and Budget for “information collections” the FCC wants to impose on its regulatees. OMB clearances have a shelf-life of three years, meaning that the Commission has to truck on back to OMB every three years to re-up previously issued clearances.Those of you with reasonably long memories may see where this is heading.Three years ago was when OMB last approved the Commission’s local public inspection file (and related political file) rules for broadcast and cable operators. (Those rules may be found at §§73.3526, 73.3527, 73.1943 and 76.1701.) And sure enough, the FCC has now solicited comments on those rules yet again as part of the process necessary to secure another three-year OK from OMB.We reported on the 2011 proceedings back when they first got started. You may want to take a look at that report, because not much has changed this time around. The Commission is again inviting comment on several boilerplate questions, including:(a) whether the public file rules are “necessary for the proper performance of the functions of the Commission, including whether the [collected] information shall have practical utility”; and(b) whether the Commission’s burden estimate is accurate.As to that “burden estimate”, the numbers continue to amuse and amaze. Recall that in 2011 the Commission estimated that 52,285 respondents (providing a total of 52, 285 responses) would require anywhere from 2.5-109 hours to comply with the public file rules, resulting in a “Total Annual Burden” of “1,831,706” (the 2011 notice didn’t put any units on that total burden estimate, but we figure it probably referred to hours) and a “Total Annual Cost” of (are you sitting down?) “none”.This time around, the corresponding estimates are: 24,558 respondents (providing a total of 63,234 responses); one hour to 104 hours per response; “Total Annual Burden” – 2,375,336 hours; “Total Annual Cost” – $882,236.If these numbers look a bit odd to you, join the club.The number of respondents this year is down more than 50% from 2011, but the number of responses is up by more than 20%. While the time per response has gone down, the Total Annual Burden has skyrocketed by almost 30%. And how about that estimated “Total Annual Cost”? It has shot from “none” (which is where it had been pegged by the FCC in 2008, too) to $882,236. And let’s not forget that in 2008, the Commission included an estimate of the “Total Annual ‘In-house’ Cost” – $37,469,148. How that might have been squared with the “Total Annual Cost” figure of “none” was never explained. The 2011 and 2015 notices have not provided “Total Annual ‘In-house’ Cost” figures.The OMB website reflects that, in 2011, a number of broadcast groups submitted comments. While those did not succeed in getting the kibosh put on the rules, they may have had some impact: we heard off-the-record reports that the folks at OMB had a bunch of questions for the Commission before approving the rules then. As it turns out, that approval contained the proviso that “[d]uring the period before the next three-year renewal, the FCC will continue its work to modernize and streamline the inspection file requirement.” And in 2012 (when OMB had to consider some proposed tweaks to the public file rules – a proposal which also attracted considerable broadcaster comments), OMB specified in its approval that, going forward, the Commission would have to “review and take into consideration submitted comments regarding the burden placed on affected entities and where necessary, propose possible revisions to the associated information collection to reduce unnecessary burden while continuing to maximize the practical utility of the information requested from respondents.”So it’s at least possible that the comment opportunities provided by the PRA may not be entirely useless after all.The public file rule might serve some valid purpose – but, since the Commission has never done anything to investigate the validity of that proposition, nobody can say for sure. It’s probably safe to assume that the FCC is not enthusiastic about launching such an investigation on its own. (As we have previously observed, the Commission has ignored for nearly a decade a petition for rulemaking filed by our friend, communications attorney David Tillotson, challenging the validity of the public file requirement.)But the Paperwork Reduction Act requires the Commission to justify rules like this every three years, so we all have another chance to make the case: do the public file rules serve a useful purpose, are the FCC’s burden estimates valid and, if so, does the supposedly useful purpose justify the supposedly valid burdens? And let’s not forget: the Commission must satisfy the OMB that the FCC’s assessment is correct.In other words, anyone who has any thoughts about the public file should take advantage of this opportunity to articulate them to the FCC. The Commission will be accepting comments through July 6, 2015. After that, the Commission will bundle up any and all comments submitted and send them over to OMB, along with a statement in support of the rules (assuming that the Commission is not persuaded by the comments to drop the rules entirely). OMB will then provide an additional 30-day comment period. If OMB declines to approve the rules, the FCC will be unable to enforce them.

Back in March we reported on a number of changes that the FCC had adopted with respect to its rules governing Travelers’ Information Stations. Those changes have now found their way into the Federal Register, so we all now know that the revised rules will take effect on June 4, 2015.

Unusual developments in Federal Circuit trademark case bode well for Dan Snyder and company.For years the NFL franchise associated with Washington, D.C. has been a laughingstock on a number of fronts. Image-wise, both on the field and off, it’s hard to beat them for comedic source material. Here in the CommLawBlog bunker, though, we tend not to focus on things like team record (a .350 winning record over five years – if only that were a batting average, they’d be heading for Cooperstown!), dubious management decisions and the like.But we have covered at least one aspect of the team’s notoriety: its name. As we reported last year, some folks filed petitions to deny at the FCC objecting to a renewal application for a radio station that happened to be owned by a company controlled by Daniel Snyder, the team’s owner. In the petitioners’ view, the team name “Redskins” is so offensive that it warrants denial of license renewal. Ouch.The FCC had the good judgment to reject the petitions. But the name debate has raged on elsewhere, most notably in the Patent and Trademark Office (PTO), where a number of Native Americans have been waging a years-long battle to have the registration of the mark “Redskins” cancelled because it’s disparaging to, um, Native Americans. Most recently, they made considerable headway: last year the Trademark Trial and Appeal Board ruled that the mark is indeed disparaging, and it cancelled the mark’s registration, a move that threatens the team’s exclusive right to use the name and certain associated trademarks). [Blogmeister’s Note: Our blogger, Kevin “the Swami” Goldberg, is too modest to mention this, but we aren’t. You can catch a recording of him analyzing the decision for the local CBS TV affiliatehere.] Mr. Snyder and company have taken the case to the United States District Court for the Eastern District of Virginia, where it’s currently pending.Which brings us to the Slants.The Slants are an all-Asian, “ChinatownDanceRock” band formed in 2006 and fronted by Simon Shiao Tam. In 2010, Tam decided it was time to register the band’s name as a trademark. As it happens, though, federal trademark law expressly permits rejection of a proposed registration if the mark “disparages” people (as well as institutions, beliefs or national symbols). Tam’s first application was rejected by the PTO Trademark Examiner, who concluded that the name “Slants” disparages people of Asian descent, even though Tam pointed out that he and his band are themselves Asians. Tam re-filed his application in 2011. The Examiner again concluded that the mark is disparaging. On review, the Trademark Trial and Appeal Board agreed.That conclusion is important for Dan Snyder because, but for that “disparagement” provision, there probably wouldn’t be any basis for challenging the “Redskins” trademark.Back to the Slants. Tam appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit, arguing (among other things) that the “disparagement” provision of the law is unconstitutional. In an opinion authored by Circuit Judge Kimberly Ann Moore, a three-judge panel of the Court affirmed the rejection of Tam’s application because “Slants” disparages Asians.So that’s good news for the Native Americans and bad news for Snyder when it comes to the “Redskins” mark, right?Not so fast.Tacked onto Judge Moore’s 11-page opinion for the Court is a separate 24-page item, also penned by Moore, titled “additional views”. And in those “additional views”, Judge Moore explains in considerable detail why she thinks it’s time to take another look at the supposed constitutionality of the “disparagement” provision.Say what?It appears that Moore and her two colleagues OK’d the rejection of the Slants application because Federal Circuit precedent supports the constitutionality of the “disparagement” provision. That, of course, was entirely consistent with the well-established concept of stare decisis, which provides that courts should generally follow their own precedent.As Judge Moore explains in her “additional views”, however, the hoary Federal Circuit precedent which the panel was following was based on the traditional view that trademarks are “commercial speech” not entitled to any First Amendment protection. But times have changed and commercial speech has gradually been accorded increasing constitutional protection. To the extent that trademarks are “commercial speech”, they should be entitled to that protection.Further, contrary to the Federal Circuit’s previous holdings in this area (the primary one of which dates back several decades), denial of a trademark registration does impose the loss of several significant legal rights and benefits – e.g., the right to exclusive use of the mark, a presumption of validity of your trademark rights, the right to sue. The government’s ability to deny such rights and benefits imposes a chilling effect ostensibly intended to discourage the use of supposedly “disparaging” marks because of the marks’ content. In general, such chilling effects raise serious First Amendment problems.Moreover, requiring a mark to be non-disparaging appears (to Judge Moore, at least) to impose an “unconstitutional condition” placed on speech. While the government is entitled to define the limits of a program when it appropriates public funds to establish that program, the government cannot attach conditions that seek to leverage funding to regulate speech outside the contours of the program itself.And finally, Moore notes that the “disparagement” provision permits registration of marks that refer to a particular group in a positive manner, but does not permit registration of marks that do so in a negative manner. That smacks of viewpoint discrimination, which makes the law presumptively invalid. And there are no countervailing “substantial interests” which might justify the bar against disparaging marks. At most, the bar reflects a desire to disfavor certain unpopular messages, which violates the “bedrock principle underlying the First Amendment … that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”In other words, as Moore sees it, a lot has changed on the landscape encompassing trademarks and the First Amendment since the Federal Circuit last considered the constitutionality of the “disparagement” provision in depth. While she stops slightly short of declaring that provision unconstitutional, you can tell where she’s heading. And she does expressly announce that, in her view, it’s time for the Federal Circuit to “revisit” this issue. If the rest of her Federal Circuit confrères were to agree, the validity of the “disparagement” provision would be seriously in question, which would be good news for (a) Mr. Tam and (b) Mr. Snyder.And what do you know. A mere week after the three-judge panel (led by Judge Moore) had – notwithstanding her stated reservations – concluded that “The Slants” had properly been rejected for trademark registration, the full Federal Circuit – acting on its own motion – has vacated that panel decision. The full Court has set the matter for an en banc hearing on the specific question:Does the bar on registration of disparaging marks in 15 U.S.C. § 1052(a) violate the First Amendment?While the vacation of the panel decision and the setting of an en banc proceeding don’t necessarily mean that the “disparagement” provision is toast, that’s not a bad bet. En bancs don’t happen every day; sua sponte en bancs are even rarer; and sua sponte en bancs that pop up only a week after the panel opinion being reviewed are about as rare as a winning season at FedEx Field. So Mr. Tam has reason to be optimistic about his chances. And that means that Snyder and his team should be equally optimistic about their chances.The “Redskins” case is pending in the Eastern District of Virginia (and presumably heading from there to the Fourth Circuit, rather than the Federal Circuit). Should the PTO’s Slants decision get overturned by the en banc Federal Circuit – with the “disparagement” provision getting tossed as unconstitutional – the District Court (even one in a different Circuit) could be convinced to follow suit in the Redskins case. (Of course, if the Federal Circuit were to go one way on the issue and the Fourth Circuit the other way, that would set up what we in the biz refer to as a “circuit split”. That’s the kind of thing that often leads to review by the Supreme Court. A trip to the Supremes would be the legal equivalent of making it to the Super Bowl®, which would presumably give Mr. Snyder the type of thrill he has yet to – and doesn’t seem likely to – experience in the football universe.)Why would Judge Moore take the extraordinary step she took – tacking on “additional views” that seem to contradict her own opinion? Who knows? Maybe this was, in her view, the most appropriate way to honor both the strictures of stare decisis and her own personal commitment to First Amendment values.Or maybe it’s because, according to Wikipedia, Judge Moore, a Maryland native, is “a big fan of the Washington Redskins.” And maybe, just maybe, she’s sick of their losing.In any event, even though Dan Snyder has not (as far as we know) been involved in any way with Mr. Tam and the Slants, his prospects for success on the trademark front are suddenly looking a lot rosier. Perhaps this is what he and his organization mean when they claim that they’re “winning off the field”.

Class A deadlines remain in effect.Last October, we wrote about FCC proposals looking toward the future of Low Power Television (LPTV) stations after the upcoming incentive spectrum auction and associated repacking the TV spectrum into a smaller number of channels. One of the FCC’s proposals was to defer the September 1, 2015, deadline for LPTV stations and TV translators to complete construction of digital facilities and to terminate analog operation. The FCC tentatively concluded that it should grant that relief, because LPTV licensees should not be forced to invest in new facilities until they know whether they will be able to find channels after the spectrum repack.While the FCC’s overall LPTV rulemaking has not yet been wrapped up, the Media Bureau has now announced an immediate suspension of the September 1, 2015, deadline for LPTV and TV translator stations. As a result, those stations may, if they wish, continue to transmit analog signals indefinitely, until the FCC says otherwise. There is no need to file applications to extend the expiration date of granted digital construction permits; in fact, the FCC does not want to have to deal with extension applications.The suspension applies ONLY to the expiration date of construction permits for an existing analog LPTV or translator station’s initial digital facilities. This includes both flash-cuts from analog to digital on the same channel and permits to build companion digital stations on a different channel. The extension does NOT apply to the expiration date of construction permits for modification of facilities of stations that are already on the air with digital signals. Those permits still expire on the date indicated on the face of the permit.The suspension also does NOT apply to any Class A stations. Class A stations are still subject to two deadlines: (a) They may not transmit analog signals after September 1, 2015, and (b) their signals will be protected in the spectrum repack only as the signals are authorized as of May 29, 2015.Analog Class A stations that have not completed construction of digital facilities by May 29, 2015, will have only their licensed analog coverage protected in the repack. To obtain protection for their digital coverage area (which is usually larger than the analog area), they must have completed construction and filed an application for license to cover their digital construction permit by May 29; it is not necessary that the license application have been granted by that date.If a Class A station does not complete digital construction by May 29, it will still be subject to the September 1 deadline for all Class A stations to complete digital construction. Under appropriate circumstances, a six-month extension of the September 1 deadline may be requested; but extension applications must be filed by May 1, 2015, to take advantage of a lenient evaluation standard. After that, extensions will be granted only where the circumstances delaying construction are beyond the station’s control and were not reasonably foreseeable – a standard that is strictly applied.So LPTV stations and TV translators may choose whether to complete digital construction now or wait in limbo and see how the chips fall after the repack. Class A stations must get a move on it and enter the digital world by May 29 to get protection for their digital facilities; and even if they don’t make that deadline, they will still have to exit the analog world forever by September 1 (or at least file an extension application by May 1 if they can’t make the digital transition by September 1).Stations that go dark because of inability to complete digital construction by the later of September 1 or their extended deadline (assuming that they request and are granted an extension) must notify the FCC within 10 days of going dark, file a request for authority to remain dark after 30 days, and get back on the air no later than one year after they go dark. Some rulemaking commenters have requested a change in the policy that calls for immediate license expiration for stations off the air more than a year. However, that policy is based on Section 312(g) of the Communications Act. While the FCC may have some limited discretion to waive that provision, the FCC will not generally do so.

Citing raft of errors, NAB urges suspension, overhaul of database requirementsThe television white space (TVWS) database system, intended to increase the efficient use of TV spectrum, is a mess, according to the National Association of Broadcasters (NAB). Because of that, the NAB has asked the Commission to suspend operation of the system until the “serious design flaws” in the system can be fixed. The FCC is thinking about the NAB’s proposal, and has solicited comments on it.The TVWS database system has been an ambitious undertaking since Day One. The idea, of course, is that there is some TV spectrum everywhere that is not being used at any one time by any licensed operator. Such spectrum can be put to good use by various low-power unlicensed devices (dubbed TV band devices, or TVBDs). But how is a TVBD user supposed to know where, when and what spectrum can be used? Enter the database.As designed by the Commission, the TVWS database is supposed to include information about all licensed TV spectrum users (a universe that includes TV stations, some wireless microphones and various other users) and all fixed, unlicensed TVBDs. Operators of fixed, unlicensed TVBDs have to provide detailed information about their facilities – including, e.g., the location of the transmitter and contact information for the operator – before commencing operation. Without accurate location information, it would be impossible to determine which frequencies would be available because it would be impossible to determine whether the proposed TVBD would be close enough to a licensed user to cause interference. And without accurate contact information, neither the Commission nor licensed operators encountering interference would be able to reach the unlicensed operator to correct the problem. The other information required for the database is similarly essential to interference-free operation in the TV band.Maintenance of the database has been delegated to a number of private entities, several of which have already been approved by the Commission to serve as database administrators. But, under the well-established GIGO principle, even the best administrator is only as good as the data it is given. And, according to the NAB, the data coming in from fixed TVBD operators is sketchy at best.Sites specified by some fixed TVBD operators reportedly include: (a) places 50 miles from Quito, Ecuador, and 500 miles from Cameroon (the latter happened to be in the middle of the Atlantic); empty fields; the middle of the street; a water tower in Peru, Indiana, even though the supposed height of the TVBDs registered at that site was only about six feet. TVBD user identifications aren’t much better: “Sue Q. Public”, “John Doe” and “John Smith” all showed up, along with “NoneNone”, “first_last” and, in the case of 80 TVBDs, “Meld test”. Trying to reach TVBD registrants to get better information is difficult when they list: (a) email addresses such as “none@none.com”, “john@doe.com” or “name@gmail.com”; (b) mailing addresses such as “456 Main Street, Anytown, USA”, “123 Jump Street, Richmond, VA” or simply “addr”; and (c) phone numbers including “232-555-1212”, “408-111-1111” and “999-999-9999”. Some TVBD registrants have apparently provided fake FCC ID numbers and device serial numbers.Obviously, the available data are less than reliable. That’s the bad news. The good news is that, for whatever reason, the TVWS database is still relatively limited: only about 550 fixed TVBDs have been registered so far. (Sidenote: The fact that the database administrators don’t have a common total for such devices is another indication of the dubious reliability of the system. According to two administrators – i.e., Google and Spectrum Bridge – 558 fixed TVBDs had been registered as of one date; iConnectiv, a third administrator, put the number at 621 for the same date. Since databases are all supposed to be harmonized daily, this discrepancy is obviously problematic.)Because the TVWS system is so limited, the NAB figures that now would be an excellent time for the Commission to put the system on hold for a while and clean it up with new, more stringent rules. Any clean-up effort will almost certainly be more complicated as the database grows. In particular, the NAB would have the Commission: (a) require all TVBDs, mobile and fixed, to incorporate geolocation capability; and (b) beef up the rules to provide “real and effective accountability” when it comes to data entry. That latter suggestion would involve, among other things, mandatory confirmation, by the database administrators, of at least the “facial integrity” of incoming data. Whether the Commission will agree remains to be seen.For now, the FCC has invited preliminary comments on the NAB’s proposal. Comments are due by May 1, 2015. Once any incoming comments are reviewed, the Commission may issue a Notice of Proposed Rulemaking, or it may not. If you think that the NAB’s concerns warrant FCC action, now would be a good time to let the Commission know.

With the deadlines for FM Auction 98 now on the books, the Commission has also announced that it will not accept ANYcommercial or noncommercial minor mod applications between May 18 and May 28, 2015. That’s the filing window for short form (Form 175) applications for Auction 98.These freezes are standard operating procedure when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process. So if you have any intention of filing for a minor mod in the near term, you’d best be sure to get it filed before May 18 or be prepared to cool your heels for ten days until the freeze thaws on May 28.For more information on the auction itself, see our related posts here.