CommLawBlog

New bills would force the FCC to examine, on an expedited basis, possible Wi-Fi and other unlicensed use of 5.9 GHz band.As a general rule, the FCC is in the driver’s seat when it comes to spectrum management in the U.S. But that doesn’t mean that Congress can’t, and won’t, occasionally engage in some aggressive backseat driving. And so it is that several members of Congress have reintroduced legislation – S.424 in the Senate, H.R.821 in the House – strongly suggesting the direction the FCC should take with respect to the 5.9 GHz band (i.e., 5860-5925 MHz). The bills would require the FCC to “provide additional unlicensed spectrum in the [5.9 GHz band] under technical rules suitable for the widespread commercial development of unlicensed operations in the band”, provided that the Commission first determines that such use won’t cause harmful interference to existing licensees of that band. The bills also provide detailed specifications, and an accelerated timetable, governing how the FCC must make that determination.If this sounds familiar, that’s probably because an essentially identical proposal was introduced last year. No action was taken on it then, so it’s been reintroduced.Under the detailed schedule set out in the bills, the FCC would have to:

TVMLC settlement with SESAC gets the thumbs up from judge; important forms to be sent to participating stations to get the refund process rollingIf you’re a full-power TV operator in the U.S. (or its territories) and you obtained a performance license from SESAC any time after January 1, 2008, make sure you keep an eye out for a form you’re likely to receive from the Television Music License Committee (TVMLC) or its attorneys entitled “Settlement Antitrust Class Action Settlement Refund Payments.”Fill it out, return it, pass GO, collect much more than $200 and roll again. (Note: Stations own or operated by Univision or Telefutura (now UniMas) or any station that opted out of the settlement don’t qualify. We suspect that you know who you are.)The settlement in question resolves claims made by the TVMLC against SESAC. I’ve already written in considerable detail about the settlement itself, so if you’re at all hazy on the details, take a look at my earlier post. As I reported last November, the TVMLC and SESAC had reached a settlement agreement and submitted it to Judge Paul A. Engelmayer, the federal judge presiding over the case.The mere fact that the parties had resolved their differences was not the end of the story; the judge had to sign off on the deal, too. So a court-issued Notice was circulated giving any malcontents the right to protest the settlement terms or opt out. This was followed by a hearing held on February 18, 2015 – and one day later Judge Engelmayer sealed the deal in an Opinion and Order. With that, if you’re a qualifying station, the money will now start coming your way once TVMLC crunches some numbers.The bulk of the Opinion and Order is legal mumbo jumbo addressing certain necessary issues, like whether the class was properly certified (it was), whether the settlement was “fair, adequate, and reasonable, and not a product of collusion” (no problem there, either), whether the plan of allocation was also “fair and adequate” (yup), and whether the contemplated attorney’s fees and costs make sense (they do).But really, most affected TV licensees are probably far more interested in another set of questions, like:Who gets paid? Any full power television station in the United States or its territories who obtained a performance license from SESAC at any time after January 1, 2008, unlessthe station is owned and operated by the Univision or Telefutura (now UniMas) networks or the station opted out of the settlement.What do they get? Each qualifying party will get its pro rata share of a total pay-out pool of $42.5 million fund. That figure represents “the alleged artificially inflated license fees paid to SESAC since 2008 as a result of the alleged anti-competitive conduct”. (To be completely accurate, the $42.5M represents about 73% of the overall damages to be paid by SESAC; the rest is going elsewhere – you know that the lawyers have to get their cut.)When will they get it? While the settlement has been approved, it’s still going to take some months to get the money flowing. The “plan of allocation” requires that the TVMLC determine, first, the total license fees paid by each individual station to SESAC between 2008 and 2013 and paid or payable to SESAC for 2014, and second, each station’s pro rata share of the total license fees, paid or payable to SESAC during these period. The TVMLC will then distribute to station owners. If more than 1% of the total settlement fund is left over after the first distribution, lather, rinse and repeat. (On the off-chance that either of the first two distributions leaves funds amounting to 1% or less of the settlement, that residue stays with the TVMLC. )This process is supposed to start within 60 days. It will kick off with the TVMLC reaching out to stations to gather the preliminary information from which to do the necessary calculations. Again, television stations should keep their eyes out for a document entitled “Settlement Antitrust Class Action Settlement Refund Payments.”The form allows participating stations to tell the TVMLC who to write the check to, so it needs to be dealt with … and fast – the completed form is supposed to be returned within 10 days after it’s sent out to the stations.

We recently reported on the FCC’s proposal to revise its broadcast ownership reporting requirements to permit all attributable interest holders to utilize a “Restricted Use FCC Registration Number” (RUFRN) in connection with both commercial and noncommercial broadcast ownership reports (FCC Forms 323 and 323-E, respectively). The RUFRN would largely replace the Special Use FRN which the Commission invented in 2009-2010 when its initial plan – which would have required all individuals listed in commercial ownership reports to identify themselves with Social Security Number-based FRNs – ran into some rough sledding. The Notice of Proposed Rulemaking has now been published in the Federal Register, which triggers the deadlines for comments and replies. If you are itching to file comments, you’ve got until March 30, 2015; replies may be filed by April 13. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 07-294 and 10-234.

Last week we reported on a Notice of Proposed Rulemaking (NPRM) issued by the Federal Aviation Administration relative to the operation of “Unmanned Aircraft Systems” – what the rest of us out here in the Real World would refer to as “drones”. The NPRM has now made it into the Federal Register, so we know that comments in response to the NPRM are due by April 24, 2015.

After nearly a decade, the FAA advises that it is no longer pursuing a proposal that would have inserted it deeply into the regulation of FM stations.For years, the Federal Aviation Administration has toyed with the idea of regulating use of some portions of the spectrum – including particularly the FM band (approximately 88 MHz–108 MHz) – even though conventional wisdom says that such matters are statutorily (not to mention logically) controlled by the Federal Communications Commission. The FAA backed down from these aspirations to some degree in 2010, but in doing so it sniffed, in effect, that we all hadn’t heard the last from it on this point.Now, five years later, the FAA appears to have thrown in the towel. In a three-sentence letter to the FCC’s Office of Engineering and Technology, the FAA has advised that it is “no longer pursuing the proposed frequency notification requirements for FM radio stations” which it has long had its regulatory eye on.Ideally, this means that the FAA has finally abandoned any hope of affirmatively regulating FM radio transmission facilities.In fairness, the FAA’s interest in that particular chunk of the spectrum is not by any means crazy. Modern aviation systems – both on-board aircraft and on the ground, particularly in the vicinity of airports – use radio spectrum for a variety of important purposes, including communications and navigation. As it turns out, the FM band bumps up against aeronautical frequencies: it’s immediately adjacent to a band (108-137 MHz) used by the FAA. Since FM stations generally operate at power levels far greater than FAA equipment, the chances that FM stations might cause electromagnetic interference to nearby FAA facilities are not trivial. The result could be inaccurate navigational guidance to the pilot – showing the aircraft to be on course when it’s not – or interference to air-to-ground communications. We can all agree that such results are best avoided.The FAA for decades sought to insert itself into the process of authorizing broadcast stations, primarily through its acknowledged control over towers near airports. This led to considerable tension with the FCC and many broadcasters (as well as other spectrum users). It’s one thing for the FAA to regulate the height of towers and other structures that might get in the way of aircraft landing and taking off. It’s another for the FAA to assert that it can or should dictate the geographical areas in which certain radio frequencies may be operated.In 2006 the FAA opened its own proceeding looking to expand its regulatory control over spectrum use. It wanted to require, as part of its Determination of No Hazard process, notice of most any change to any station operating on a wide range of frequencies. New or modified structures that would hold RF generators using those frequencies, changes in channels, power increases of 3 dB or more, antenna modifications, etc., etc. – everything would have to go through the FAA first for its blessing. And without that blessing (in the form of a Determination of No Hazard), the change would not be permitted.The potential for bureaucratic delays was huge, as was the potential for inter-agency confusion and inconsistency.In 2010, the FAA decided that it wouldn’t pursue its proposed changes, so it withdrew the proposal for required pre-construction notice for all frequencies other than the FM band (88.0-107.9 MHz). The question of FM spectrum was left open, to be resolved amicably by the FAA and the FCC. The FAA indicated that it would deal with that question “when a formal and collaborative decision [between the FAA and the FCC] is announced.”No such “formal and collaborative decision” has been announced in the intervening five years, which would suggest that the matter has since remained under discussion. Indeed, in a 2012 Notice of Proposed Rulemaking and Order, the Commission expressed “concern” that the issue remained unresolved. Partly in response to the FCC’s concern – albeit three years after that concern was expressed – the FAA has now tersely but explicitly stated, without elaboration, that “the FAA is no longer pursuing the proposed frequency notification requirements for FM radio stations operating in the 88.0-108 MHz frequency” associated with its 2006 rulemaking.If true, that would mark the end of the protracted turf battle between the FAA and the FCC. We add the “if true” qualifier because we’re not aware of any “formal and collaborative decision” between the two agencies having been announced. The FAA’s letter provides no supporting citation to any particular order (or other document) in which the FAA might have unilaterally reached this decision. A search of the FAA’s website turned up no evidence of any such formal, unilateral decision on the FAA’s part.Still, we do have the FAA’s recent letter, which says what it says. That’s at least something.

VerStandig lawsuit tossed on technicalities.Will geofencing really provide webcasting broadcasters a shield that they can deploy against royalty claims? While that question was raised in a lawsuit last spring, it won’t be getting answered soon: the case has been dismissed … for the time being, at least. Thanks to considerations that many may view as “technicalities”, U.S. District Judge Michael F. Urbanski tossed the suit filed last April by Verstandig Broadcasting. But he did so “without prejudice”, meaning that the core question remains unanswered and may still be raised, and resolved, in a later suit.As we have previously reported, “geofencing” is a technology that, in theory, permits a webcaster to limit access to its programming based on the physical location of the computers receiving the webcast. It works by checking the “receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses”.Why would that give a webcasting broadcaster a way around webcaster royalties?Because of Section 114 of the Copyright Act. That section provides a limited exemption from performance royalties arising from the digital transmission of sound recordings. While broadcasters are exempt from performance royalties for their broadcast programming, they’re still on the hook for royalties for recorded performances that they retransmit on the Internet, i.e., digitally. But thanks to Section 114(d)(1)(B)(i), broadcasters are exempt from performance royalties for digital retransmissions of their broadcast signals as long as those retransmissions don’t go “more than a radius of 150 miles from the site of the radio broadcast transmitter”.Historically, many – probably most – folks figured that that 150-mile exemption applied only to what we may think of as conventional “retransmission” mechanisms: retransmission of broadcast signals by a cable system or an over-the-air translator or booster. But, VerStandig reasoned, if a radio station’s webcast signal can be prevented from reaching listeners beyond 150 miles of the station’s transmitter, why shouldn’t the royalty exemption apply there as well? Not necessarily a bad argument.But, as it turned out, VerStandig aimed its lawsuit at the wrong target and pulled the trigger a bit too soon.In asking for a court order confirming its reading of Section 114, VerStandig named SoundExchange as the sole defendant. It presumably reasoned that SoundExchange, which serves as the collection agent for webcasting copyright royalties, would be an appropriate target. It reasoned wrong, at least as far as Judge Urbanski was concerned.In Urbanski’s view, VerStandig was looking for a ruling protecting it from claims of copyright infringement. Such claims may be brought only by copyright holders, not by SoundExchange, which is merely the copyright holders’ agent for collection purposes. So VerStandig should (in the Judge’s view) have sued not SoundExchange, but one or more copyright holders in a position to sue VerStandig for infringement. Since SoundExchange was the only named defendant, Urbanski concluded that he could not in any event provide the relief sought by VerStandig.Moreover, VerStandig hadn’t even deployed geofencing technology, so it couldn’t demonstrate that that technology would in fact prevent its digital stream from being received beyond the 150-mile perimeter. VerStandig did have a bunch of experts who claimed that it would work but, in the Judge’s view, VerStandig had “done little or nothing to demonstrate that geofencing is anything more than a pipe dream.”Constitutionally, federal courts have the authority to decide matters only when there is some actual “case or controversy”. That normally requires that there be some concrete, definite, immediate dispute between the parties before the court. Here, Judge Urbanski concluded that there was no real dispute between VerStandig and SoundExchange. And he further concluded that the basis for VerStandig’s claim – i.e., that geofencing would keep the digital signal within 150 miles of the transmitter – was far from established. In other words, as presented by VerStandig, this lawsuit did not pose a “case or controversy”, and it had to be dismissed.Fans of geofencing shouldn’t view this as a final defeat by any means. Urbanski’s decision clearly leaves the door wide open for another case – maybe even filed by VerStandig – directed against a proper defendant and supported by a more persuasive showing relative to the effectiveness of geofencing. Will some broadcaster take this up (possibly with the assistance of geofencing suppliers, who might consider providing their gear at a deep discount to a broadcaster willing to fight the fight)? And if some such lawsuit gets filed and the concept of a geofencing-base exemption gets traction, will Congress be inclined to step in to eliminate that notion? We’ll keep an eye on things. Check back here for updates.

Spoofing tactic appears to backfire on robocaller.As a public service, we offer a couple of helpful CommLawBlog tips to folks who feel like violating the Telephone Consumer Protection Act (TCPA) by making unsolicited prerecorded advertising calls:

Commission proposes technical adjustments to help remote pickup operations enter the digital age.It looks like broadcasters’ Remote Pickup (RPU) operations may finally be getting pushed into the digital 21st Century. In response to separate petitions filed by the Society of Broadcast Engineers (SBE) and the Engineers for the Integrity of Broadcast Auxiliary Services Spectrum (EIBASS), the Commission has issued a Notice of Proposed Rulemaking and Order (NPRM/O) resolving a couple of RPU-related questions and proposing a number of changes to the RPU rules.An RPU, of course, is one type of Broadcast Auxiliary Station. RPUs are used to send program-related information – including programming – from remote sites back to the station or network. They operate in one of three bands which are either shared with PrivateLand Mobile Radio Services (PLMRS) or close to PLMRS frequencies. Back in 2002 the Commission took steps to “harmonize” RPU standards and PLMRS standards in the hope that broadcasters would use PLMRS gear, which tends to be more spectrum efficient (largely because PLMRS gear is digital).But that hope has been frustrated by a couple of practical problems.For example, PLMRS operations – walkie-talkies, vehicle dispatch, two-way communications, etc. – use narrowband transmission and, therefore, don’t provide the higher audio quality (with no delay) that broadcasters need for audio program feeds.No problem. The Commission concluded in 2002 that broadcasters could combine, or “stack”, the narrower channel segments to create wider band segments more suitable for their purposes. But that proved to be a less than ideal solution: The RPU rules require that RPU licenses specify the “channel center” on which the station will operate, and when you stack an even number of channel segments the “center” of the resulting stack does not match up with any of the center frequencies specified in the RPU rules. According to both SBE and EIBASS, this anomaly has discouraged broadcasters from using stacked segments; each offered suggestions for clearing up the anomaly.As far as the Commission is concerned, though, no change is necessary because the rules already address the stacking of even numbers of channel segments: in such situations, the applicant merely specifies a center channel which is half-way between the lowest and highest frequencies in the stack. Problem solved.SBE also noted that the determination of center channel can result in a frequency specified out to six decimal places, e.g., 455.496875 MHz, a degree of precision not easily achievable with most analog equipment. The Commission addresses that concern by observing that, as long as the broadcaster complies with applicable emission masks and programs its center frequency as closely to the specified center frequency as the equipment will allow, that will be deemed to be in compliance.Another factor may have discouraged broadcaster use of PLMRS equipment: under the FCC’s rules, RPU operation must be in analog, not digital, mode. But most PLMRS gear is designed for digital use. Both EIBASS and SBE urged that the analog limitation on RPUs be tossed so that RPUs could use any form of digital modulation (as long as the broadcaster complies with the applicable emission mask and bandwidth emission requirements). The Commission is on board with that suggestion, and is now seeking comment on how best to implement it.SBE also asked for an interim blanket waiver to permit all RPUs operating in the VHF or UHF bands to operate digitally using FCC-certified narrowband RPU equipment right away. The Commission wasn’t willing to go that far, however. Until various questions concerning digital RPU operation are resolved in this proceeding, the FCC is reluctant to jump the gun and permit such operation industry-wide. (One open question: Digital RPU operation would also require changes to the station identification requirements; the Commission is looking for comments on how best to handle that. Another open question: Should digital use be permitted in the HF RPU band?)And finally, the FCC agrees with SBE’s observation that the need for 100 kHz RPU channels is a thing of the past. Accordingly, it proposes to eliminate such channels in the future. Existing authorizations for 100 kHz channels would be grandfathered indefinitely, and new such authorizations might be issued on a case-by-case waiver basis.Deadlines for comments and reply comments in response to the NPRM/O have not yet been announced. Check back here for updates.

At Congress’s direction, FCC narrows, considerably, the ability of same-market stations to negotiate retransmission consent deals jointly.Back in November (as we reported), Congress passed the STELA Reauthorization Act of 2014 (a/k/a STELAR). Among other things STELAR required the Commission to modify certain rules to implement a number of Congressionally-dictated changes. STELAR also required that those modifications take effect pronto – some within 90 days, others within nine months of STELAR’s enactment. Obviously mindful of both the chores Congress assigned it and the limited time frame provided by Congress to get those chores done, the Commission has taken the first step in that direction, releasing an Order amending its rules to incorporate four STELAR-mandated provisions. The four provisions address sunset dates, the ban on joint retransmission consent negotiations, expanded protections for significantly viewed stations and elimination of the “sweeps prohibition.”Don’t be fooled by its meager five-page length and ostensibly limited scope: the Order will undoubtedly have far-reaching impact.First, and most straightforwardly, the sunset dates for certain retransmission consent rules have been extended five years. The rules – previously set to expire December 31, 2014 or January 1, 2015 – will now expire December 31, 2019 or January 1, 2020, respectively. The rules involve: the retransmission consent exemption for carriage of distant network signals by satellite carriers; the prohibition on exclusive retransmission consent contracts; and the expiration of the reciprocal good faith negotiation requirements.Second, and perhaps most importantly, the Order implements the STELAR-dictated ban on joint negotiation by broadcasters in retransmission consent. As readers will recall, earlier in 2014 the Commission had adopted its own joint negotiation prohibition. But, as called for by the Commission, that prohibition applied only to Top-Four-ranked stations, in the same market, that did not share some common attributable ownership (as measured by the Commission’s ownership rules). Under STELAR, that joint prohibition has been expanded to bar joint negotiations between any two same-market TV stations not under common de jure control. Concluding that this STELAR-mandated version is in all ways broader than its existing prohibition, the Commission has now simply incorporated the STELAR language almost verbatim into the rules.The Commission does clarify one perhaps somewhat overlooked aspect of STELAR: where the original, FCC-designed joint negotiation prohibition did not apply to any stations that shared common attributable ownership, that exemption has now been narrowed to apply only to stations that are actually under common de jure control. So where, prior to STELAR, two Top-Four-ranked same-market licensees with at least some common ownership could still engage in joint retrans negotiations, under the STELAR-imposed standard such joint negotiations involving two same-market stations (regardless of whether they are Top-Four-ranked) are permitted only if the two licensees are under common de jure control.Third, the Commission has incorporated into its rules a prohibition barring a television station from preventing an MVPD, by contract or otherwise, from importing a distant signal if that signal qualifies as “significantly viewed” or if the MVPD is otherwise legally authorized to import the signal.Finally, the Order removes the long-standing “sweeps prohibition” from the Commission’s rules. This provision has long prohibited a cable MVPD (although not a satellite operator) from deleting a station’s signal during a Nielsen “sweeps” period.Attentive readers might question why the Commission has adopted these rule changes without first undertaking the conventional notice-and-comment rulemaking proceeding. Such proceedings are ordinarily required by the Administrative Procedure Act. But that Act exempts situations in which the FCC determines that such a proceeding is unnecessary. In this case, Congress explicitly dictated the rule changes to be made, including the narrowing of the joint retrans negotiation prohibition. Since Congress is the FCC’s boss, the Commission’s got to follow Congress’s direction. Accordingly, the Commission had no choice but to adopt those changes, so it concluded that no public notice and comment proceeding was required.Barring court challenge or reconsideration, these four provisions will take effect 30 days after the Order is published in the Federal Register. Check back here for updates.

Attention LPTV, Class A TV and TV Translator CP and license applicants: Form 2100 is your ONLY option as of February 23.Last September we introduced our readers to the new “Licensing and Management System” (LMS) that the Commission plans to use as a one-stop-shop for all broadcast forms. Once LMS is fully operational, our old friend the Consolidated Database System (CDBS) will be put out to pasture. (Before you think about cheering for the demise of CDBS, you might want to take Form 2100 out for a test spin - CDBS may be a devil, but it's the devil we know.)As we previously reported, in LMS all the various broadcast applications and forms which have traditionally been identified by separate numbers will now all have a common form number, Form 2100, but will be identified as separate “schedules” to that form. So, for example, where a full-power TV construction permit applicant used to have to file Form 301 in CDBS, in LMS the applicant will file Form 2100, including Schedule A. Full-service TV license applicants used to have to file Form 302-DT; in LMS they’ll file Form 2100, including Schedule B.As initially rolled out last fall, LMS offered only Schedules A and B. But progress is clearly being made on the LMS front: a recent public notice advises that four more schedules (Schedules C, D, E and F) have now been added to the Form 2100 options.The new schedules are to be used by Class A, LPTV and TV Translator applicants for the following purposes:Schedule C – Obtaining a construction permit for an LPTV or TV Translator station. This replaces Form 346.Schedule D – Obtaining a license to cover an LPTV or TV Translator station. This replaces Form 347.Schedule E – Obtaining a construction permit for a Class A TV station. This replaces Form 301-CA.Schedule F – Obtaining a license to cover a Class A TV construction permit. This replaces Form 302-CA.And heads up, if you’re a Class A, LPTV or TV Translator applicant and you’re planning on filing for a CP or covering license, you’re going to have to use Form 2100 and the appropriate schedule as of February 23, 2015.

Prudent network management or Wi-Fi jamming? The question has been taken off the table … for now.Last year we reported on a couple of interactions between the FCC and the well-known hotelier, the Marriott Corporation. The news started inauspiciously for Marriott when the Commission wrapped up an investigation (started in 2013) by spanking Marriott with a $600,000 civil penalty. The FCC determined that Marriott had used “containment capability” to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel’s Wi-Fi system in favor of their own DIY hotspots.Presumably prodded by that investigation, Marriott (joined by some hotel friends) filed a request for declaratory ruling (or, in the alternative, for rulemaking), essentially asking for a determination that what Marriott had done really was OK. (Specifically, Marriott was asking the Commission to hold that a network operator may “mitigate” threats to the operator’s network, even when doing so results in interference to guests’ WiFi hotspots.)The FCC dutifully announced the filing of the request for declaratory ruling and invited comments about it. But a month later, it also issued an “Enforcement Advisory” alerting one and all to the fact that preventing one’s Wi-Fi enabled devices from connecting to the Internet constitutes prohibited “jamming”. And a month later, out came another “Enforcement Advisory”. This one was even more pointed. Referring to “a disturbing trend in which hotels and other commercial establishments block wireless consumers from using their own personal Wi-Fi hotspots on the commercial establishment’s premises”, the advisory declared flatly that “Wi-Fi blocking violates Section 333 of the Communications Act, as amended.”Not surprisingly, Marriott (and the other requesters) have now withdrawn their request for declaratory ruling (and the FCC has lost no time in officially bidding it adieu).In their withdrawal letter, Marriott et al. strongly deny the Commission’s claim that hotels intentionally messed with private Wi-Fi hotspots in order to force consumers to use the hotels’ pricier Wi-Fi network. And they also note that no less an authority than the Department of Homeland Security, in conjunction with other federal agencies, had issued a technical reference in which it (a) “require[d] that internal WLANs operated by federal agencies use wireless intrusion detection and prevention systems” and (b) recommended the use of such systems by authorized visitor WLANs.” In other words, in Marriott’s view it was merely implementing cautious guidance from DHS, not illegally jamming anything.Still, the handwriting on the Portals walls was pretty darn clear, particularly in the most recent “Enforcement Advisory”. So rather than expect that the FCC might be persuaded otherwise, it makes sense that Marriott would look for other ways to make its case. Officially, Marriott pulled the plug “in order to more quickly and comprehensively address some of the pressing security questions raised by Petitioners and to focus efforts on establishing the American Hotel & Lodging Association Cybersecurity Task Force.” Marriott describes the Task Force as “an industry task force that will partner with experts and leaders in the technology sector to find and implement the most effective market-based solutions available to tackle growing cyber threats.”While the withdrawal of the Marriott request defers resolution of the issues raised in that request, our hunch is that those issues haven’t gone away by any means. The withdrawal of the request may just be a tactical retreat; it’s probably not the end of the war.

FAA announces NPRM indicating that it will reverse course on commercial use of drones.It’s a time-honored Washington tradition that, when an agency wants to avoid press coverage of a controversial action, it will release notice of that action late on a Friday afternoon, ideally just before a three-day weekend. So it looked like the Federal Aviation Administration (FAA) was taking that tradition a bit further by announcing, on Saturday of Presidents Day weekend, that the next day (yes, that would be a Sunday) it would be announcing proposed rules for Unmanned Aircraft Systems – what the FAA refers to as “UAS” but what many of the rest of us refer to as “drones”.Since the FAA has in recent years been trying to impose the strictest regulation of drones possible – a trend with which I (and many others) have taken issue – I feared the worst.So imagine my surprise when the proposed rules turned out to be … not so bad. In fact, adopting of the proposal would largely clear the way for the use of drones by media organizations.Those who read our earlier posts on the subject will recall that the FAA considers journalism to be a “commercial” use of drones – something which can’t occur without express FAA approval (at least according to the FAA). The agency threatened media entities using drones in a newsgathering capacity, sending cease and desist letters to innovators. (To our knowledge only one case has been actually litigated, and there the FAA suffered an initial set-back before winning on appeal before the National Transportation Safety Board. The case was then settled, with no admission of guilt by the drone operator and withdrawal of a number of charges by the FAA.)But the recently announced (but not yet formally released) Notice of Proposed Rulemaking (NPRM) opens the door to eventual drone use. At 197 pages, it provides considerable detail which anyone planning on filing comments should review carefully. The rest of us can rely on the FAA’s Press Release and accompanying “Overview” of the proposal.The bottom line: While the FAA will still impose certain conditions on commercial (i.e., “non-recreational”) use of “Small UAS”, those conditions are not as onerous as I’d have envisioned.They include:

Another ownership reporting cycle, another acronym: the FCC continues to struggle to devise an ownership reporting mechanism that will give the Commission what it wants.The Commission has once again waded into the muck of how individual interest holders listed in broadcast ownership reports should be required to identify themselves. Six years after a failed effort to require all such interest holders to provide social security number-based FCC Registration Numbers (FRNs), five years (and three full ownership reporting cycles) after implementing an alternative ID approach based on “Special Use FRNs” (SUFRNs), and two years after proposing to scrap SUFRNs altogether, the Commission is now proposing to require use of something it calls a “Restricted Use FRN” (RUFRN). To get an RUFRN, an individual would have to provide his or her name, residence address, date of birth and the last four digits of his/her social security number (SSN).For readers who missed the initial rounds of this long-running matter (and who aren’t inclined to read through our archives explaining it all – like here, here, here and here, for openers), some background. In 2009, at the Commission’s direction, the Media Bureau attempted to revise its commercial broadcast ownership reports (Form 323). One goal of the revision was to insure that every individual interest holder identify himself or herself with an FRN – which would have required that each such interest holder provide the FCC with his or her personal SSN. That proposal met with significant opposition arising not only from security concerns but also from the inappropriate and less-than-transparent manner in which the Bureau attempted to make the change.The Commission responded by allowing individuals to obtain an SUFRN in lieu of a full SSN-backed FRN (a so-called “CORES FRN” obtained through the Commission Registration System, a/k/a CORES). After additional litigation which succeeded in clarifying important aspects of the use of the SUFRN, the revised Form 323 featuring the SUFRN function was deployed in mid-2010. It has been used for three rounds of biennial Ownership Reports, in 2010 (postponed from 2009), 2011 and 2013.In imposing the FRN/SUFRN reporting requirement, the FCC was hoping to develop a comprehensive, reliable, searchable database reflecting the identities of everybody who holds an attributable interest in any commercial broadcast station. The Commission sees such a database as critical to measuring diversity in ownership and ultimately in supporting any regulations designed to increase that diversity.Now, however, after three biennial reporting cycles, the Commission has determined that use of SUFRNs may be undermining the usefulness of the information being obtained from its ownership reports.In a new Notice of Proposed Rulemaking (NPRM, although technically its title is “Second Further Notice of Proposed Rulemaking and Seventh Further Notice of Proposed Rulemaking”, for those keeping count), the Commission proposes to abandon (or at least sharply curtail) use of the SUFRN and replace it with the RUFRN.According to the Commission, since SUFRNs first became available at least 25 percent of individuals have used them. Moreover, some individuals have obtained multiple SUFRNs while some SUFRNs have been used in connection with multiple persons. As a result, the Commission concludes that it “cannot confidently determine” how many individuals are in fact using SUFRNs. And regardless of the precise number of SUFRN users, the Commission believes that that number is high enough to undermine the utility of the information collected in ownership reports. To enhance its data collection efforts (or at the least to expand its acronym collection efforts), the Commission now proposes the RUFRN.Historically, an SUFRN was assigned within the Form 323 itself, and its use has theoretically been limited to that form. By contrast, the RUFRN would be obtained through the separate CORES system in the same manner as a “traditional” CORES FRN. Unlike a CORES FRN, which requires disclosure of the individual’s SSN, the RUFRN would be obtained by submitting an individual’s address, birth date, and only the last four digits of their SSN. An individual’s RUFRN would then consistently be used by that individual any time he or she appears in a broadcast station’s ownership report. The RUFRN would be available only to individuals, not to entities, and (like the SUFRN) could be used only for the purpose of completing ownership reports.To avoid duplication, CORES would be revised to check the information submitted to ensure that no individual is allowed to obtain multiple FRNs (whether CORES FRNs or RUFRNs). The Commission tentatively concludes that use of the RUFRN would provide reasonable assurance that individuals are uniquely identified across all ownership reports in which they appear, but requests comment on this. The Commission also concludes that use of a consistent identifier by each individual will improve the quality of the data collected in ownership reports by making it easier to identify and correct errors, as well as to track individuals across multiple reports.In the NPRM, the Commission acknowledges that a parallel proceeding is already underway looking to revise the CORES system itself. That system, in place for more than a decade, has historically allowed individuals to obtain more than one FRN for a given SSN, and even permits assignment of FRNs without any SSN at all. While the use of SUFRNs may have undermined the Commission’s ability to develop a reliable database of broadcast ownership interests, the design of the CORES FRN system itself may have posed an even greater problem on that front. In any event, the Commission’s efforts to revise CORES will proceed on a parallel track regardless of the ultimate fate of the RUFRN proposal.While the Commission blames the SUFRN for many of its problems in achieving the reliable database it had hoped for, the FCC also candidly acknowledges multiple times in the NPRM that many of its data problems stem from the “complexity of the information required to accurately file” Form 323. But the Commission also optimistically concludes that use of the RUFRN may enable “burden-reducing form modification”. Specifically, the NPRM notes that commenters in other proceedings have requested that the Commission eliminate the obligation to disclose, in each Form 323,all the other attributable interests held by each attributable interest holder listed in the form. So elimination of that requirement would, at least theoretically, simplify Form 323 and, also theoretically, improve the reliability of the data collected on that form. But such elimination would require an ability to consistently identify individuals across all filed ownership reports – which is the Commission’s intended goal for RUFRNs.Even if the RUFRN were to be adopted, the SUFRN might still be retained for limited purposes. In particular, the Commission asks whether the SUFRN should be available to individuals who simply refuse to provide their identifying information. Under the current SUFRN system, filers are required to use “reasonable and good faith” efforts to obtain from each individual interest holder the information required to obtain a CORES FRN before obtaining a SUFRN. The NPRM asks whether, if any use of a SUFRN is retained, substantiation of such efforts should be required, or if other steps should be required to encourage all interest holders to provide the information necessary to obtain a CORES FRN or RUFRN. Whether or not such a requirement would be consistent with the FCC’s assurance to the Court of Appeals back in 2010 that no one would be required to submit a social security number to obtain an FRN for Form 323 purposes is unclear.The NPRM also addresses use of the RUFRN in non-commercial ownership reports (Form 323-E). In a separate proceeding the Commission is considering the possible overhaul of that form, an overhaul that could impose the same type of unique identification of all individuals listed in the form as is used in commercial ownership report forms. In the NPRM, the FCC asks whether the proposed RUFRN system should be applied to non-commercial reports in the event that those reports are modified (in the separate proceeding) to mirror commercial ownership reports in the information they collect. The NPRM requests comment on whether any different concerns would be raised by applying the RUFRN to non-commercial ownership reporting.Asserting, as it has in the past, that its CORES system is highly secure and well protected from any possible security breach, the Commission also requests comment on any data security concerns raised by the RUFRN proposal, including whether the specific information required to obtain a RUFRN reduces concerns over any security breach or potentially raises any new concerns. (Although the Commission claims to have learned from the experience, its confidence in the security of its data systems may be a tad over-optimistic in view of the fact that the FCC was apparently hacked in a less-than-highly-publicized incident back in 2011.) The Commission tentatively concludes that the RUFRN proposal would not violate the Privacy Act, but also requests comment on this conclusion.Broadcasters should be aware that, If the Commission adopts these proposals, SUFRNs may become a thing of the past. If that were to happen, it may require significant effort on the part of reporting licensees to cajole reluctant interest holders to provide their information to the Commission. With the next round of biennial ownership for commercial stations due later this year, broadcasters would do well to focus on these matters now. It’s not clear that the FCC can or will act so fast as to eliminate SUFRNs before the next round of Form 323s is due, but that possibility at least exists.The comment deadlines for the new RUFRN proposal have not yet been announced. Anyone interested in letting the Commission know their thoughts should check back here for updates.

If Uncle Sam is paying for the time, Uncle Sam is the sponsor.Long-time reader, broadcaster, Friend of the Blog, client (and, yes, attorney) Tom Taggart has suggested that a reminder about sponsorship identification might be useful in light of a recent situation he encountered. An ad agency bought time on behalf of the Centers for Medicare and Medicaid Services, a federal governmental agency, which was promoting enrollment in Obamacare in advance of the mid-February filing deadline. No problem there. The instructions accompanying the 30-second script indicated that it should be read “like a PSA with a sense of urgency”. Again, no problem there.But the script didn’t happen to include any indication of who was paying for the spot – and there was the problem.The mere facts that the spot was supposed to be read “like a PSA” and that it involved a subject that could qualify for PSA treatment were immaterial, since it was acknowledged by one and all that money was to change hands in exchange for broadcasting the spot. That being the case, an appropriate sponsorship identification was definitely called for, notwithstanding the omission of any such ID from the spot’s script. Having recognized that omission, the station was entirely within its rights to take steps to insure that an appropriate sponsorship ID was included in the spot.We don’t know whether this incident arose from an over-enthusiastic, under-informed ad rep (or ad agency), or possibly a sponsor who preferred to avoid a sponsorship ID because it might somehow dilute the intended message, or possibly some inadvertent miscommunication somewhere along the line. Whatever the source of the problem, the solution was clear. If money is being paid in return for the broadcast of particular content, that must be disclosed, and it’s the broadcaster’s obligation to make sure that it is disclosed. It doesn’t make any difference if the sponsor is a governmental agency, or if the subject matter of the spot might otherwise qualify as PSA-worthy.Tom noted our recent reports on the FCC’s recent enforcement efforts relative to the sponsorship ID requirement – here and here, for example – and thought a reminder about the rule might be appropriate. We agree – consider yourselves reminded.

In the waning days of 2014 we reported on the release of a Notice of Proposed Rulemaking (NPRM) in which the Commission proposed to expand the online public inspection requirement to include radio broadcasters, cable operators and satellite broadcast services. The NPRM has made it into the Federal Register, which means we now know the comment deadlines. Comments may be filed by March 16, 2015 and reply comments by April 14. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-127.

Flo and Eddie, still on a roll in New York, face a decision; meanwhile, a new plaintiff surfaces in CaliforniaFor those of you awaiting the next installment of “Flo and Eddie Get Sirius”, we have some news. Recall that last November, the former Turtles were oh-so-close to getting a judgment against Sirius XM in the New York version of their fight to collect for infringements of Flo and Eddie-owned copyrights covering a number of pre-1972 sound recordings. The only thing that stood between them and a favorable judgment was Judge Colleen McMahon’s invitation (actually, it was an order) to Sirius XM to show cause why judgment shouldn’t issue.As we expected, Sirius XM came up with a number of arguments, none of which struck paydirt. It claimed that the plaintiff corporation, Flo and Eddie, Inc., didn’t really own the copyrighted works at issue – a claim Judge McMahon rejected. Sirius XM’s argument was based on the notion that, while Howard Kaylan and Mark Volman (who used the noms de disque Eddie and Phlorescent Leech a/k/a Flo, respectively) clearly held title to the recordings, it wasn’t clear that they had formally transferred title to their corporate persona, “Flo and Eddie, Inc.” Judge McMahon reviewed the available evidence and was convinced that the corporation held title.Along the same lines, Sirius XM argued that Flo and Eddie had implicitly authorized the digital transmission of their works by appearing on (and hosting) various Sirius XM shows. Judge McMahon wasn’t convinced, mainly because anybody alleging such implied authority has a very high burden to meet (and Sirius XM didn’t meet it). Along the same lines Sirius XM claimed that Flo and Eddie had waived any infringement claims or that they should be estopped from raising them. McMahon concluded that this was akin to the “implicit authority” claim and rejected it.Sirius XM did win a minor victory with respect to the relevant statute of limitations. Sirius XM claimed that the appropriate limit was three years, not six as alleged by Flo and Eddie. Judge McMahon agreed – but that merely reduced the extent of infringement. In other words, Flo and Eddie would still be entitled to damages for infringements within the preceding three years, so this was neither a major win for Sirius XM nor a major setback for Flo and Eddie.Then came the final point.Flo and Eddie had indicated that they wanted their case to proceed as a class action, but they hadn’t yet formally moved for that status. Sirius XM argued that Judge McMahon could not issue a judgment in favor of Flo and Eddie until she has decided whether class certification is warranted. While the law on that particular point is not as slam-dunk as Sirius XM tried to make it out, Judge McMahon agreed that, ordinarily, issuance of a judgment to a single plaintiff prior to a determination as to class certification is inappropriate. So she gave Flo and Eddie the choice. They can either: (a) opt for class action status, in which case they would have to go through the necessary steps (including class discovery); or (b) notify the court that they wish to proceed individually (i.e., with no class certification), in which case McMahon would presumably issue the judgment in their favor promptly.This puts Flo and Eddie in an interesting spot. They can take the money and run, leaving to another day the question of whether a class action is appropriate here. Or they can sit tight, run through the class action process and see what happens.While class certification can be a big issue, that may not necessarily be the case as far as Flo and Eddie are concerned. After all, if they decide not to pursue class action status here, that shouldn’t hurt them directly, nor is it likely to hurt others who might otherwise have chosen to participate in a class action had the class been certified. There are certainly going to be plenty of motivated plaintiffs willing to go through the extra few steps of filing their own lawsuit (as opposed to simply joining an existing class of plaintiffs), especially since Flo and Eddie have paved the way. So it wouldn’t be a surprise if Flo and Eddie were to decline to pursue class certification in this case.On the other hand, given their success thus far, Flo and Eddie may prefer to go the class action route. If they are successful in getting the class certified, that could enhance their ability to negotiate a favorable deal for themselves and other class members. And if they don’t get a class certified, they can still seek a judgment solely in their own names. It will be interesting to see which way they go.And speaking of other motivated plaintiffs, let’s keep our eye on “Zenbu Magazines”, which claims to own the copyrights in songs recorded by The Flying Burrito Brothers, Hot Tuna and the New Riders of the Purple Sage. Zenbu has filed seven separate copyright infringement lawsuits against some of the biggest streaming companies not called “Sirius XM” or “Pandora”, specifically Apple’s “Beat Electronics”, Sony Entertainment, Google, Rdio, Songza, Slacker, and Escape Media Group (owner of the popular service Grooveshark). The suit was filed in the United States District Court for the Southern District of California on January 22.Stay tuned. This is far from over.

Last month we reported on the FCC’s proposal to redefine the MVPD universe to include services “untethered” from any infrastructure-based definition – in other words, to include Internet-delivered, “over-the-top” services. The Media Bureau has now extended the comment deadlines in that proceeding. As a result, comments are now due by March 3, 2015 and reply comments by March 18. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-261.

It’s that time of year again – time for our annual reminder to all telecommunications carriers and interconnected VoIP providers that your CPNI certifications are due by March 2, 2015. While the Enforcement Bureau has announced the deadline as March 1, it appears not to have noticed that in 2015, March 1 is a Sunday. Thanks to our old friend Section 1.4(j) of the FCC's rules, when a filing deadline falls on a holiday – and the rules do indeed specifically confirm that Sundays are “holidays” – the deadline rolls over to the next business day, which in this case will be Monday, March 2.As described by the Enforcement Bureau, CPNI – Customer Proprietary Network Information to the uninitiated – includes “some of the most sensitive personal information that carriers have about their customers as a result of their business relationship”. Think phone numbers of calls made or received, or the frequency or duration of calls, etc. . . . basically the same stuff the NSA has apparently been collecting for years. While the NSA is not required to file CPNI certifications with the FCC, telecom carriers aren’t so lucky.The Bureau has issued a convenient “Enforcement Advisory” to remind one and all of the fast-approaching deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like.The potential fines run to $160,000 per violation (up to a max of $1,575,000) – no small potatoes. The Advisory also reminds us all in a footnote that last September the Commission and Verizon entered into a Consent Decree arising from a CPNI-related investigation; as a result of the Decree Verizon ended up forking over $7.4 million to the Commission. As those dollar figures indicate, the Commission takes CPNI compliance (including the annual reporting requirement) very seriously. Historically it has doled out five-digit fines to non-compliant carriers. In fact, the FCC’s zeal is such that, in many instances, it has initiated forfeiture proceedings even against carriers who, as it turned out, had fully complied with the rules.In light of this, it’s a good idea not only to get the report filed on time, but also to be sure to get, and keep, records demonstrating what you filed and when you filed it. That way, if the FCC wrongly accuses you (as it has wrongly accused others in the past), you will ideally be able to avoid a considerable amount of hassle, not to mention liability for any fine.As we have explained annually for the past several years, the CPNI rules are designed to safeguard customers’ CPNI against unauthorized access and disclosure. The rules themselves are set out in Subpart U of Part 64 of the Commission’s rules. True gluttons for punishment (or sufferers from sleep deprivation) can check them out here.So what, exactly, needs to be filed? Since 2008, the rules have required that telecommunications carriers and interconnected VoIP providers have an officer sign and file with the Commission a compliance certificate, annually, stating that she or he has personal knowledge that the company has established operating procedures that are adequate to ensure compliance with the rules. The carrier must also provide: (a) a statement accompanying the certification explaining how its operating procedures ensure that it is or is not in compliance with the rules; and (b) an explanation of any actions taken against data brokers and a summary of all customer complaints received in the past year concerning the unauthorized release of CPNI.Who, exactly, needs to file this report? In its FAQs, the Commission offers examples of “telecommunications carriers” subject to the reporting requirement: “local exchange carriers (LECs) (including incumbent LECs, rural LECs and competitive LECs), interexchange carriers, paging providers, commercial mobile radio services providers, resellers, prepaid telecommunications providers, and calling card providers.” But the FCC cautions (in italics, as it has in past years) that “this list is not exhaustive”.(The Commission emphasizes that aggregators are not required to file. An aggregator is “any person that, in the ordinary course of its operations, makes telephones available to the public or transient users of its premises, for interstate telephone calls using a provider of operator services.”)This is not something that can or should be left to guesswork: as in most other areas of the law, ignorance is no excuse. If you are a telecommunications carrier or an interconnected VoIP provider, it would behoove you to tie down, sooner rather than later, whether you are required to file a certification. (Your communications counsel would be a good place to start, if you have any questions.)Remember: If you are in the broad universe of entities required to file the certification but you fail to do so for whatever reason, you’re almost certainly looking at a $20,000 forfeiture (not to mention the aggravation and legal fees normally associated with responding to an NAL).

Latest Greenhill estimates incorporate more sophisticated procedures and analytics, results of AWS-3 auction.[Blogmeister’s Note: Oops. It appears that the FCC and its pals at Greenhill may have attempted to goose broadcaster interest in the Incentive Auction by some fancy footwork in the latest Greenhill Report, and we here at CommLawBlog initially fell for it. In our post as originally published here, we mistakenly assumed that a table appended to the most recent report was intended to correspond to a similar table included with the October report. The differences in dollar values between the two certainly attracted attention, which may have been the point. But closer examination of the two tables indicates that they are quite different and not really comparable. As a result, while the numbers in the new table are indeed considerably higher than the October numbers, the fact is that the anticipated walk-away dollar values for auction participants do not appear to have changed appreciably. We have corrected our original post accordingly.]Let’s say that you’re a TV broadcaster (full-service or Class A), and you’ve been thinking about participating in the Incentive Auction but, so far, at least, you haven’t been quite persuaded. Maybe the FCC’s new estimated opening bids will change your mind. Or will they?The Commission has released an update to the now-infamous Greenhill Report released just last October. This updated version is revised to incorporate procedures and analytics currently out for comment at the Commission, including: elaboration on the options to go to high- or low-VHF; the proposed “bid hierarchy” of multiple bidding options and the “preferred” bid option; and additional fleshing out of the post-auction transition, payment of proceeds, and disbursement of relocation funding for repacked stations. It also incorporates consideration of the results of the recently-closed, wildly successful AWS-3 auction.The result? Lots of cha-ching … or so it would seem until you look a bit closer.The revised Greenhill Report implies that it has incorporated the results of the wireless industry’s generous response to the AWS-3 auction to increase the expected opening bid price per MHz-pop from $1.50 to numbersnorth of $2.00 per MHz-pop! A broadcaster might well look at the table of opening bids in this revised report and think, my goodness – numbers that were previously just ridiculous are now bordering on obscene! But pull back the Wizard’s curtain and you will see that these numbers are not the same as the previously-released figures. In fact, these opening bid figures are apples to the October Greenhill Report’s Estimated Auction Proceeds’ oranges.In the October report’s Appendix, a table of Estimated Potential Auction Compensation listed the expected maximum and median end-of-auction proceeds for full power and Class A TV stations in each market. In the latest report iteration, however, the appended table has been replaced by one entitled “FCC Proposed Opening Bid Prices.” At first glance, for example, it would appear that the median opening bid for a full power New York City station is now $660M, up from the paltry $410M previously estimated. In fact, however, both numbers are in play: the new report simply tells us that the median opening bid for a full power NYC station is $660M, and that the median expected walk-away price a station in NYC will get is $410M.We are a little disturbed that the FCC would pull such a sleight of hand in an apparent effort to goose broadcaster participation interest.

With widespread cooperation, Commission looks to improve accuracy, reliability of E911 location capabilityBack in the day, when landline phones ruled, emergency responders could locate 911 callers with relative ease. After all, each landline phone was tied to a specific, readily identifiable address (and often a specific office at that address), so when a call came in, it was easy to pinpoint the originating address.Then came wireless phones, and locating the emergency caller got trickier: an E911 message originating from a wireless phone could be coming from just about anywhere. Initially, the FCC mandated that carriers be able to provide Public Safety Answering Points (PSAPs) the location of an E911 caller to within 50 to 300 meters (depending on the technology used). But that requirement applied only to calls originating outdoors, and it mandated provision of only horizontal locations determined by geographic coordinates (i.e., latitude and longitude). What about wireless 911 callers who happened to be indoors or, worse, on an upper story in a high-rise?As we reported, last year the FCC launched a proceeding looking to improve E911 location capability for just such circumstances. And now, in the wake of an impressively cooperative response to the Commission’s proposals, the FCC has adopted a Fourth Report and Order (4th R&O) establishing a new set of E911 location standards. Set to take effect gradually over a period of several years, the new standards reflect the seemingly universal acknowledgement that the ability of emergency responders to locate E911 callers quickly is a matter of utmost importance.Historically, the FCC’s location requirements have been based on the determination of the wireless phone’s geographic coordinates (i.e., latitude and longitude, a/k/a the x- and y-axes). Last year’s proposal stuck with that approach, but included a third-dimension (the so-called z-axis) to reflect the caller’s vertical location, an essential datum for locating callers in a multi-story structure. The Commission recognized that reliance on a system that could generate a “dispatchable address” directing responders to a specific location would be preferable to the less specific x/y (or x/y/z) approach, but it viewed such a system as more of “long-term objective”. What a difference a year makes!As it turns out, the proliferation of various in-building technologies – small cells, Wi-Fi and Bluetooth beacons – has given rise to the possibility that an extensive, reliable database of dispatchable addresses can be compiled and integrated into the E911 system. (For these purposes, a “dispatchable address” includes street address and additional information – floor, suite number, apartment number, etc. – necessary to identify the calling party’s location.) So the new rules include as one alternative the provision of dispatchable addresses, as that capability develops. Reliance on x-, y- and z-axis determinations remains another alternative.As to that latter alternative, more work still needs to be done with respect to vertical, or z-axis, determinations. The information that permits such determinations comes from barometric sensors included with an increasing number of handsets. The changes in barometric pressure registered by those sensors can be used to calculate how high above ground the sensor is. But the raw data from the handset may need to be calibrated to some degree to assure its accuracy. As a result, the new rules afford carriers additional time to come up with an appropriate metric for z-axis accuracy and then to satisfy that standard.The new rules provide two sets of implementation schedules, one applicable to horizontal locations (x- and y-axis), the second to vertical (z-axis) determinations. As to horizontal locations, all CMRS providers will have to provide to PSAPs either the (1) dispatchable location, or (2) the x/y location within 50 meters, for the following percentages of wireless 911 calls within the following timeframes:

FCC proposes increased radar uses of the band, to the possible detriment of radio astronomers and amateur radio.Just ten years ago, the upper reaches of the millimeter wave bands – the “nosebleed” spectrum – were mostly empty. There is a lot of potential capacity up there, but technical constraints made it difficult to design equipment capable of operating at those frequencies. Since then, though, a corps of clever engineers have overcome the problems. Applications have proliferated. In addition to point-to-point communications at 71-76, 81-86, and 92-95 GHz, we have several uses of radar: vehicle radars at 76-77 GHz, airport radars at 76-77 GHz (for detecting service vehicles and “foreign object debris,” or FOD, on the runways) and at 78-81 GHz (FOD only), and industrial “level probing” radars at 77-81 GHz.All of these radar applications are presently unlicensed under Part 15 of the FCC’s rules, except for the airport FOD radars at 78-81 GHz, which require individual licenses under Part 90.The poor propagation in this frequency range limits radar applications to a few tens of meters, but the short, millimeter-scale wavelengths provide excellent precision – a welcome property if, for example, your car has a radar-based automatic braking system. The limited range also allows the same frequency to be reused just a short distance away. (See this link for an introductory discussion of radar and associated regulatory issues.)The FCC is now thinking about liberalizing its rules. The proposals include:

New definition denies “broadband” service to millions of Americans.The FCC has taken broadband away from millions of American households. Sure, their connections still work fine. Their speed is unchanged.But the service all those people have no longer counts as broadband.That’s because the FCC has redefined its criteria for “advanced telecommunications capability” – what the rest of us call broadband – increasing them from the previous levels of 4 Mbps download and 1 Mbps upload to 25 Mbps and 3 Mbps, respectively.The increase, the first since 2010, is meant to reflect changes in how people use their Internet connections. Much of that change can be summed up in one word: Netflix. The growing popularity of streaming TV content and movies, particularly in high definition, has not only strained Internet facilities nationwide but also changed consumers’ expectations as to what constitutes acceptable Internet service. Other streaming services, like Amazon and Hulu, add to the demand for high bit rates; their numbers are likely to swell if the FCC opts to treat Internet-delivered program services as MVPDs. These changes will accelerate as more households acquire ultra-high-definition (4K) TVs and begin downloading the higher-bandwidth data streams they require.At the same time, most people don’t actually care about their numerical data speed, or whether it qualifies as broadband. But they do care – a lot – when their movies pixelate and freeze due to insufficient capacity at the Internet service provider. The new definition means that people receiving “broadband” service (as newly redefined) should not experience these difficulties as often.Whether your service still qualifies as broadband, though, depends a lot on where you live. According to the FCC’s data, fully 92% of urban dwellers can access 25/3 data rates, but only 47% of rural Americans can. That drops to a shameful 15% for those in rural areas of tribal lands.The cable TV companies, which provide most of the country’s broadband service (most of the rest comes from Verizon’s FIOS), vehemently opposed the change through the National Cable and Telecommunications Association, their national trade association. They argued to the FCC that 25 Mbps is far more bandwidth than consumers actually use or need, even for streaming 4K TV signals or to support multiple simultaneous users in the household.So how did the FCC arrive at the 25/3 criteria? In part by consulting authorities familiar with actual Internet consumer usage: cable TV companies!According to the Commission, Comcast’s marketing materials recommend 25 Mbps to stream video, and even more to stream and download HD video and participate in online gaming. Time Warner Cable suggests that 30 Mbps is appropriate for a family that wants to use multiple devices simultaneously. (Irony alert: Comcast and Time Warner are both members of NCTA.) Verizon told customers that laptops, televisions, and gaming systems can take from 5 Mbps to 75 Mbps, while AT&T promoted speeds up to 45 Mbps to “[d]ownload music, movies, and more in record time.”Do you still have broadband? Check your data speeds here or here. (CommLawBlog is not responsible for these sites.)

Last month we reported on the FCC’s triennial designation of the Top Ten nonbroadcast video networks, a designation that looks like an honor of sorts (until you realize that larger (i.e., >50,000 subs) MVPD’s must provide 50 hours per calendar quarter of video-described prime time or children’s television on the designated Top Five nets). The Commission’s January announcement offered listed networks an opportunity to try to get themselves excused from the list by seeking an exemption. That opportunity extends 30 days from publication of the announcement. The January public notice did not, however, state expressly what the triggering “publication” date was – and we suggested that it might be a good idea to assume that the issuance of the public notice itself constituted publication. As it turns out, the FCC planned to publish the notice in the Federal Register, an event that would officially start the 30-day period for requesting exemption. And now that notice has been published. As a result, petitions for exemption from inclusion on the list must be filed by March 5, 2015.

FCC tries to tie down crucial elements of underlying auction design, including definitions of “clearing targets”, “spectrum impairments”While the schedule may have slipped some, the Incentive Auction is still on its way. And even if the Auction may not start until sometime in 2016 (at least according to the current thinking), the Commission is facing – now – the monumental task of working out the myriad details that will govern the auction process. To that end, last month the FCC invited comment on a mind-numbing array of highly technical questions about both the reverse and forward components of the Incentive Auction. We’ll summarize a few of the highlights concerning the reverse auction. (And let’s be clear, this is just a summary of about 80 pages – i.e., half of the 160+-page request for comments – of densely-packed Commission-ese.) We’ll address forward auction highlights in a separate post.Setting the Clearing Target and Impairment, Categories of LicensesThe principal goal of the reverse auction is to clear UHF spectrum of current TV broadcast licensees in order to make that spectrum available to wireless operators. A couple of years ago, the Commission was hoping to be able to clear a nationwide “clean swath” of spectrum amounting to as much as 126 MHz. The thought was that the reverse auction software could be set up to use that level as a starting point from which the on-going reverse auction calculations would be based. In other words, unless a set of particular reverse auction deals would clear that pre-identified amount of spectrum, those deals would be non-starters.The FCC now seems to be accepting the reality that using a fixed 126 MHz starting point (or even some lower level, like 108 MHz) might be a tad ambitious because of various practical constraints (for example, border interference considerations). As a result, it is now proposing an approach that would rely on a dynamic, rather than static, clearing target concept. The target would be the highest clearing target possible from among the available options depending on broadcaster participation in the reverse auction. But the Commission makes clear that it would like to hear from commenters relative to the notion of omitting any initial clearing targets.“Impairment” and theDefinition of “Cleared” SpectrumRegardless of the starting point, however, it will in any event be essential for the Commission to determine precisely how the notion of “cleared” spectrum will be defined. And that gives rise to additional problems.In some markets, certain TV stations will need to be relocated somewhere within the reallocated 600 MHz band, meaning stations so relocated will find themselves in a band populated by wireless providers.Such proximity threatens interference (both to wireless and to broadcast service), which will be calculated using the “inter-service interference” (ISIX) methodology.Wireless licenses subject to such interference from a TV station would be considered “impaired”. (Wireless licensees would not be permitted to cause interference to TV broadcasters, but they could agree to operate in areas where they might suffer interference from TV service.) But just how much potential interference will cause a wireless license to be deemed “impaired”? And should “impaired” spectrum be included in the calculation of cleared spectrum for clearing target purposes?The Commission suggests that the interference threshold should be in the range of 10-20% of the downlink, and it’s looking for comment on whether that range would be appropriate. Comments are sought as to whether a threshold for impairment to uplink service could be significantly higher – possibly up to 50% – than the downlink threshold. Whatever the threshold ultimately adopted, a county subject to impairment over that threshold would be deemed to be “impaired”, which would then be taken into account in calculating the relevant clearing target. In addressing these questions, commenters also might consider why the proposed methodology for determining impairment is based on county-level data rather than the partial economic areas (PEAs) that will be used to apportion wireless licenses for auction.In any event, once the Commission has resolved these preliminary questions, it proposes that the initial clearing target will be determined as one in which impairments, on an aggregate nationwide basis, affect less than 20% of the total U.S. population, weighted to reflect geographic variation in license prices as determined in prior auctions.Price Break for Impaired Wireless BlocksIn addition to its importance in determining the clearing threshold that will be crucial to the operation of the reverse auction, the definition of “impairment” will be similarly crucial in the forward auction. The extent of impaired spectrum in a given block of wireless spectrum available for auction will affect that block’s price. The Commission proposes to place in the forward auction two categories of generic license blocks: