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At its February 14th meeting, the FCC gave a rather significant Valentine’s Day gift to broadcasters, eliminating the requirement that larger radio and television stations submit the EEO Mid-Term Report (FCC Form 397) at the midpoint of their license terms.  While the FCC will continue to conduct EEO mid-term reviews, it determined that filing the EEO Mid-Term Report was no longer necessary, as most of the information required for an EEO mid-term review is already available in a broadcaster’s Online Public Inspection File.

Specifically, the EEO Mid-Term Report required broadcasters to provide three pieces of information: (i) the number of full-time employees; (ii) the point of contact for the station(s) that is responsible for compliance with the EEO rules; and (iii) the two most recent Annual EEO Public File reports.  In eliminating the obligation to file the EEO Mid-Term Report, the FCC reasoned that the point of contact information and the Annual EEO Public File reports are already kept in a broadcaster’s Online Public Inspection File.  As such, the additional requirement of filing an EEO Mid-Term Report with the FCC was unnecessary.

To gather the third piece of information requested in the EEO Mid-Term Report—the current number of full-time employees—the FCC will require that radio station employment groups indicate when uploading their Annual EEO Public File Reports whether or not they have 11 or more full-time employees (the number which triggers the need for an EEO mid-term review in radio).  Because TV licensees are subjected to EEO mid-term reviews when the station employment group only has five or more full time employees—the same number that triggers the requirement to file Annual EEO Public File Reports—the FCC deemed such a requirement for TV licensees unnecessary (i.e., if a TV station is filing Annual EEO Public File Reports, the FCC already knows the station employment group is large enough to qualify for an EEO mid-term review).

The change in rules will be effective on May 1, 2019.  The FCC noted that television stations in Delaware and Pennsylvania will therefore still be required to file their EEO Mid-Term Reports on April 1, 2019.

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Late today, the FCC released a Public Notice further extending the deadlines for filings that it extended yesterday, which it had already extended by a Public Notice released before the FCC shutdown on January 3 (did you follow that?).  Skipping over those intermediate steps, the final result now boils down to this general rule:  filings that were due between January 3 and January 7 will still be due tomorrow, January 30.  However, filings that otherwise would have been due between January 8 and February 7 are now due by February 8.

HOWEVER, the FCC has established additional deadlines for specific proceedings and classes of proceedings, including:

  • Online Public Inspection File – As an update to our post yesterday,  all public inspection quarterly submissions that were due on January 10, as well as any other filings that were required to be placed in a station’s Online Public Inspection File between January 3 and January 28, are now due by February 11.  Apparently in response to the demo online public file snafu we brought to light a few weeks ago, the FCC cryptically added that any online public file uploads that were made during the shutdown “will need to be resubmitted to the proper Online Public Inspection File site at https://publicfiles.fcc.gov.”
  • EEO Reports – Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must still place their annual EEO Public File Reports in the Online Public Inspection File by the original due date of February 1.  Because the annual EEO Public File Report is not an FCC “filing” (qualifying for the general filing extension) nor a quarterly report (qualifying for the first type of Public File extension), nor was it required to be placed in the public file by January 28 (qualifying for the second type of Public File extension), it does not fall into any of the further deadline extension categories.  On the other hand, the EEO Mid-Term Report on FCC Form 397 is an FCC filing, and therefore broadcasters in New Jersey and New York will have until February 8 to file it under the general deadline extension described above.
  • ULS Filings – All ULS applications and notifications that were due to be filed between January 3 and February 8 are now due by February 8.  This does not apply to filings related to the incentive auction, which were permitted to be filed during the FCC shutdown and therefore are unaffected by the various deadline extensions.  All ULS filings that were submitted between the commencement of the shutdown and today will be considered received as of today, January 29.

While too voluminous to list here, readers should also be aware that the Public Notice sets additional new deadlines for informal consumer complaints, responsive pleadings, comments in the Carriage Election Notice Modernization proceeding, STA requests, fee filings, and filings in the Tower Construction Notification System and the Antenna Structure Registration System, among other things.  Those potentially affected should review the Public Notice carefully to determine what new deadlines may apply.  In addition, the Public Notice indicates that the FCC will also “consider requests for further extensions in individual matters as appropriate.”  So even now, we may not be done extending the extensions.

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With the partial government shutdown mercifully at an end (for now), broadcasters must hurry to update their Online Public Inspection File and make up for a month’s worth of missed filings.

As we wrote earlier this month, filing deadlines that landed during the shutdown were extended (with a few exceptions) via a January 2 FCC Public Notice. The new deadline was to have been the second day of normal FCC operations (which would have made those filings due tomorrow, Tuesday, January 29).  However, in a Public Notice released a few minutes ago, the FCC extended that deadline an additional day, meaning that FCC filings whose due dates fell from January 3 to January 29 are now due by Wednesday, January 30, 2019.  All public file documents that could not be uploaded to the Online Public Inspection File while it was unavailable during the shutdown should be uploaded as soon as possible, and certainly no later than the January 30 extended deadline for FCC filings.

Backlogged uploads and filings include:  fourth quarter children’s television programming reports on Form 398 (if not already filed in LMS), fourth quarter commercial limits certifications, fourth quarter issues/programs lists, Class A TV continuing eligibility certifications, and NCE fundraising reports.

Because the government is funded for at least the next three weeks, broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma will be able (and expected!) to timely upload their annual EEO public file reports in the Online Public Inspection File by Friday, February 1.  See our recent advisory for more information on this obligation.

Broadcasters should also take stock of any other filings that, but for the shutdown, would have been due earlier this month (e.g., Special Temporary Authority requests and extensions).  As noted in an earlier post, the shutdown did not affect the post-incentive auction broadcast repack, and any filings related to the repack should have been filed as scheduled.

Open Meeting “Lite”

On a related note, now that the FCC is open for business again, the January 30 Open Meeting will take place in person instead of via teleconference.  Of course, most of the staff that normally prepare the agenda items and assist the commissioners are just now getting back to work after having been furloughed for several weeks.  The show must go on, given the FCC’s statutory obligation to hold a meeting at least once a calendar month, but instead of reviewing the items announced on the Tentative Agenda, the FCC will use this meeting to go over what it calls “Commission announcements.”

The decision to delay votes on matters originally on the FCC’s meeting agenda for January affects two items of interest to broadcasters.  First, broadcasters are going to have to wait even longer before they can cease thinking about the now-redundant EEO Mid-Term Report on Form 397.  The FCC was prepared to vote on a Report and Order that would have eliminated this reporting requirement.  The impact of the delay will be fairly limited, however.  According to an advance draft of the Report and Order, the substantive changes would not have gone into effect until May 1, 2019.  Given that the last round of EEO Mid-Term Reports for this license renewal cycle are due on April 1, 2019, and the cycle does not resume until 2023, the delay in voting on the item will have no practical impact on stations unless the delay drags on for years.

Also originally up for a vote at the January meeting was a Notice of Proposed Rulemaking seeking several changes in the way the FCC currently processes competing (also known as “mutually exclusive”) license applications for noncommercial educational (“NCE”) FM and television stations and low power FM (“LPFM”) stations.  In this proceeding, the FCC is seeking to improve its review process by eliminating certain requirements for NCE applicants, amending its rules governing the “holding period” during which licensees must maintain certain station characteristics, and generally updating rules that are deemed confusing or unnecessarily time-consuming.  With this item now off the January meeting agenda, action on it will also have to wait, likely until the February Open Meeting (assuming the federal government remains open through then).

Until then, broadcasters should work on meeting their accrued regulatory obligations that couldn’t be fulfilled during the shutdown, and might do well to expedite any planned future filings.  You never know when the next FCC shutdown will occur.

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Originally intended as an “innovation band” for the testing of new wireless broadband services, the Citizen Broadband Radio Service (CBRS) was created in 2015 to permit commercial and federal spectrum users to operate in the same spectrum band. By utilizing smaller geographic areas for licenses, and short-term authorizations lacking an expectation of renewal, the CBRS was seen as a test bed for a variety of different wireless broadband services, including those of rural wireless broadband service providers.

To that end, the FCC created two new classes of licenses, Priority Access Licenses (PALs) and General Authorized Access Licenses (GAAs).  GAAs are permitted to operate anywhere within the CBRS band, so long as incumbent licensees and PALs are protected. PALs are required to protect the incumbent licensees, and will receive protection from GAAs. A key component of the CBRS licensing scheme is the implementation of a central database, the Spectrum Access System (SAS) (had enough acronyms yet?), maintained by third parties who will coordinate among licensees to prevent interference.

At its October meeting, the FCC revised its rules for the service with the stated goal of further encouraging the rapid development of 5G technologies.  The revised rules were adopted in response to petitions filed by CTIA and T-Mobile in 2017 which proposed several changes to the original 2015 rules.  The FCC sought comment on those proposals, which suggested several changes to the Priority Access Licenses, including adjusting the size of the geographic license, expanding the initial and renewal terms for licenses, and adopting performance standards. Although the FCC did not fully adopt the proposals, the revised rules make significant changes before the FCC has even issued the first CBRS authorization.

License Area: Under the 2015 rules, PALs were to be issued based on census tracts. The intent was to encourage local broadband development, especially in rural areas that may not receive service by nationwide carriers. By highlighting the difficulty of managing the licensing and build-out of service in 74,000 separate census tracts, CTIA, T-Mobile and several other parties argued that the FCC should expand the PAL geographic area to the more-manageable Partial Economic Areas. Ultimately, the FCC rejected that proposal, but instead expanded the PAL geographic area to county-based authorizations.

License Terms: In 2015, the FCC was concerned about the warehousing of spectrum, so it limited the license term of PALs in a particular geographic area to two sequential three-year periods, with no option for renewal. Several parties filed comments arguing that the three-year limit for licenses would serve as a roadblock to robust investment by wireless companies. The FCC has now agreed and extended the initial term to ten years. The FCC also modified its rules to permit licensees to renew their PAL authorizations.

Performance Standards: In light of its decision to extend the license term and permit renewals, the FCC imposed a “substantial service” performance standard for services operating in the CBRS band. For mobile and point-to-multipoint services, a licensee must demonstrate that it provides service to at least 50 percent of the licensed service area. For point-to-point service, a licensee must demonstrate that it provides at least four links in areas with a service population of 134,000 people or less, and at least one link per 33,500 people in service areas with a population greater than 134,000 people. This showing will be required when the licensee files its license renewal application.

Competitive Bidding: Finally, the FCC decided to grant PALs in accordance with its competitive bidding auction rules, permitting applicants to claim bidding credits as “small” or “very small business” entities, as a rural service provider, and/or if they propose to serve qualifying Tribal lands.

Support for the proposed rule changes was first signaled by then-Commissioner Pai and Commissioner O’Rielly in their concurring statements when the original rules were adopted in 2015. Because the FCC is still working on approval of the various SAS database proposals, and because there was a change in FCC leadership in January 2017, it was possible for the petitioning parties to seek revision of the 2015 rules before the FCC issued its first CBRS authorization. To date, the FCC has not issued authorizations for PALs or GAAs, but it is possible that new authorizations could be issued in 2019. Thus, while the rule changes will not impact any existing PAL or GAA licensees, these changes will have a significant impact on the operation of the CBRS band in the future.

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For nearly 80 years, the FCC’s Rules have required broadcasters to file paper copies of various types of documents relating to the control and operation of their stations.  Section 73.3613 of the FCC’s Rules requires broadcasters to file with the FCC certain contracts and instruments relating to network affiliations, present or future ownership or control, and some personnel agreements, as well as local marketing agreements (“LMAs”) and joint sales agreements (“JSAs”).  Today, the FCC voted unanimously to eliminate this requirement.

The rule was originally created in the 1930s to make these documents more accessible to both FCC staff and the public.  However, the advent of the online public inspection file has effectively rendered this octogenarian obligation obsolete.  By March 1, 2018, all full-power TV, Class A TV, AM and FM broadcasters should have transitioned to the online public inspection file (“OPIF”), where they must either (i) upload all Section 73.3613 documents, or (ii) maintain an up-to-date list of those documents and provide a copy of any listed contract requested by a party within seven days of that request.  Similarly, stations are required to list all Section 73.3613 documents in their Ownership Reports, which are then automatically linked by the FCC to station OPIFs.

In eliminating the requirement to file such documents with the Commission, the FCC reasoned that the paper filing rule not only imposed unnecessary burdens on stations, but was redundant with the OPIF and Ownership Report requirements; as a result, the requirement did little to serve the public.  The FCC also observed that very few people actually visited its Reference Information Center, where all of these paper filings are maintained.  Members of the public will continue to be able to obtain copies of Section 73.3613 agreements directly from stations by requesting them.

For their part, stations must remain diligent and update their OPIF contract lists within 30 days of the execution, termination, or amendment of any Section 73.3613 document.  As we have previously discussed, timely filing is now particularly important because all OPIF uploads are timestamped, and late uploads are easy for FCC staff to spot at license renewal time.

Today’s Order also extends the FCC’s permitted redaction rules applicable to JSAs and LMAs to all Section 73.3613 documents.  Section 73.3613 currently only addresses redaction of confidential or proprietary information in the context of JSAs and LMAs.  In the past, stations have filed redacted copies of other contracts, as Section 0.459 of the FCC’s Rules allows certain materials to be withheld from public inspection.  The amended Part 73 redaction rule will explicitly allow limited redaction of all Section 73.3613 documents.

Though these changes will certainly save broadcasters time and resources in the long run, broadcasters should continue filing Section 73.3613 documents with the FCC for the moment.  Before the full rule change can go into effect, it must be approved by the Office of Management and Budget.  In the past, such approvals have typically taken many months, so this rule change may well not go into effect until sometime next year.

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The FCC will take a number of significant actions in the final months of 2018 to facilitate the development of 5G, the fifth generation of wireless cellular technology. First, at its October meeting tomorrow, it will vote on making a portion of mid-band spectrum (2.5 to 4.2 GHz) available for 5G use.  Second, it will launch in November the first of two high-band 5G spectrum auctions scheduled for 2018.  Now is therefore a good time to take a look at what 5G is, and what impact it promises to have.

Looking back, the primary benefit of the transition from 3G to 4G was a significant speed boost, which allowed users to, among other things, stream YouTube and upload videos to social media platforms like Instagram without much waiting.  Once implemented, 5G is expected to deliver download speeds anywhere from 10-100 times faster than 4G, with speeds of up to 20 gigabits per second.  5G users will also experience significantly less latency, i.e., the time between when you click on a link and when the network responds.  While 4G latency is about 9 milliseconds, mature 5G systems will reduce latency to around 1 millisecond.

Mature 5G networks will use high-band spectrum (24 GHz and above), which is capable of transmitting significantly more data than 4G, but is limited to much shorter distances.  4G towers currently deliver service for up to 10 miles, while high-band 5G towers will only deliver service for up to 1,000 feet (about 3 football fields).

In addition, high-band 5G spectrum has a shorter wavelength than spectrum used for 4G, making it more difficult for these signals to penetrate solid objects such as walls and windows.  To overcome the distance and signal penetration challenges, 5G will require vast networks of small-cell sites located on a diverse array of real estate platforms, with the small-cells anchored by larger cell towers.  To streamline the deployment of small-cells, the FCC in March adopted new rules to reduce regulatory impediments to building out small-cell infrastructure, and in September adopted rules requiring state and local governments to approve or deny small-cell applications within prescribed time periods.  Not surprisingly, the new rules are unpopular with local governments, who object to any federal interference with their local site review processes.

There are numerous potential innovations and business models that can utilize 5G’s faster speeds, lower latency, and increased connection capacity.  Most agree that 5G will deliver seamless 4K video streaming and instant downloads of large files, but it could also dramatically change how users, including machines, access the Internet.  Currently, the primary option for residential and enterprise broadband customers is cable or fiber.  With speeds of up to 20 gigabits per second (and no need for wire infrastructure), 5G could disrupt the delivery of fixed Internet access as we know it.

5G will also allow the Internet of Things to flourish.  Specifically, it will allow vastly more “things” to connect to cell sites and remain connected to the Internet without the need to connect through smartphones or Wi-Fi.  4G can connect about 2,000 devices per square kilometer, while 5G will connect about one million over the same area.  For example, 5G could facilitate thousands of driverless cars in the same city talking to each other to coordinate efficient traffic flow without the need for passengers to open an app on their phone, or even to have a phone.

Another potentially transformative use of 5G is remote medicine.  For example, given the high speed and low latency of 5G, medical procedures could be performed using robot arms controlled by doctors in a different part of the country or world, harnessing almost instantaneous data transmission and lowering geographic barriers to treatment.  Similarly, augmented and virtual reality gaming, shopping, and other experiences should blossom under 5G.

Rollout of 5G will be gradual.  Following pilot programs in 2018 in select cities, wireless carriers are expected to launch the first iterations of widespread 5G networks in the United States in 2019.  5G-enabled smartphones are also expected to be released in 2019.  The first 5G networks will likely use low (600 to 900 MHz) and mid-band (2.5 to 4.2 GHz) spectrum already possessed by wireless carriers, rather than the high-band spectrum that will make up the majority of spectrum auctioned by the FCC for 5G use.  As a result, initial 5G networks will only scratch the surface of 5G’s potential, delivering speeds ranging from 10% faster than 4G to three times as fast.  Mature iterations of 5G networks that use high-band spectrum are expected to arrive in 2-4 years.

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Toll free calling began in 1967, with the introduction of the 800 toll free code. It remains a frequently used communications tool, even in the Internet age, as new toll-free applications are developed, including the capability to send text messages to certain toll-free numbers. Yesterday, the FCC released a Report and Order that made several innovative changes to the toll free number marketplace.

First, the FCC revised its rules to permit the use of auctions to assign toll free numbers. Since 1998, the FCC has used a “first-come, first-served” approach, but now asserts that the times have changed such that flexibility in the form of auctions is necessary to meet the statutory requirement that toll free numbers be allocated “on an equitable basis.”

Specifically, the FCC states that the first-come, first-served approach has “rewarded actors that have invested in systems to increase the chances that their choices of toll free numbers are received first.” It also states that assigning numbers at no cost “has allowed accumulation of numbers without ensuring those numbers are being put to their most efficient use.”

The FCC will not waste any time using its new auction authority. The 833 toll free code, which was opened in 2017, currently has 17,000 “mutually exclusive” numbers. Mutually exclusive numbers are those subject to multiple requests. The FCC has established the 833 Auction to sell the rights to these numbers.

The Report and Order also revises FCC rules to allow a secondary market for toll free numbers purchased in an auction. Currently, FCC rules prevent three types of conduct that make a secondary market infeasible: (1) “brokering,” which is the selling of a toll free number by a private entity for a fee; (2) “hoarding,” which is the “acquisition by a toll free subscriber . . . of more toll free numbers than the toll free subscriber intends to use for the provision of toll free service;” and (3) “warehousing,” where toll free numbers are reserved without having an actual toll free subscriber for whom the numbers are being reserved.

The FCC explained that a secondary market for toll free numbers assigned via auction is desirable because it “permit[s] subscribers to legally obtain numbers which they value.” It further explained that a secondary market promotes efficient operation of an auction by allowing the purchase or sale of numbers in response to the outcome of the auction, and “limits pre-auction costs associated with estimating which—and how many—numbers a bidder may win.” Also, with a nod to speculators, it explained that a secondary market “encourages value-creating entities to promote efficiency by procuring rights to numbers with an intent to sell those rights to other interested subscribers.”

The rule changes established in the Report and Order will go into effect 30 days after publication in the Federal Register.

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The first 911 call was made 50 years ago, long before wireless phones, texting, and Internet calling were used for everyday communications. Congress and the FCC regularly propose and adopt laws and regulations to keep pace with ever-changing technology. Those efforts continue today with the release by the FCC of a Notice of Proposed Rulemaking (“NPRM”) to implement two bills recently adopted by Congress to improve 911 emergency calling.

The first, Kari’s Law, requires multi-line telephone systems (“MLTS”) in the United States to allow users to dial 911 directly, without having to dial a “9” or any other prefix to reach an outside line. The law was enacted in February in honor of a Texas woman who was fatally stabbed in a hotel room by her estranged husband in 2013. The woman’s nine-year-old daughter was in the room at the time and repeatedly tried dialing 911, but did not know that an extra “9” was needed to reach an outside line.

Though the focus here was on hotel phone services, the application to MLTS makes the impact much broader. MLTS are telephone systems used in settings such as office buildings, campuses, and hotels. Kari’s Law also requires that such systems transmit a notification to an appropriate on-site or third-party contact, such as a front desk or security office, when a 911 call is made.

Under the proposed rules, the direct dialing requirement would be mandatory for “persons engaged in the business of manufacturing, importing, selling, or leasing MLTS, as well as persons engaged in the business of installing, managing, or operating MLTS.” The notification requirement would mandate that a “person engaged in the business of installing, managing, or operating MLTS shall, in installing, managing, or operating the system, configure it to provide a notification that a 911 call has been placed by a caller on the MLTS system.” The notification would be required to include, at a minimum, the following information: (1) that the 911 call has been made; (2) a valid callback number; and (3) the caller’s location. In addition, to ensure timely notifications, the FCC proposes that notifications be transmitted at the same time as the 911 call.

The statutorily mandated compliance date of Kari’s Law is February 16, 2020, and only applies to MLTS that are “manufactured, imported, offered for first sale or lease, first sold or leased, or installed” after that date. Other MLTS are grandfathered from compliance.

The NPRM also proposes rules to implement RAY BAUM’S Act, which was enacted in March and requires that the FCC conduct a proceeding that considers adopting rules that require “dispatchable location” be transmitted to 911 call centers, regardless of the technological platform used. Dispatchable location is defined in the NPRM as “the street address of the calling party, and additional information such as room number, floor number, or similar information necessary to adequately identify the location of the calling party.” Currently, when a 911 call is made in an MLTS environment such as a large campus or hotel, the location may be included in the information sent to the 911 call center, but that location may be the site’s main entrance or an administrative office and not the precise location of the caller.

Under the proposed rules, the transmission of a dispatchable location would be required for MLTS, fixed telephone service, interconnected Voice over Internet Protocol (“VoIP”) services, and Telecommunications Relay Service. The FCC seeks comment on the technical feasibility of the requirement, a comparison of the costs and benefits, and whether the requirement should be extended to any other 911-capable services, such as outbound-only VoIP. The proposed compliance date is February 16, 2020, to coincide with the compliance date of Kari’s Law.

Comment on the FCC’s proposals will be due 45 days after the NPRM’s publication in the Federal Register, with reply comments due 30 days after that date.

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In adopting a Notice of Proposed Rule Making late last week, the FCC took the first step in establishing ground rules for reimbursing Low Power Television, TV translator and FM radio stations affected by the TV spectrum repack. Most of the proposed rules track the statutory direction contained in the Reimbursement Expansion Act (REA) adopted in March, but a few potentially controversial proposals were included as well.

The REA limited reimbursement eligibility for LPTV, TV translators and FM radio stations to stations that were licensed and operating on April 13, 2017. In addition, LPTV stations must establish that they were broadcasting for nine of the twelve months prior to April 13, 2017, which was the date the Incentive Auction officially ended. The FCC is seeking comment on what evidence it should request from licensees to substantiate their eligibility, including potentially requiring licensees to provide program guides and/or power bills.

The FCC is also seeking comment on guidelines for reimbursing licensees, focusing on both the types of expenses that should be reimbursed, and the process for licensees seeking reimbursement. For example, the REA limited eligibility to those LPTV and TV translators that filed a Special Displacement application, so the FCC proposed to limit the reimbursable expenses to just those relating to the displacement of such stations.

While it is likely that no FM radio stations will be permanently displaced as a result of the Incentive Auction, the FCC developed a three-tier proposal to reimburse FM stations for expenses to operate auxiliary stations instead of temporarily ceasing operations while tower work is done. The FCC noted that its rules permit stations to either power down or temporarily discontinue operations for less than thirty days without seeking advance authority, so the FCC proposes to limit reimbursement for constructing new or upgraded FM auxiliary facilities to those stations that will be off-air for extended periods of times.

Under the proposal, FM radio stations off-air for more than 30 days would receive reimbursement for 100% of their expenses to construct or modify existing auxiliary facilities, but stations off-air between 11 and 30 days would receive reimbursement for only 75% of their expenses, and stations expected to be off-air for 1-10 days would receive reimbursement for only 50% of their expenses. To be eligible for reimbursement, FM auxiliary facilities will need to cover 80% of the existing station’s geographic or population coverage.

While the FCC obviously intends to borrow heavily from the existing reimbursement process used by Class A and full-power television stations, it is clear that there are unique circumstances surrounding the reimbursement of expenses for LPTV, TV Translator and FM radio stations that will require further examination. Moreover, Commissioner O’Rielly noted in his separate statement that the FCC has proposed to allocate reimbursement funds based on the length of time that FM radio stations will be off air, but urged parties to submit alternative proposals if the FCC’s assumption that “time equals money” is incorrect.

Comment deadlines have not yet been established, but comments on the FCC’s proposals will be due 30 days after the NPRM’s publication in the Federal Register, with reply comments due 30 days after that date.

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CommLawCenter readers may recall that the FCC adopted a rule in 2013 requiring broadcasters to present aurally on a secondary audio stream (“SAS”) all emergency information provided visually during programming other than during regularly-scheduled newscasts and newscasts that interrupt regular programming.

This “Audible Crawl Rule” went into effect on May 26, 2015, with a few exceptions.  Following a request from the National Association of Broadcasters, the FCC (1) temporarily waived the requirement to aurally convey information regarding school closings via the SAS pending further consideration in a Second Further Notice of Proposed Rulemaking and (2) extended the deadline to begin aurally describing inherently visual graphics, like Doppler Radar maps.  Consideration of the school closings requirement continues, and the FCC has twice extended the compliance deadline for inherently visual graphics.

In today’s Order, the FCC acknowledged that its aspirational reach continues to exceed the grasp of current technology, granting a joint petition from the American Council of the Blind, the American Foundation for the Blind, and the NAB for a five-year extension of the current waiver until May 26, 2023.  To monitor progress on achieving the desired visual-to-aural capabilities, the FCC also required that the NAB file a report with the Commission by November 25, 2020, the midpoint of the five-year extension period.  The report must “detail the extent to which broadcasters have made progress in finding accessible solutions or alternatives to providing critical emergency details generally delivered in a graphic format, as well as the extent to which this waiver continues to be necessary.”

The Media Bureau first granted an 18-month waiver of this requirement in May 2015, in response to an NAB request for a six-month waiver of the compliance deadline.  In 2016, the same coalition of organizations seeking this latest extension requested an additional 18 months to implement an automated approach for compliance with this part of the rule.  That extension would have expired tomorrow, May 26, 2018.

The FCC enacted the Audible Crawl Rule pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, which requires broadcasters to make emergency information available to blind or visually impaired individuals.  Originally adopted in April 2013, Section 79.2(b)(2)(ii) of the FCC’s Rules requires all visual emergency information presented outside of newscasts to be made available via SAS.  The rule applies to visual content that is textual (such as on-screen crawls) and non-textual (graphic displays).  According to the FCC, the aural description of visual but non-textual information must be intelligible and must “accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency.”  Continue reading →