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December 2009
Effective December 28, 2009, hand or messenger-delivered paper filings for the Commission’s Secretary must be submitted at its main building: 445 12th Street, SW, Room TW-A325, Washington, DC 20554.

Previously, the FCC required that such filings be made at an address on Massachusetts Avenue, where they were subjected to radiation to prevent mail-borne contaminants from entering the Commission’s main building. The Massachusetts Avenue facility will be closed.

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December 2009
Earlier this week, the FCC released a Public Notice seeking “specific data on the use of spectrum currently licensed to broadcast television stations.” According to the Public Notice, in other proceedings related to the FCC’s development of a National Broadband Plan some commenters “have expressed concern that the United States will not have spectrum sufficient to meet the demand for wireless broadband services in the near future and have urged the Commission to make available more spectrum for commercial uses.” In response, the Public Notice states that “the FCC is reviewing various spectrum bands to understand if all or a portion of the spectrum within these bands could be repurposed for wireless broadband services.”

The Public Notice assumes that existing allocations are insufficient to meet the growing mobile broadband market, and that spectrum must be reallocated to meet this demand. The questions and issues posed in the Public Notice (re-printed below) are probing and complex, questioning whether broadcast television should be “diminished,” whether multiple broadcasters can “share” a 6 MHz channel, whether the FCC can reduce the amount of spectrum assigned to advanced television licensees and what actions, including adoption of receiver standards, the FCC might take to enable broadcasters to make more efficient use of their spectrum.

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December 2009
Today, the FCC released a Public Notice announcing that as of December 9, 2009, the new FCC Form 323 will become available online in the FCC’s CDBS filing system.

Additionally, the FCC announced the availability of a “Special Use FRN” option in reporting attributable interest holders on the new FCC Form 323. The FCC stated that if a filer “is unable to obtain an FRN for any specific individual required to be reported on Form 323, the electronic form contains a mechanism for generating an interim ‘Special Use FRN’ solely for the purposes of completing the form.” The Special Use FRN is only to be used in filing biennial ownership reports on FCC Form 323 and may not be used for any other purpose at the FCC. According to the Public Notice, this option should be used only when necessary and filers should use their “best efforts” to obtain FRNs from all attributable interest holders. The FCC indicates that those who take advantage of the Special Use FRN are still expected to later obtain a “fully compliant” FRN which must be used in all future biennial ownership report filings.

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November 2009
On December 1, 2009, the FTC’s newly-revised Guides on Endorsements and Testimonials will become effective. Broadcasters, including their on-air talent, need to know when a claim is an endorsement/testimonial, what on-air disclosures may be required, and what their obligations are to ensure that claims are truthful and not misleading. These endorsement/testimonial-related issues can arise in a variety of contexts, including when station personnel voice commercials, prepare copy for advertisers, engage in banter regarding a product or service, serve as a spokesperson for an advertiser, or provide content to their station websites.

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November 2009
In a Public Notice released by the FCC today, the Media Bureau has announced that it has extended to January 11, 2010, the prior December 15, 2009 deadline for commercial radio and television broadcast station licensees to file their Biennial Ownership Reports on revised FCC Form 323.

This announcement comes as a great relief to licensees of commercial broadcast stations given that the electronic version of revised FCC Form 323 is not yet available on the FCC’s CDBS system for uploading of data.

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November 2009
All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 to report whether their stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. The FCC Form 317 is due by December 1, 2009. Electronic filing of FCC Form 317 is mandatory. Paper versions will not be accepted for filing unless accompanied by an appropriate request for waiver.

Ancillary or supplementary services are all services provided on the portion of a DTV station’s digital spectrum capacity or bitstream that is not necessary to provide the required single free, over-the-air signal to viewers. Thus, any video broadcast signal provided at no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”

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11/11/2009
In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), the Ninth Circuit held that unsolicited text messages to mobile phones sent by a retailer may constitute a “call” in violation of the Telephone Consumer Protection Act (the “TCPA”). This decision has sparked an increase in consumer class actions filed against retailers who send advertisements to consumers by text message.

The TCPA makes it unlawful “to make any call” using an automatic telephone dialing system (“ATDS”) to, among other things, a mobile telephone or pager. 47 U.S.C. Section 227(b)(1)(A). Congress enacted the TCPA in 1991, before text messaging was available, and intended it to prohibit automated voice calls from telemarketers to mobile phones. The U.S. Court of Appeals for the Ninth Circuit, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), extended this consumer protection to text calls made using ATDSs.

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November 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
December 1, 2009 is the deadline for broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if they have one.

Under the FCC’s EEO rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

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10/28/2009
Last week the FCC launched a Notice of Proposed Rulemaking (NPRM) proposing to adopt six “open Internet” rules that would bind all broadband access providers, including those providing mobile and satellite broadband services. If adopted, the rules could have pervasive and lasting effects in many industry sectors, including broadband, voice and video service providers, infrastructure, device, chipset and other component vendors, content publishers and distributors, software publishers, and application service providers.

The NPRM abandons the “net neutrality” moniker in favor of a new phrase, “the free and open Internet.” Nonetheless, views on every aspect of the debate remain highly polarized, driven by vast economic stakes in the outcome, disagreements about the factors that have made the Internet a success, philosophical differences about the nature of the Internet and disagreement over the role of the FCC in 21st century communications. The NPRM puts the FCC at center stage in the debate for now, but the federal courts and Congress may take prominent or even decisive roles. Some parties, notably including two of the five sitting FCC commissioners, question the FCC’s legal authority to adopt and enforce the rules it has proposed. If the federal courts agree, the FCC will have to re-tool its approach or look to Congress to expand its jurisdiction.

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10/16/2009
The FCC issued two Public Notices today which, together: (1) impose a freeze on the filing of all FM commercial and noncommercial educational (“NCE”) minor change applications from 11:59 pm, November 25, 2009, through December 18, 2009; (2) impose a freeze, beginning today, October 16, 2009, through December 18, 2009, on any applications proposing to modify the reference coordinates of 67 vacant non-reserved FM Band allotments listed on Attachment A of the Public Notice (attached hereto), as well as on any petitions or counterproposals that propose a change in the channel, class, community, or reference coordinates of those allotments; and (3) create a filing window for applications for those 67 vacant FM allotments reserved for NCE use.

With respect to the NCE filing window, the FCC announced that it will accept applications for the vacant 67 NCE FM allotments on Channels 221 through 300 from Friday, December 11, 2009, until Friday, December 18, 2009.

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