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The FCC’s revised rules for its Experimental Radio Services (“ERS”) were published in today’s Federal Register, and become effective on May 29, 2013 (except for several rules that contain new or modified information collection requirements, which require further approval by the Office of Management and Budget). These revised rules allow parties, including manufacturers, entrepreneurs, and students, to engage in a wide variety of experiments involving radio spectrum, including, for example, technical demonstrations, equipment testing, limited market studies, and development of radio techniques. The FCC’s revisions streamline and modernize the ERS rules, allowing parties to more quickly develop new technologies and products for the marketplace.

One of the primary changes to the rules is the creation of three types of ERS licenses: (1) Program Licenses; (2) Compliance Testing Licenses; and (3) Medical Testing Licenses. An applicant for a license must demonstrate in its application that it meets the eligibility requirements, must provide a certification of radio frequency (RF) expertise or partner with another entity with such expertise, and must explain the purpose of its experiment. Each license has a term of five years and is renewable.

Under a Program License, the license holder is permitted to conduct an ongoing program of research and experimentation under a single authorization without having to obtain prior FCC consent for each distinct experiment or series of unrelated experiments, as would have been required under the FCC’s prior rules. Eligibility is limited to colleges, universities, research laboratories, manufacturers of radio frequency equipment or end-user products with integrated radio frequency equipment, and medical research institutions. Authorized entities must provide a “stop buzzer” point of contact, identify the specifics of each proposed experiment in advance of the testing on a public web database established by the FCC, and post a report detailing the results of each experiment upon completion of the experiment (A “stop buzzer” point of contact is a person who can address interference concerns and cease all transmissions immediately if interference occurs).

A Compliance Testing License allows a test lab to conduct testing for FCC equipment authorizations. Such licenses are available to labs that are currently recognized for RF product testing as well as any other lab that the FCC finds has sufficient expertise to undertake such testing. Unlike a Program Licensee, a compliance testing licensee does not have to identify a “stop buzzer” point of contact, provide any notification period prior to testing, or file any narrative statement regarding test results. Testing is limited to those activities necessary for product certification.

The third type of experimental license is a Medical Testing License. This license allows an eligible entity to conduct clinical trials of medical devices (i.e., a device that uses RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring). Only health care facilities (defined as hospitals and other establishments that offer services, facilities and beds for beyond a 24-hour period in rendering medical treatment, as well as institutions and organizations regularly engaged in providing medical services through clinics, public health facilities, and similar establishments, including government entities and agencies) are eligible for this type of experimental license. Medical devices tested under a Medical Testing License must comply with the FCC’s Part 15, 18 and 95 rules. Authorized health care entities must provide a “stop buzzer” point of contact and also follow the same notice and reporting requirements as Program Licensees. A Medical Testing Licensee is required to file a yearly report with the FCC on the activity that has been performed under the license.

The FCC’s other changes to its ERS rules include:

  • consolidating all of the experimental licensing rules into Part 5 of the FCC’s Rules;
  • consolidating its rules regarding marketing of unauthorized devices;
  • allowing demonstrations in residential areas of devices not yet authorized, so long as the relevant spectrum licensee is working with the device manufacturer;
  • permitting, without an experimental license, the operation of devices not yet authorized, so long as the devices are operated as part of a trade show demonstration and at or below the maximum power level permitted for unlicensed devices under the FCC’s Part 15 rules;
  • allowing more flexible product development and market trials;
  • standardizing and increasing the importation limit for devices that have not yet been authorized to 4,000 units; and
  • codifying the existing practice of allowing RF tests and experiments conducted within an anechoic chamber or Faraday cage without the need for obtaining an experimental license.

Parties interested in learning more about the FCC’s revised ERS rules should contact their communications counsel for advice.

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Posted in: Spectrum
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Recently, TVNewsCheck.com ran a short item noting that a large broadcast group (not a network owned and operated group) and a large multichannel video distributor (MVPD) successfully concluded carriage negotiations. There was no interruption of service. Given the successful outcome, I was surprised to see that someone posted a comment regarding the piece saying the deal illustrates why the FCC should tighten its broadcast ownership rules. No matter how many times I read comments of this sort, I am perplexed that people actually believe it’s a good thing for the government to mandate that broadcasters be the underdogs in all major negotiations that impact the quality and availability of broadcasters’ programming. If anything, government policy should encourage broadcasters to grow to a scale that is meaningful in today’s complex television marketplace. Not one of the other major distributors makes its programming available for free.

If independent (non-O&O) broadcasters aren’t permitted to achieve a scale large enough to negotiate effectively with upstream programmers and downstream distributors, you won’t have to wait long see high cost, high quality, high value programming available for free to those who choose to opt out of the pay TV ecosystem. It’s much better to have two, three or four strong competitors in each market, owned by companies that can compete for rational economics in the upstream and downstream markets, than to have eight or more weak competitors, few of which can afford to invest in truly local service or negotiate at arms-length with program suppliers and distributors.

For those who have not been paying attention, the television market has changed profoundly in the past 20 years. The big programmers and the big MVPDs have gotten a whole lot bigger. The largest non-O&O broadcast groups have grown too, but not nearly as much. Fox, Disney/ABC, NBCU and the other programmers are vastly bigger companies with incomparable market power vis-a-vis even the largest broadcast groups. The same is true of the large MVPDs, which together serve the great majority of television households.

There’s nothing inherently bad about big content aggregators and big MVPD distributors. And anyway, they are a fact of life. Despite their size, each is trying to deliver a competitive service and deliver good returns for shareholders. That’s what they are supposed to do, and in general (with a few exceptions) they serve the country well. But again, they are much, much larger than even the largest broadcast groups. If you believe that having a viable and competitive free television option is a good thing, that’s a problem.

So in response to the suggestion that the FCC further limit the scale of broadcasters, I reply: why does the government make it so damn hard for the only television service that is available for free to bargain and compete with vastly larger enterprises that are comparatively unregulated?

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As our readers are aware, we did a great deal of reporting before and after the first-ever Nationwide Emergency Alert System (EAS) Test conducted on November 9, 2011. The purpose of that test was to assess the readiness and effectiveness of the system in the event of an actual national emergency. Broadcasters, as well as cable, satellite, and wireline providers across the country (EAS Participants), all took part in the test. For a quick refresher, see my previous posts on the test here, here, here, here, and here. Late this past Friday, the FCC’s Public Safety and Homeland Security Bureau released a report summarizing the outcome of the national test entitled: “Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test”.

As the FCC and FEMA have made clear on numerous ocassions, the national EAS test was not intended to be a pass or fail event, but was to be used to identify and address the limitations of the current EAS. The Report concludes that the national EAS alert distribution architecture is sound and that the national test was received by a large majority of EAS Participants and could be seen and heard by most Americans. The results of the test show that more than 80 percent of EAS Participants across the country successfully received and relayed the FEMA test message.

The Report also indicates, however, that there are a number of technical areas where the system can be improved. According to the Report, among the problems that impeded the ability of EAS Participants to receive and/or retransmit the emergency Action Notification (EAN) issued by FEMA, and of the public to receive it, were:

  • Widespread poor audio quality;
  • Lack of a Primary Entry Point (PEP) in an area to provide a direct connection to FEMA;
  • Use of alternatives to PEP-based EAN distribution;
  • The inability of some EAS Participants either to receive or retransmit the EAN;
  • Short test length; and
  • Anomalies in EAS equipment programming and operation.

As a result of its findings, the Report recommends that another nationwide test be conducted after the FCC commences a number of formal rulemaking proceedings seeking public comment on steps to improve EAS related to these and other shortcomings.

In its Report, the Bureau also recommends that, in connection with any future EAS testing, the FCC develop a new Nationwide EAS Test Reporting System to improve the electronic filing of test result data. The Report also encourages the Executive Office of the President to reconvene the Federal EAS Test Working Group to work with Federal partners and other stakeholders to use the results of the test to find ways to improve EAS and plan for future nationwide tests.

Despite the audio problems and other issues identified in the Report with respect to the nationwide EAS test, the first ever test appears to have achieved its goal of helping the FCC, FEMA, and EAS Participants identify areas where EAS can be improved in the event of an actual emergency. If the recommendations outlined in the Report are implemented by the FCC, the public will likely have a number of opportunities during upcoming rulemaking proceedings to provide their input to the FCC on ways to further improve the reliability of the nation’s EAS.

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Posted in: Cable/Satellite TV
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This morning, the FCC released a Public Notice announcing that, commencing immediately and until further notice, it will no longer accept modification applications (or amendments to modification applications) from full power and Class A television stations if the modification would increase the station’s coverage in any direction beyond its current authorization.

The Public Notice also indicates that the FCC will cease processing modification applications that are already on file if the modification will increase the station’s coverage in any direction. Applicants with a pending modification application subject to the freeze are being given 60 days to amend their application to prevent an increase in coverage (or seek a waiver), thereby allowing those applications to be processed by the FCC. Modification applications that are not amended within that period will not be processed until after the FCC releases its order in the Spectrum Auction proceeding, and at that point will be subject to any new rules or policies adopted in that rulemaking that would limit station modifications.

With regard to Class A stations specifically, the FCC will also not accept Class A displacement applications that increase a station’s coverage in any direction. Class A applications to implement the digital transition (flash cut and digital companion channels) will continue to be processed as long as they comply with the existing restrictions on such applications.

The FCC states that the reason for putting modification applications in the deep freeze is that:

We find that the imposition of limits on the filing and processing of modification applications is now appropriate to facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated. The repacking methodology the Commission ultimately adopts will be a critical tool in reorganizing the broadcast TV spectrum pursuant to the statutory mandate. Additional development and analysis of potential repacking methodologies is required in light of the technical, policy, and auction design issues raised in the rulemaking proceeding. This work requires a stable database of full power and Class A broadcast facilities. In addition, to avoid frustrating the central goal of “repurpos[ing] the maximum amount of UHF band spectrum for flexible licensed and unlicensed use,” we believe it is now necessary to limit the filing and processing of modification applications that would expand broadcast television stations’ use of spectrum.

So once again, television broadcasters are tossed into a digital ice age, unable to adapt their facilities to shifting population areas, which seems to be the polar opposite of what Congress intended in requiring that spectrum incentive auctions not reduce broadcast service to the public. Aggravating the situation is that, unlike some of the DTV transition application freezes, the FCC is not limiting this freeze to large urban markets where it hopes to free up broadcast spectrum for wireless broadband. Indeed, modification applications were already less likely in those heavily populated urban areas because of the existing spectrum congestion that makes modifying a TV station’s signal difficult.

As a result, the broadcasters most likely to be hurt by the freeze are those in more rural areas–areas that have ample available spectrum for broadcasting and broadband, and which the FCC has said are not really the target of its spectrum incentive auction. Those broadcasters will have to hope that the FCC is serious about considering freeze waiver requests. Otherwise, rural Americans will once again see improvements in their communications services delayed while the FCC focuses all its attention on securing more spectrum for broadband in urban population centers.

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Marking the end of a winter that has been way too long is an annual rite of Spring for the media industry–the National Association of Broadcasters’ Show in Las Vegas. This year’s Show is taking place from April 6th to the 11th at the Las Vegas Convention Center. The NAB touts the Show as “the world’s largest media and entertainment event covering the development, management and delivery of content across all mediums.” The growing technological and business diversity of the Show is reflected in the NAB’s additional description of the Show as being “home to the solutions that transcend traditional broadcasting and embrace content delivery to new screens in new ways.” That is certainly true, with the diversity of exhibitors covering every sector even tangentially related to media and content production.

Of course, for all that the Show itself is, one of the most compelling reasons to spend a few pleasant April days in Las Vegas is to reconnect with friends and colleagues in the industry, as well as meeting in person a lot of the people that you have previously known only by phone or email.

This year’s Pillsbury contingent includes six of our communications attorneys, including myself, Dick Zaragoza, Lew Paper, Scott Flick, Miles Mason, and Andrew Kersting.

If you see us at the Show, please stop and say hello. You can also reach out to us via email at the Show by clicking on the links above. They take you to our respective bios at Pillsbury, including email addresses.

If you are headed to the Show, we look forward to seeing you there. For those who won’t be there, I’ll be writing a post after the Show summarizing some of the highlights.

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Posted in: Radio
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After nine months of rumors and uncertainty as to where the FCC is headed after last summer’s indecency decision by the Supreme Court in FCC v. Fox Television Stations, Inc. (which we discussed in this post), the FCC today released a very brief public notice that:

  1. Announces the FCC staff has disposed of over one million indecency complaints (which it states is over 70% of those that were pending at the FCC), “principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent.”
  2. Announces that the FCC will continue to actively investigate “egregious indecency cases.”
  3. Announces that it is opening up a new docket (GN Docket No. 13-86), and is seeking comments from the public in that docket as to whether the FCC should change its broadcast indecency policies, and if so, how. While not limiting the breadth of potential changes, the FCC specifically asks whether it is time to go back to the old policy of prosecuting on-air expletives only where there is “deliberate and repetitive use in a patently offensive manner,” or stick with the more recent policy of pouncing on a single fleeting expletive, the policy that led to the Supreme Court’s 2012 decision. The Public Notice also asks if the FCC should treat “isolated (non-sexual) nudity the same or different than isolated expletives?”
  4. Finally, emphasizing again the broad nature of the FCC’s proposed review, the Public Notice asks commenters “to address these issues as well as any other aspect of the Commission’s substantive indecency policies.”

The Public Notice indicates that comments will be due 30 days after the request for comments is published in the Federal Register, with reply comments being due 30 days after that.

While the timing of the Public Notice, just ahead of Chairman Genachowski’s (and Commissioner McDowell’s) announced departure from the FCC, is interesting, more interesting is the “spontaneous” look of the document. In an agency that can readily produce requests for comments that are hundreds of pages long, and on a subject that has produced reams of pleadings and precedent over several decades, the substantive portion of the Public Notice is but a few paragraphs long–a few paragraphs that open the door to a fundamental rethinking of the FCC’s approach to indecency.

The Public Notice therefore has the look of a document that was not long in the making, and which may have emerged as result of a departing Chairman beginning to move the ball forward for his successor. The process forward will likely be complex and arduous, and the ultimate result is anyone’s guess, but by at least launching the proceeding before his departure, Chairman Genachowski will absorb some of the political heat that could have otherwise fallen on his successor, while also challenging that successor to address an issue that has become a significant distraction and consumer of increasingly scarce FCC resources.

While also a result of its brevity, the lack of any “initial” or “tentative” conclusions by the FCC in the document gives the impression that the FCC may indeed be ready to commence a fundamental reexamination of indecency policy, and is not just going through the motions of collecting comments before proceeding on a largely predetermined route. It is not asking so much how it should proceed in light of the Supreme Court’s decision, but how it should proceed in general. For those who loudly proclaim that the FCC has failed in its duties as a “content cop”, as well as broadcasters struggling to figure out on a minute by minute basis what program content might cross the FCC’s invisible indecency line, a fresh look at the issue will be welcome. Whether this “reset” can resolve the many tough questions surrounding indecency enforcement is, however, another question entirely.

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March 2013

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Delay in Providing Access to Public Inspection File Leads to Fine
  • FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations

Radio Station Fined $10,000 for Not Providing Immediate Access to Public File

This month, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) in the amount of $10,000 against a Texas noncommercial broadcaster for failing to promptly make its public inspection file available. For the delay of a few hours, the Commission proposed a fine of $10,000 and reminded the licensee that stations must make their public inspection file available for inspection at any time during regular business hours and that a simple request to review the public file is all it takes to mandate access.

According to the NAL, an individual from a competitor arrived at the station at approximately 10:45 a.m. and asked to review the station public inspection file. Station personnel informed the individual that the General Manager could give him access to the public files, but that the General Manager would not arrive at the station until “after noon.” The individual returned to the studio at 12:30 p.m.; however, the General Manager had still not arrived at the studio. According to the visiting individual, the receptionist repeatedly asked him if he “was with the FCC.” Ultimately, the receptionist was able to reach the General Manager by phone, and the parties do not dispute that at that time, the individual asked to see the public file. During that call, the General Manager told the receptionist to give the visitor access to the file. According to the visitor, when the General Manager finally arrived, he too asked if the individual was from the FCC, and then proceeded to monitor the individual’s review of the public file.

After the station visit, the competitor filed a Complaint with the FCC alleging that the station public files were incomplete and that the station improperly denied access to the public inspection files. The FCC then issued a Letter of Inquiry to the station, requesting that the station respond to the allegations and to provide additional information. The station denied that any items were missing from the public file and also denied that it failed to provide access to the files.

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At the end of every quarter, TV stations across the land must electronically file with the FCC a Form 398–The Children’s Television Programming Report. However, stations attempting to do that filing for the first quarter of 2013 are discovering that the FCC’s online filing system for those forms ends with the fourth quarter of 2012. As a result, it is preventing many TV stations from preparing their electronic report for the first quarter of 2013, rejecting all efforts to select “First Quarter 2013” as the report to be filed.

At first, it appeared that the FCC had bought into the “Mayan Prophecy” that the world was ending in December 2012, marking the end of the Mayan (and perhaps the FCC’s) calendar. And, had the world actually ended in 2012, filing a Form 398 covering the first quarter of 2013 would have indeed ranked low on most broadcasters’ “to do” lists. However, with 2013 well under way, TV stations are now flummoxed as to how to get the FCC’s electronic filing system to allow the preparation and filing of a first quarter 2013 kidvid report.

Fortunately, there is an answer, but it requires a little background. We reported in a 2010 KidVid Advisory that the FCC had suddenly begun requiring stations to enter their FCC Registration Number and password as the final step before permitting a Form 398 to be filed. As it turned out, this was apparently the first step in creating a new FCC Form 398 filing system.

In July 2012, the FCC released what it termed an “alternate” link for accessing the Form 398 filing system and updated its user manual to indicate that the web address for filing the form is the alternate link. However, the FCC’s main Children’s Television Programming page on the Internet continues to show that the original link is the one to use for filing a Form 398, and until this quarter, that original link has continued to work correctly. Of course, most TV stations just have the original link bookmarked, and have no reason to visit the FCC’s website/user manual to see if the filing procedures have been changed. Adding to the confusion is the fact that following the original link does not generate a warning or error message, but takes you to the same filing page stations have been using for years. It is only when a station tries to create a report for first quarter 2013 that a problem arises.

As a result, the “alternate” link is not just an alternate any more, and must be used to file all post-2012 kidvid reports. So, from here on out, use this link for filing your kidvid reports: http://licensing.fcc.gov/KidVidNew/public/filing/submit_login.faces

Note also that, at the new link, you will have to provide your call sign, Facility ID, FCC Registration Number and Password to even be able to log into the system. This is all information you previously needed to file a Form 398, but you supplied it at the end of the filing process. Now, you can’t even get started without it. For TV stations that have been banging their heads against the wall trying to figure out why they can’t prepare, much less file, their Form 398, using the alternate link should solve that problem. It may be a small problem compared to the end of the world, but then the Mayans never had to deal with online filing.

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As we have discussed at great length in the past, the FCC’s rules require that certain video programming delivered online be captioned if the programming previously aired on television with captions. The rules kicked in on April 30 of last year, and all video programming that appeared on television with captions after that date is considered “covered Internet Protocol (IP) video” and will ultimately need to be captioned when being shown online.

The first step of the captioning phase-in occurred on September 30, 2012. Since that date, stations have been required to display captioning for prerecorded full-length programming delivered via IP if the programming was first aired on television with captions on or after the April 30 date noted above.

The second phase of the FCC’s IP captioning rules begins March 30, 2013 (a Saturday), at which time the FCC’s IP captioning rules require all live and near-live programming subject to the rules and shown on television with captions to be captioned when delivered online. The FCC’s definition of “live” or “near-live” captures all programming performed simultaneously or recorded within 24 hours of its first transmission to a video programming distributor. Note that as long as they do not constitute “substantially all” of a full-length program, online video clips are currently exempt from the IP captioning rules.

As a result, the question we probably receive most often from clients about online captioning is: what exactly does the FCC mean by “substantially all” of a full-length program? It’s a good question that lacks a precise answer. The FCC intentionally decided not to provide a specific threshold for the length or number of clips aired that would constitute “substantially all” of a program. According to the FCC, it did not see “any evidence that Congress sought to exclude only clips of a certain duration or percentage of the full-length program.”

Parties should keep in mind, however, that the FCC will not allow them to game the system by simply “shaving” off a few minutes or brief segments of a full length program in order to avoid the IP captioning obligation. The FCC emphasized that “if there is clear evidence that an entity has developed a pattern of attempting to use video clips to evade its captioning obligations,” the FCC may find that a rule violation has occurred.

There is of course more to come. The captioning requirements for “full length” and “live or near-live” programming are just the beginning of the new IP captioning obligations being implemented in the near future. The next deadline is coming up soon with the September 30, 2013 requirement that all pre-recorded programming that is edited for Internet distribution be captioned for online viewing. Also, don’t forget there are separate captioning compliance deadlines for captioning of IP video programming that previously aired on television prior to the effective date of the rules, but that is shown again on television with captions after the effective date. Those phased-in captioning requirements are scheduled to take place between March 2014 and March 2016, with progressively shorter periods to caption the programming for IP video after it airs on television with captions.

As was the case with the original broadcast captioning rules, each phase-in “deadline” shrinks the amount of programming exempt from the online captioning requirement while requiring the distributor to tackle ever more complex captioning issues. IP captioning will therefore consume a growing portion of the attention of those posting broadcast video online. The big difference is that broadcast captioning was phased in over eight years (twelve years for Spanish language programming), whereas online captioning is being phased in on a much faster schedule.

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Posted in: Closed Captioning
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While in the works for a while, today’s formal announcement by FCC Commissioner McDowell that he will be departing the FCC leaves a hole in the FCC’s ranks that will be difficult to fill. In many regards, Commissioner McDowell was a throwback to an earlier time, both at the FCC and in Washington, in that his tenure was distinguished not just by his congenial nature, but by an abiding adherence to his regulatory principles, rather than to reaching a particular result. While I suspect he might bristle at being described as a “rational regulator”, preferring instead to be known as a “devoted deregulator”, Commissioner McDowell represented a common-sense approach to the communications industry and the business of regulating it.

Since the job of a lawyer is to obtain for a client the best result legally possible, you would think that lawyers would be big fans of the “predictable vote”–the commissioner whose policy positions are so embedded that there is little doubt as to where they will stand on any particular issue. And of course, if three of the five commissioners are on your side of an issue, that’s a pretty warm and fuzzy place to be. The problem, however, is that for every time three of the five commissioners support your position, there will be a time when three of the five do not.

For that reason, an experienced lawyer will always prefer an inquisitive and open-minded regulator over an ideologue, even when it is an ideologue that agrees with you (today). While the independent-minded regulator will make you work to persuade them each and every time, the opportunity to persuade them is never foreclosed. If you fail to persuade them that your cause is just, then the failure is yours, and not just the result of an agency formalizing a preordained result.

Over the years, the FCC has been blessed with a number of commissioners that have been particularly good at compartmentalizing natural biases, and giving the parties before them a full and fair opportunity to make their case. Probably not coincidentally, many of these same commissioners have had both a healthy sense of humor and humility, putting those around them at ease and creating an environment conducive to an open and lively discussion of the issues. A final characteristic found among this select group–and helpful to anyone in Washington–is the ability to separate the advocate from the issue, recognizing that just because you disagree with the argument that the advocate must make today on behalf of a client doesn’t diminish the advocate who, like the commissioner, is just trying to do their job to the best of their ability, and will have to make a different argument on behalf of a different client tomorrow.

Unfortunately, these characteristics are rarely those that will get you nominated by a President, or see you through a partisan confirmation process, so commissioners with all of these characteristics will inevitably tend to be the exception rather than the rule. Because of this, Commissioner McDowell will be missed by many who work at, and with, the FCC. In a town where some individuals have countdown calendars marking the number of days remaining in a particular government official’s tenure, it is perhaps the ultimate backhanded Washington compliment that the most arresting part of Commissioner McDowell’s departure announcement was where it noted he had been at the FCC for “nearly seven years.” It’s hard to believe it has been that long.