Congress Makes Sweeping Changes to Spectrum Policy; Authorizes TV Band Incentive Auctions

Posted by Stephen E. Coran on February 21, 2012

On Friday, overwhelming majorities of both the House and the Senate passed a payroll extension bill that includes important changes to spectrum policy.  The legislation is expected to raise $15 billion for the Federal Treasury and to create hundreds of thousands of jobs. The details of the legislation are now delegated to the NTIA, the FCC and other agencies to develop reports and to adopt rules to implement Congress' objectives. 

Below is our take on some of the main provisions of the legislation as it applies to spectrum policy and wireless broadband services. 

Incentive Auctions and Band Clearing

Aside from public safety, the main driver of spectrum legislation was the need to address the spectrum crunch (real or imagined) for mobile wireless interests. To do this, Congress decided to offer TV broadcasters compensation to voluntarily relinquish their spectrum for repurposing by the FCC for broadband uses. Congress granted specific authority for a two-phase voluntary "incentive auction" that would clear a portion of the TV band (Channels 2-51) for mobile interests and, as part of that process, change the TV "white space" landscape. Because Channel 51 is adjacent to the Lower 700 MHz A Block (formerly Channel 52), the FCC is expected to attempt to "re-pack" the TV stations into the lower portion of the UHF band (beginning with Channel 14). The auction process is expected to take several years.

Under the legislation's language, "relinquishment" of a TV station means (1) relinquishing all usage rights to a channel, (2) relinquishing a UHF channel for a VHF channel, or (3) sharing a channel with another TV station. In lieu of relocation reimbursement, TV stations can obtain, as appropriate, a waiver of FCC rules to make flexible use of their spectrum so long as the TV broadcaster provides at least one programming stream at no charge. Depending on how the FCC ultimately interprets this provision, TV broadcasters could obtain a limited right to offer broadband on their spectrum alongside video service, but only if they forego relocation reimbursement.

Significantly, the FCC is required to reallocate and auction the T-Band (470-512 MHz, i.e., Channels 14-20) used by public safety in 11 major markets, with the spectrum sale used to cover relocation costs. Although not stated in the legislation, the FCC can also clear other users -- land mobile, for instance -- out of the TV bands. The FCC also can relocate radioastronomy users on Channel 37 at a cost of up to $300 million. The ability to relocate Channel 37 users could be a significant band-clearing opportunity because that channel operates as a nationwide encumbrance in the heart of the TV band.

TV White Spaces

Early House Majority versions of the bill would have required the FCC to auction all unlicensed spectrum (though it was unclear whether this included white space spectrum that had previously been allocated). The version of the legislation that passed essentially creates two flavors of white space.

  • First, the existing TV white space and the TV white space remaining after the re-packing -- remember, that's several years away -- will be available for fixed and mobile wireless use. There will no doubt be a loss of TV white space in many markets as a result of the incentive auction, but Congress and FCC staff expect that there will vacant TV channels will remain in many rural areas after the re-packing. The re-allocation of Channels 14-20 will create additional spectrum in major markets for TV stations to relocate, and the possible relocation of Channel 37 radioastronomy users will also clear spectrum.
  • Second, the FCC has the discretion to use relinquished spectrum or other spectrum to implement guard bands that would, in practice, create a nationwide unlicensed allocation as recommended in the National Broadband Plan. The FCC may "permit" the use of guard band for unlicensed use, but is not required to, and the guard bands must "be no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands." (Reports were that earlier versions of the bill used the phrase "technically necessary.") Based on our discussions with the FCC, they see a guard band acting as a "duplex gap" band between LTE-Advanced uplink/downlink spectrum allocations, though this thinking is only preliminary and the ultimate band plan, channel sizes and technical rules will be determined through an FCC rulemaking proceeding. The limits of the FCC's discretion on guard bands appear to be subject to interpretation.

3550-3650 MHz

Earlier versions of both the Senate and House bills would have required the FCC to auction the 3550-3650 MHz band (with certain exceptions). The band is not allocated for commercial use; rather, the Department of Defense uses it at present. The final version removed the auction mandate, but requires NTIA to give priority to options involving exclusive non-Federal use and to choose sharing only if NTIA and OMB determine that relocation of a Federal user is not feasible because of technical or cost constraints. Thus, the 3550-3650 MHz band could be subject to auction ("exclusive use") unless it is not feasible to relocate Federal users.  If that's the case, commercial and Federal users could share the band under technical rules the FCC would adopt. The radar uses in the 3550-3650 MHz band may be difficult to relocate, which would make the case for shared unlicensed use easier.

Other Unlicensed Bands

The spectrum legislation identifies two additional bands for possible unlicensed use. First, NTIA, the Department of Defense and other agencies will study spectrum-sharing and risks to incumbent Federal users if unlicensed U-NII devices were allowed to operate in the 5350-5470 MHz and 5850-5925 MHz bands – a total of 195 MHz of spectrum. The agencies will issue reports on their findings. The report for the 5350-5470 MHz band is due in eight months, and the report on the 5850-5925 MHz band is due in 18 months.

Wireless Facilities Deployment

An under-appreciated section of the bill provides significant benefits to wireless companies, fixed and mobile, that want access to towers owned by state and local governments. Under the legislation, a local government must approve an "eligible facilities request" to modify an existing wireless tower or base station that does not "substantially change" the physical dimensions of the tower or base station. An "eligible facilities request" is a request to collocate new transmission equipment, remove transmission equipment or replace transmission equipment. The FCC will decide how to interpret "substantial change" pursuant to a rulemaking proceeding. In addition, GSA is required to develop master contracts for wireless antenna structures on property owned by the Federal government.

Conclusion

The new spectrum legislation is a beginning, not an end. Many details have yet to be determined, but many interests – including broadband providers, whether fixed or mobile, broadcasters, public safety users and others -- can find something to like in the new legislation.

FCC Fines Radio Broadcaster $44,000 For Lack of Sponsorship Identification

Posted by David G. O’Neil on February 10, 2012

Last week the Federal Communications Commission fined a radio broadcaster $44,000 for violating the Commission’s sponsorship identification rules. Even more of an attention getter than the amount of the fine is the way FCC determined the fine -- by fining the broadcaster for each violation. 

In response to an FCC inquiry, the broadcaster stated that between March 2009 and May 2009, it aired program matter on behalf of Workers Independent News (“WIN”) in exchange for consideration.   The program matter consisted of 45 ninety-second spots, 27 fifteen-second promotional announcements, 2 two-hour programs and 1 one-hour program.  The broadcaster claimed that the appropriate sponsorship identifications were made for 34 of the 45 ninety-second spots.  The broadcaster stated that these 11 spots referenced WIN and the narrator but did not specifically state that the program was sponsored, paid for or furnished by WIN.  The announcements were directed toward a state legislative issue impacting the local economy.

The broadcaster argued that it had satisfied the sponsorship identification requirements by 1) identifying the sponsor by name in each announcement and 2) including each announcement within the other commercial matter for WIN, not within the station’s news content.  The FCC rejected each argument.  The FCC reminded the broadcaster that the purpose of the sponsorship identification rule is to provide listeners and viewers with information concerning who is attempting to persuade them.  The FCC determined that the mere mention of WIN did not provide sufficient information to the listener.  The FCC determined that Section 73.1212(f) of the Commission’s Rules, which considers mentioning the sponsor’s corporate or trade name during commercial matters as acceptable sponsorship identification, did not apply in this instance.

The FCC similarly rejected the broadcaster’s argument that the announcements were included within other commercial matter and not within the station’s news programming.  The FCC concluded that because the 11 announcements focused on a state legislative issue impacting the local economy, it would not be apparent to the listeners that the announcements were indeed sponsored programming, even if commercial programming surrounded the announcements.

The FCC’s analysis and determination is not surprising, but the way the FCC arrived at the $44,000 fine is.  The FCC relied upon its forfeiture guidelines, which establish a base forfeiture amount of $4,000 for each sponsorship identification violation.  The FCC multiplied this amount by the 11 announcements to arrive at the $44,000 fine, thereby treating each announcement as a separate violation.  While the FCC has discretion here, the fine seems somewhat excessive given that the broadcaster complied with the sponsorship identification requirements for the program length material and for an overwhelming majority of the announcements.  The FCC should have taken this into consideration and imposed a lesser fine.  This could represent a shift in how the FCC determines forfeitures in the future.  Regardless, this decision should serve as a wake up for broadcasters of the importance of complying with the Commission’s rules.

The message from the Commission is clear and unmistakable.   The agency will fine broadcasters for each violation regardless of mitigating circumstances.  Substantial or good faith compliance will not be enough.  Broadcasters should review their procedures for broadcasting commercial matter both to determine compliance with the sponsorship identification rules and to make sure that no commercial matter slips through which inadvertently does not include the requisite sponsorship identification.

Will M.I.A.'s "Middle Finger Malfunction" at the Super Bowl Lead to FCC Fines?

Posted by Jonathan E. Allen on February 06, 2012

Stop me if you’ve heard this before.  An entertainer’s provocative gesture during the Super Bowl halftime show riles viewers and leads to calls for action by the Federal Communications Commission. Sound familiar? 

This football season, the entertainer in question is musical artist M.I.A., who drew attention when she “flipped off millions of viewers during TV’s most-watched telecast of the year.”  During her halftime performance, she made the “middle finger” gesture while singing a song in which the “S-Word” was implied but not clearly sung. The incident, which some have called a “middle finger malfunction,” recalls the 2004 Super Bowl halftime show involving Janet Jackson.  The FCC imposed $550,000 in fines ($27,500 per station) against Viacom-owned CBS broadcast stations for Ms. Jackson’s infamous “wardrobe malfunction,” only to have the fines twice stricken by an appellate court – once on appeal from the FCC, and once on remand from the U.S. Supreme Court. 

So far, the FCC has not commented regarding whether any indecency complaints have been filed with the Commission about last night's program. Thanks to statutory changes made a few years ago, the maximum forfeiture penalty for broadcasts of indecent, obscene or profane material is now higher than when the Jackson case was decided: $325,000 for each violation or each day of a continuing violation, capped at $3 million for a single act or failure to act. 

I've previously blogged about the U.S. Supreme Court's review of the FCC’s authority to regulate broadcast indecency with respect to “fleeting expletives” (language such as the “F-Word” or the “S-Word”) and nude buttocks. The “middle finger” gesture, however, involves neither nudity nor spoken language and is not at issue in those cases. So, does a middle finger gesture on broadcast TV violate the FCC’s rules?

While many use the terms “indecency” and “obscenity” interchangeably, in fact the FCC enforces laws that target discrete categories of obscene or indecent programming on broadcast (not cable or satellite) TV: 

  • The FCC defines indecent material as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”  Such material may only be broadcast during safe harbor hours (i.e., 10 p.m. to 6 a.m.).
  • The Supreme Court defines obscene material (which cannot be broadcast at any time) as material that meets a three-pronged test: 
    • An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
    • The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and 
    • The material, taken as a whole, must lack serious literary, artistic, political or scientific value.

With respect to specific FCC guidance, the FCC does not appear to have issued any order finding the “middle finger” gesture to be obscene or indecent. A few years ago, the FCC briefly mentioned the gesture (fn. 94) in assessing a fine against Fox for “fleeting expletives” used by entertainer Nicole Richie during a televised awards show. The FCC argued that Fox was on notice that Ms. Richie had demonstrated a “penchant for vulgarity” by using the middle finger gesture during a previous broadcast. Separately, press reports indicate that the FCC received complaints about a 2009 awards show broadcast on NBC where director film Darren Aronofsky made the gesture on camera, but no FCC decision has been issued in connection with this broadcast. Alternatively, some have questioned whether FCC policies regarding the use of certain “visual images” in conjunction with song lyrics would encompass the middle finger gesture.

In my view, this sort of "Flying Fickle Finger of Fate" should not be deemed an FCC violation. There are definitional issues, First Amendment concerns and questions of whether the FCC has given fair, adequate notice.  Given the uncertainty about the FCC’s authority to enforce broadcast indecency policies due to the pending U.S. Supreme Court case, even if complaints are filed with the FCC, it is unlikely that the FCC would reach a decision on the complaints before the Court issues its decision.  In the meantime, it remains to be seen whether this halftime performance will sway public opinion on the issue or will influence the Court’s decision.

U.S. Supreme Court Considers the FCC's Authority to Regulate Fleeting Expletives, Nudity on Broadcast TV

Posted by Jonathan E. Allen on January 13, 2012

If there was one surprise in this week’s oral argument at the U.S. Supreme Court about FCC regulation of broadcast indecency, it was the nudity in the courtroom. 

The Court is considering the Federal Communications Commission’s authority to regulate nudity and “fleeting expletives” on the broadcast airwaves in Federal Communications Commission, et al. v. Fox Television Stations, Inc. et al. The case involves the FCC’s appeal of two court decisions – one involving the Fox network and one involving the ABC network – that struck down the FCC’s “broadcast indecency” policies.  At issue is whether these FCC decisions violated the First and/or Fifth Amendments to the U.S. Constitution and whether the Court will reshape the FCC’s authority to enforce indecency standards for the broadcast airwaves.

Nudity, “Fleeting Expletives” and the Constitution

The consolidated appeal involves network broadcasts containing instances of the “F-Word” (used by Cher during a 2002 awards show on the Fox network and by Nicole Richie during a 2003 awards show on the same network), the “S-Word” (also used by Richie in the same show) and a bare backside (which appeared for fewer than seven seconds in a 2003 episode of ABC’s “NYPD Blue”).  The broadcasts aired outside the FCC’s “safe harbor” hours of 10 p.m. to 6 a.m., and in each instance, the FCC found the broadcasts to be actionably indecent, which the FCC defines as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” The U.S. Court of Appeals for the 2nd Circuit eventually overturned these two determinations in separate appeals. 

  • Fox Television Stations, Inc.  In the case of the two live awards show broadcasts, the FCC found the broadcasts to be indecent based on changes that the FCC made in January 2003 to its “fleeting expletives” policy. The FCC declined to issue a sanction, however, because the broadcasts occurred prior to this policy change. In 2007, the U.S. Court of Appeals for the 2nd Circuit found that the FCC’s policy was arbitrary and capricious under the Administrative Procedure Act (“APA”).  In 2009, the U.S. Supreme Court reversed and remanded the 2nd Circuit’s decision on APA grounds without reaching the constitutional questions. On remand, the 2nd Circuit in July 2010 struck the FCC’s orders on constitutional grounds, finding the FCC’s policy to be impermissibly and unconstitutionally vague.   
  • ABC, Inc. In the case of the NYPD Blue episode, the FCC imposed an indecency forfeiture of $27,500 against several ABC network-owned stations and affiliates, finding that the view of a woman’s unclothed buttocks was “sufficiently graphic and explicit to support an indecency finding,” that the shots were “repeated” and that the scene was “pandering, titillating, and shocking.” In the ABC case, the 2nd Circuit, in reliance on its 2010 decision in the Fox case, tossed the FCC’s fine against the ABC stations (both network and affiliates).        

The Supreme Court has consolidated the FCC’s appeals of these two decisions by the 2nd Circuit.  The case brings new attention to the Court’s landmark broadcast indecency decision in 1978’s FCC v. Pacifica Foundation. There, the Court found that the FCC did not violate the First Amendment when it applied its definition of indecency to a broadcast of George Carlin’s famous “filthy words” monologue.  In upholding the FCC’s authority, the Court noted 1) the “uniquely pervasive presence” of the broadcast media, 2) that airwaves are available in the privacy of the home, 3) that broadcasting is “uniquely accessible” to children and 4) in the government’s interest “in the ‘well being of its youth’ and in supporting ‘parents’ claim to authority in their own household.”  Here, the Court has been asked to overrule Pacifica, and as expected, the oral argument dealt extensively with this precedent. 

Takeaways from the Oral Argument

  • While it is problematic to read too much into questions that the Justices ask at oral argument, the Justices clearly struggled with the implications of the FCC’s broadcast indecency enforcement.  Justice Sotomayor, who formerly served as a Judge for the 2nd Circuit, is not participating in the case.  As a result, any 4-4 decision would allow the 2nd Circuit’s decision to stand.  In addition, this consolidated appeal involves two related cases involving different parties as well as different aspects of the FCC’s policy (i.e., nudity vs. “fleeting expletives”); accordingly, the Court may decide to treat these categories differently with separate rulings.
  • Much of the oral argument focused on differences in content between broadcast channels and cable channels and on the pervasiveness of broadcasting compared to other forms of media. Broadcasters have asserted that Pacifica should be overturned because of the changes in the media landscape since 1978, among other reasons.  For example, Carter Phillips, counsel for Fox, asked “how is it permissible to allow the FCC to regulate the broadcast networks on standards that are fundamentally different than cable, the internet and every other medium that exists?” Justice Alito voiced his opinion that “broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes.” 
  • While the facts before the Court involve television broadcasts, the Solicitor General, representing the FCC, argued that overturning Pacifica would “sweep away indecency restriction with respect to radio as well as television” and that “a lot of the most vile and lewd material really is in radio.”  Justice Breyer asked whether the “First Amendment forbids the application of a good guideline to this case” and referred to the potential reversal of Pacifica as “earthshaking.”
  • While some Justices appeared to have little appetite to overturn Pacifica, several Justices questioned the FCC’s handling of specific situations. For example, Justice Kagan said “the way that this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg.” Her comment refers to the FCC’s findings in other cases that the films “Saving Private Ryan” and “Schindler’s List,” both directed by Steven Spielberg, were not indecent. 
  • Chief Justice Roberts said that “[a]ll we are asking for, what the government is asking for, is a few channels where you can say I’m not going to – they are not going to hear the S word, the F word. They are not going to see nudity.” Justices Kennedy and Scalia considered whether to hold broadcast media to a different standard in an effort to preserve a “safe haven.”  Justices Kennedy and Scalia cited the “symbolic value” of allowing the government to use public airwaves to “insist upon a certain modicum of decency.”  It is noteworthy that Scalia wrote the opinion in the recent Brown v. Entertainment Merchants Association case, where the Court found that video games qualify for First Amendment protection. There, Justice Scalia wrote that “Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.” 
  • There was extensive discussion about the role of advertisers in encouraging broadcasters and cable programmers to limit the use of material that falls within the FCC’s indecency definition. Counsel also discussed whether and how broadcast standards and practices would be affected if Pacifica was overruled or limited.  
  • Counsel for Fox disputed the suggestion by Justice Kagan that the current system “seems to work.” He argued that the “whole system has come to a screeching halt because of the difficulty in trying to resolve these issues.” He referred to the hold up of many TV license renewals at the FCC, an issue we’ve blogged about previously.  
  • The FCC’s actions and its indecency policy were challenged as unconstitutionally vague under the Fifth Amendment on the grounds of a lack of fair notice of what was prohibited and of arbitrary and discriminatory enforcement. Some Justices questioned the FCC’s approach.  Justice Ginsburg referenced the “appearance of arbitrariness about how the FCC is defining indecency in concrete situations.” The Solicitor General conceded that “there is not perfect clarity in this rule” but that “the alternative [for example, bright-line proscriptions against certain words or nudity] … would be worse.”  He also argued that “there isn’t really a vagueness issue left with respect to the fleeting expletives in the Fox case, because the Court said [in 2009] that there is no problem of arbitrary punishment because there was no forfeiture or other sanction.” By contrast, the FCC fined ABC for the “NYPD Blue” broadcast, and the Solicitor General agreed that the vagueness issue remained in play for that broadcast. 
  • As for the nudity in the courtroom?  The Justices asked about permissible displays of nudity on broadcast television – for example, whether broadcasters could air the musical “Hair,” the opera “Metropolis” or other programs without running afoul of the indecency regulations. Seth Waxman, counsel to ABC, pointed out that the FCC has pending complaints “about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.” Time will tell whether these courtroom displays will sway any of the Justices. 

The Court is expected to rule on this case during its current term, which ends in June.

NEW FCC RULES BAN LOUD COMMERCIALS; PROMOTE "CALM"

Posted by David G. O’Neil on December 22, 2011

The FCC has adopted new rules governing how loud commercials may be in digital programming, in response to the Commercial Advertisement Loudness Mitigation (“CALM”) Act.  As a result, beginning December 13, 2012, all digital TV broadcasters, digital cable operators and other digital multichannel video programming distributers (“MVPDs”) must make sure that their digital TV commercials are transmitting at volumes no louder than the accompanying program, in accordance with industry standards.  For the first time the television industry must monitor and if necessary adjust the loudness of television commercials. 

Who Must Comply?  The new rules apply to digital TV commercials broadcast on digital TV or cable stations as well as to digital MVPDs.  The new rules do not apply to analog broadcasts or to non-digital MVPD service.  The new rules will not apply to noncommercial broadcast stations unless the stations transmit commercial advertisements as part of an ancillary or supplementary service.  Under limited circumstances the FCC may grant waivers based upon financial hardship.

Who is Responsible for Compliance?  Complying with the new rules will vary based on whether the commercial is locally inserted or embedded.  “Locally inserted” commercials are added by the station or MVPD prior to transmission to the public, while “embedded” commercials are placed in the programming by a third party and then transmitted by the station or MVPD.  Most stations or MVPDs will have a higher standard of care for locally inserted commercials than for embedded commercials.

What is the Standard of Compliance?  The FCC has created safe harbors for embedded and for locally inserted commercials.  For embedded commercials, stations and MVPDs must have the proper equipment to pass through compliant programming from third parties.  Compliant programming means programming that uses industry accepted standards for ensuring that commercials will be transmitted at appropriate levels consistent with the Commission’s rules and the CALM Act.  The equipment must be properly installed, maintained and utilized.  The stations and MVPDs must obtain certifications of compliance from the programmers, must conduct annual spot checks of non-certified programming and must conduct spot checks of specific channels in the event the FCC so directs.    The spot checks will vary depending upon the size of the television station or MVPD, with rigorous spot checking for the largest entities and less to no spot checking for the smaller stations and MVPDS.  The FCC plans to phase out the spot checks after completion of two annual spot checks, as more programmers certify compliance.  A station or MVPD is eligible for the safe harbor for embedded commercials in a particular program if the programmer provides a certification that the programming is compliant and the station or MVPD has no reason to believe the certification is false.

For locally inserted commercials, in addition to proper installation and maintenance of equipment, the station or MVPD must maintain records showing the use of the equipment in the regular course of business and that the equipment is maintained and tested to ensure continued proper operation.  The station or MVPD must be able to certify that it has no knowledge that the equipment is in violation of industry standards and if a violation has occurred, that the equipment has been repaired in a prompt manner.

Television stations, cable operators and MVPDs will need some time to adapt to these new requirements.  Although the requirements do not go into effect for a year, common sense dictates taking steps now to get ready for the new requirements.  This includes researching and if necessary making plans to purchase any equipment, establishing procedures for complying with the new rules and above all, keeping accurate and complete records.

Presumably, it will take months (perhaps years) for some programmers to bring all of their programming (and inserted commercials) into compliance.  Therefore, careful scrutiny of programming should be undertaken, certainly during the two-year period when the FCC will require spot checking.

FCC Adopts USF Reforms, Seeks to Boost Broadband Deployment

Posted by Stephen E. Coran on October 27, 2011

Earlier today, the FCC voted to adopt rules to reform the Universal Service Fund and Intercarrier Compensation systems and to create a "Connect America Fund" designed to extend broadband infrastructure to unserved areas.  In the video below, I discuss today's vote and what it means for broadband deployment.

Coming Soon: FCC to Require TV Broadcasters to Post Contents of Public File Online

Posted by David G. O’Neil on October 27, 2011

The Federal Communications Commission (“FCC”) took a major step today toward requiring television broadcasters to place the contents of their local public inspection file online.  With today’s action, the FCC is fast-tracking a 2007 Report and Order that required television broadcasters to put their local public inspection file online.  The 2007 decision did not take effect thanks to court challenges to the new rules and to inaction by the Office of Management and Budget with respect to adopting a standardized television disclosure form (FCC Form 355) that would have replaced how broadcasters prepare their Quarterly Issues/Programs Lists. 

The 2007 Report and Order required television broadcasters for the first time to post their public inspection file (with the exception of their political file) online if the station had a web site.  In addition, broadcasters would have been required to complete and post Form 355 on their websites on a quarterly basis.  The FCC claimed these changes would not change the materials that broadcasters would have to maintain in the local public inspection file but by posting the material online would make the contents more readily available to the public.  Understandably, broadcasters appealed the FCC decision, concerned about the onerous burdens of the new rules.  Almost four years later, none of the new public file requirements have gone into effect for the reasons discussed above. 

Recognizing the impasse that it faced, today the FCC vacated the 2007 Report and Order -- in essence the agency rescinded its proposals.  Instead, the FCC commenced a new rule making proceeding to achieve the same goal of broadcasters posting the public file online.  Under the new proposal: 

●          The FCC would create an online portal that broadcasters would use to post their local public file.  Broadcasters would not have to place the information on their website.

●          Broadcasters would not have to post information already on file with the FCC; the agency would import that information to the online public file.

●          Broadcasters would not post online some information, such as letters and e-mails from the public.

●          Broadcasters could be required to post other information, such as sponsorship identification information (i.e., political) and shared services agreements.

●          A revised enhanced disclosure form would be adopted.

●          Data tools would be created for the public to access and evaluate this information.

The FCC views today’s proposal as consistent with a government-wide mandate to increase transparency and with the Commission’s broader efforts to modernize data while transitioning from a paper to electronic world.  What is left unsaid is the enormous cost that these proposals will impose on television broadcasters.  It does not necessarily follow that the low barrier to accessing this information will serve the public interest.  The placement of this material online, while commendable on one hand, could open the floodgate for the filing of spurious petitions against broadcasters.  Broadcasters could experience a significant increase in expenses in defending against such frivolous complaints.  One need look no further than the deluge of indecency complaints made possible by the FCC with on-line filing to see how ineffective and costly this process (no matter how commendable) could be.

These concerns do not even include the considerable expense broadcasters will incur transferring the contents of the local public file online, whether to a station website or the FCC.  Nor does this take into consideration the costs broadcasters will incur morphing their Quarterly Issues/Programs Lists into the new enhanced disclosures form, in the event the FCC decides to implement a revised form.

Radio broadcasters should take heed.  If the Commission successfully adopts and implements these new requirements, rest assured that one day soon the FCC will extend these requirements to radio broadcasters as well.

Lebron Fined $15,000 by FCC

Posted by Robert Rini on September 21, 2011

Today’s announcement from the FCC’s Enforcement Bureau – a proposed forfeiture of $15,000 against Lebron – caught our attention. We are all aware that certain NBA players have a lot of time on their hands during the National Basketball Association lockout. Nevertheless, Lebron was alleged to have operated an unlicensed radio transmitter in Guayama, Puerto Rico in violation of Section 301 of the Communications Act. As it turns out, upon closer inspection, LeBron James has not taken his talents to Puerto Rico and likely will not be paying the $15,000 fine. Expect confused Cleveland fans to rejoice at the news. 

Rini Coran, PC Co-Sponsors WCAI DC Social Networking Event

Posted by Rini Coran, PC on September 21, 2011

Rini Coran, PC, the Wireless Communications Association International, Select Spectrum, AT&T, Altius Communications, Tessco and Telecom Hub are co-sponsoring a networking event today in Northern Virginia geared toward professionals in the wireless industry.  Join Robert Rini (on Twitter, @rrini), Stephen Coran (@stevecoran) and Jonathan Allen (@JonathanEAllen) for this event from 6 p.m. to 8 p.m.  More information is available here.

Of Databases and Legislation: TV White Spaces on Trial

Posted by Stephen E. Coran on September 16, 2011

This week, the Federal Communications Commission took another important step toward bringing fixed wireless broadband service to rural Americans by announcing the first TV white space database trial.  For a 45-day period beginning September 19, Spectrum Bridge, Inc. (a Rini Coran, PC client) will make publicly available its database, which identifies available TV channels for unlicensed broadband operations.  Separately, FCC Chairman Julius Genachowski issued a supporting statement trumpeting the benefits of white spaces.  This is welcome news in the face of an U.S. white space ecosystem that is threatened by pending Congressional legislation.

In the trial, participants will have access to elements of the database that are designed to protect TV stations, cable headends and broadcast auxiliary stations and registered wireless microphones.  Once the trial concludes – and the FCC can extend the trial beyond the November 2 end date – Spectrum Bridge is required to give the FCC a report that notes any problems and changes to the channel availability calculator. 

Chairman Genachowski took the rather unusual step of issuing a News Release announcing the Spectrum Bridge trial, stating that “[u]nleashing white spaces spectrum will enable a new wave of wireless innovation.  It has the potential to exceed billions of dollars in economic benefit from wi-fi, the last significant release of unlicensed spectrum, and drive private investment and job creation.”  The Wireless Innovation Alliance (WIA) and Public Knowledge were quick to hail the FCC’s initiation of the first database trial.

Meanwhile, at the Super WiFi Summit in Austin this week, attendees got a full slate of information about white space technology, databases and legislation.  On the latter point, Michael Calabrese of New America Foundation reiterated many of the points made in his recent House testimony and discussed the potential for spectrum reform legislation to sharply reduce, if not eliminate, the amount of white space available in many markets.  He detailed WIA‘s efforts to ensure that unlicensed white space is preserved and that Congress does not mandate auctions for future unlicensed bands.  I provided insight into the perspective of wireless Internet service providers (WISPs) that could be harmed by the proposed legislation and noted the “boots on the ground” efforts of the Wireless Internet Service Providers Association (WISPA) to better educate Congress on the consumer benefits of unlicensed spectrum.  To that end, and as just one example, WISPA member Brian Webster created a map using data from the NTIA’s mapping program showing the census blocks in Illinois that are uniquely served by WISPs in both licensed and unlicensed spectrum (not including coverage offered by the cellular technologies or satellite internet).  From the map below, one can see the obvious benefits that WISPs, and only WISPs, provide to consumers.  As Congress pushes forward to consider legislation in the next few weeks, these will be important messages to convey.

(click map below to enlarge)


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