Don't Change that Channel: FCC Takes Steps to Transition TV Stations ... Again

Effective immediately, the Federal Communications Commission will no longer accept rulemaking petitions for TV stations to change their licensed channels. This is unfortunate news for stations who are still studying ways to improve free local over-the-air DTV service. 

Today’s announcement comes after the FCC staff’s completion of nearly 100 channel changes since lifting its filing freeze on May 30, 2008. FCC staff apparently believes that licensees have had sufficient time to evaluate engineering options and presumes there is no pent-up demand for channel changes. Such speculation might have been avoided if instead of an immediate freeze, a short filing window was established to permit filings for channel changes before the freeze became effective. 

FCC staff indicates that the freeze is necessary to facilitate the re-packing and reallocation of portions of the TV Band for broadband services, as recommended in the National Broadband Plan. While the FCC lacks authority to conduct incentive auctions, it may re-pack the TV band to create more spectrum for wireless broadband. FCC Chairman Julius Genachowski signaled his interest in repacking the TV band in his April 12, 2011 remarks at the NAB Show. FCC staff has been doing a road show around the country promoting the benefits of incentive auctions, so this action comes as no great surprise. 

What is becoming clear is that TV stations should begin contemplating a second DTV transition and the possibility of changing channels yet again. In the meantime, FCC staff has taken a step toward minimizing the number of moving parts in this transition by making sure that TV stations stay put, for now. 

For more information, don’t change that channel …

Pre-Filing Announcements for NC and SC Radio Stations begin June 1, 2011

As part of the process of filing for FCC renewal of their broadcast licenses, commercial and noncommercial full power radio stations licensed to communities in North Carolina and South Carolina must begin their pre-filing announcements on June 1, 2011.  Radio stations must air these announcements at least once a day on the 1st and 16th days of June and July.  At least two of the announcements must be broadcast between 7:00 a.m. to 9:00 a.m. and/or between 4:00 p.m. to 6:00 p.m.  If the broadcast station does not operate during these hours, two of the announcements must be broadcast during the first two hours of operation. 

FM translator stations do not need to make any pre-filing announcements. 

For more information about the broadcast license renewal process, see my blog pieces here and here.

Post-Filing Announcements for DC, MD, VA and WV Radio Stations begin June 1, 2011

As part of the process of filing for FCC renewal of their broadcast licenses, commercial and noncommercial full power radio and FM translator stations licensed to communities in the District of Columbia, Maryland, Virginia and West Virginia must begin their post-filing announcements on June 1, 2011.  Radio stations must air these announcements at least once a day on the 1st and 16th days of June, July and August as follows: 

●          At least three of the announcements between 7:00 a.m. to 9:00 a.m. and/or between 4:00 p.m. to 6:00 p.m.

●          One announcement between 9:00 a.m. to noon

●          One announcement between noon to 4:00 p.m.

●          One announcement between 7:00 p.m. to midnight. 

If the broadcast station does not operate during these hours, two of the announcements must be broadcast during the first two hours of operation.

FM translator stations must publish the text of the post-filing announcement in a daily, weekly or bi-weekly newspaper of general circulation in the community of license at least once immediately following filing of the license renewal application.

For more information about the broadcast license renewal process, see my blog pieces here and here.

FCC Storms Ahead, Seeks to Expand Outage Reporting Rules to VoIP and Broadband Providers

            As a follow-on to an earlier comment cycle, the FCC released a Notice of Proposed Rulemaking (“NPRM”) proposing to extend its Part 4 outage reporting requirements to interconnected VoIP providers and broadband Internet providers.  There was little support in last year’s record to further burden network operators with new reporting obligations and the FCC’s authority to require VoIP and broadband providers has been questioned by one Commissioner. Nevertheless, the FCC cites the need to ensure public safety and 9-1-1 communications as the basis for extending its rules.  Comments likely will be due later this summer – 60 days from Federal Register publication of the NPRM – with Reply Comments due 60 days thereafter.  It is perhaps no accident that the FCC initiated this proceeding during an active tornado season and at the outset of hurricane season

            In 1992, the FCC adopted rules requiring circuit-switched wireline providers to file reports of outages.  In 2004, this requirement was extended to providers of paging communications over wireless, cable and satellite communications.  And since 2005, the FCC has required interconnected VoIP providers to provide 9-1-1 emergency calling capabilities to their customers.  The FCC now seeks to make the outage rules applicable to interconnected VoIP providers and broadband ISPs, who would be required to make “presumptively confidential” reports to the FCC as a means to “help providers recover or prevent future outages, and ensure to the extent possible that broadband networks are prepared for natural and man-made disasters.”  The FCC states that its existing reporting obligations provided numerous benefits in the aftermath of Hurricane Katrina in 2005.  The FCC also noted that almost 30 percent of voice calls are made using VoIP service.

            The FCC proposed the actual language of its proposed rules – something that was almost never done in previous administrations but is becoming more common under Chairman Julius Genachowski.  The FCC has requested comment on the following proposal, which adopts certain “triggers” for the reporting requirement: 

Interconnected VoIP Providers

Broadband Internet Access Service Providers

Would be required to electronically notify the FCC within 120 minutes of discovering that they have experienced on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration: 

(1) Of a Call Agent, Session Border Controller, Signaling Gateway, Call Session Control Function, or Home Subscriber Server: 

(2) That potentially affects at least 900,000 user minutes of interconnected VoIP service and results in (i) complete loss of service; or (ii) an average packet loss of 1 percent or greater; or (iii) average round-trip latency of 100 ms or greater; or (iv) average jitter of 4 ms or greater, with all packet loss, latency, and jitter measurements taken in each of at least 6 consecutive 5 minute intervals from source to destination host; 

(3) That potentially affects any special offices and facilities; or 

(4) That potentially affects a 9-1-1 special facility, in which case they also shall notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 9-1-1 facility as the provider’s contact person for communications outages at that facility, and the provider shall convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on efforts to communicate with that facility.

Would be required to electronically notify the FCC within 120 minutes of discovering that they have experienced, on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration: 

(1) Of a ISP-operated Domain Name System server, Dynamic Host Control Protocol server, or Home Subscriber Server; 

(2) That potentially affects at least 900,000 user minutes and results in (i) complete loss of service; or (ii) an average packet loss of 1 percent or greater, or (iii) average round-trip latency of 100 ms or greater, or (iv) average jitter of 4 ms or greater, with all packet loss, latency, and jitter measurements taken in each of at least 6 consecutive 5 minute intervals from source to destination host; 

(3) That potentially affects any special offices and facilities; or 

(4) That potentially affects a 9-1-1 special facility, in which case they also shall notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 9-1-1 facility as the provider’s contact person for communications outages at that facility, and the provider shall convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on efforts to communicate with that facility. 

Similar rules would apply to broadband backbone ISPs.

 

            For broadband providers to non-mobile users, the number of IP addresses affected would be used to calculate “user minutes.”  For broadband access providers to mobile users, the number of potentially affected users should be determined by multiplying the maximum number of simultaneous users by a concentration ratio of 8.

            Among other things, the FCC asks throughout the NPRM for comment on the burdens and costs associated with the extended reporting requirements.  The FCC specifically asks whether the burdens would be greater on smaller VoIP providers and broadband ISPs, and asks for alternatives (though according to the Initial Regulatory Flexibility Analysis, the FCC considered but did not propose waivers for smaller entities).  

            Importantly, the FCC proposes to treat data collected through the reporting process as “presumptively confidential,” just as it treats existing outage information.  The FCC also asks for comment on whether it should be allowed to share information with other Federal agencies on a presumptively confidential basis. 

            Curiously, the FCC waited until the end of the NPRM to request comment on whether it has the legal authority to impose the new requirements.  The NPRM concludes that the FCC has “ancillary authority” to adopt the rules because it has general jurisdiction covering the regulated subject and the regulations are “reasonably ancillary” to the FCC’s performance of its statutory responsibilities.  For VoIP providers, the FCC finds that collecting outage information is “reasonably ancillary” to ensuring that VoIP providers are able to satisfy their 9-1-1 obligations and to enable the FCC to improve the reliability of 9-1-1 services.  For broadband ISPs, the FCC relies on the same authority, but to get around the fact that broadband providers do not have 9-1-1 obligations, the FCC states that they are subject to outage reporting because interconnected VoIP services ride on broadband networks.  As noted above, Commissioner Robert McDowell – who has a reputation for doubting the FCC’s “ancillary authority” – has questioned whether the FCC can impose these requirements. 

            The record from last year’s preview was predictable, with public safety advocates supporting extension of outage reporting requirements and private industry telling the FCC that the rules should not be extended.  There’s little doubt that the record this time around will be similar.  But at least we have specific language of proposed rules to consider.

FCC Denies Requests for Waiver of Form 499-A Filing Deadlines

Sometimes, the footnotes contain buried gold.  Here’s a case in point. 

Earlier today, the Federal Communications Commission’s Wireline Competition Bureau (Telecommunications Access Policy Division) denied requests from two petitioners who sought waiver of the filing deadline for the annual FCC Form 499-A (the Telecommunications Reporting Worksheet) and for associated late fees.  I’ve blogged before about the Form 499-A requirement, which imposes, with limited exceptions, an annual April 1 filing deadline for providers of telecommunications services and interconnected VoIP services in the United States. 

The Division stated that a waiver “is appropriate only if both (i) special circumstances warrant a deviation from the general rule and (ii) such deviation will serve the public interest.”  One petitioner claimed that it “did not realize it was required to file the form until after the deadline,” but the Division stated that this claim “is not a unique circumstance to warrant a waiver of the deadline.” In footnote 16, the Division cited a 2008 decision by the U.S. Court of Appeals for the D.C. Circuit. In that case, the Court rejected the FCC’s grant of a waiver to a party who had timely filed an FCC complaint but later had to re-file after the deadline because the initial filing fee submitted was $5 short. The Court noted that 

procrastination plus the universal tendency for things to go wrong (Murphy’s Law) – at the worst possible moment (Finagle’s Corollary) – is not a ‘special circumstance,’ as any junior high teacher can attest. 

This is a classic way to remind parties to file early and to plan for the worst in trying to meet FCC filing deadlines. Murphy and/or Finagle may disrupt the best-laid plans at any time, and waiver proponents have a high burden under FCC rules.  

As for the other petition, the Division quickly dispensed with the claim that the petitioner’s form was “lost in the mail,” finding that without further evidence, a waiver was unwarranted.

FCC Concludes Auction of 108 Vacant FM Allotments; Total Bids Reach $8,537,655

The FCC completed Auction 91 yesterday, netting more than $8.5 million for the U.S. Treasury while awarding 108 new FM construction permits to 66 winning bidders.  The results represent a significant increase in total bids over the last auction of FM Allotments (Auction 79), where the FCC collected more than $5 million while awarding 85 construction permits to 53 winning bidders. 

A comparison of the results is instructive: 

Auction No.

Date Concluded

# of FM Allotments Awarded

Total Bids (Net)

Total Number of Winning Bidders

Average per FM Allotment

91

5/11/2011

108

$8,537,655

66

$129,358

79

9/15/2009

85

$5,253,025

53

$99,114

 

Clearly Auction 91 generated more interest and more dollars than Auction 79.  There are several possible reasons. First, Auction 91 proposed more construction permits (144) for auction than Auction 79 (112).  Auction 91 had 117 qualified bidders while Auction 79 had only 77.  Several markets in Auction 91 were highly contested, with vigorous bidding among existing broadcasters and new entrants in certain markets.  As a result, five of the allotments went for more than a half a million dollars while an additional 14 allotments sold for $100,000 or more.  Auction 91 could reflect the frustrations of new and existing broadcasters wishing to purchase existing radio broadcast stations.  It is no secret the reduction in valuation of broadcast properties combined with a lack of funding for new acquisitions has resulted in a significant drop in broadcast transactions over the past several years.  Consequently, existing and new broadcasters interested in purchasing FM stations could have been motivated to participate in Auction 91.  And of course, never underestimate the interest of spectrum speculators who see an opportunity to upgrade a vacant allotment either through increasing power or changing the community of license. 

Unanswered is what the FCC will do with the 36 allotments that received no bids.  About half of these allotments have been offered in two or more FCC auctions and received no bids from the public. The issue is when the FCC will decide to delete these allotments because of lack of interest from the public.

Even though bidding in Auction 91 is closed, the FCC’s anti-collusion rules prohibit any applicants in Auction 91 from talking with each other until the down payment is made by the winning bidders.  The down payment will be due 10 days after the FCC releases a public notice announcing the winning bidders.  The FCC should release this public notice within the next several days.

FCC to Report to Congress on Economic Impact of LPFM

The FCC is seeking comments on the economic impact that low power FM stations (“LPFM”) may have on full-service commercial stations.  These comments will form the basis of a report that the FCC must submit to the Congress as required by the Local Community Radio Act of 2010 (“LCRA”)The LCRA relaxed technical restrictions on LPFM stations in an effort to help grow LPFM service.  For example, the LCRA requires the FCC to eliminate the third-adjacent channel protection that full-service FM stations now enjoy from LPFM stations, FM translator stations and FM booster stations.  The LCRA also allows the FCC to grant LPFM stations a waiver of second-adjacent channel protections to full-service FM stations.  These changes when taken together could allow a significant increase in new LPFM stations, possibly to the detriment of full-service FM stations; hence the necessity and importance of the FCC report to the Congress. 

The FCC wants comments from the public on the current and potential economic impact that the addition of new LPFM stations could have on full-service FM stations.  The FCC left unanswered whether the agency will include the potential economic effect in its report.  The FCC also wants comments on the appropriate measurement for the economic impact; the effect of LPFM stations on audience ratings or advertising revenue. 

This approach has three problems.  The first is the difficulty for the FCC to develop any meaningful metrics that measure the effect of LPFM stations on full service stations with regard to advertising revenue.  LPFM stations compete indirectly with full-service FM stations.  LPFM stations must operate as noncommercial stations, financed through underwriting and listener support.  Full-service FM stations sell advertising time based on ratings.  It will be challenging for the FCC to compare the noncommercial economics of LPFM to the commercial economics of full-service stations. 

Second, Congress seeks information on the effect LPFM stations will have on full service FM stations only.  The LCRA, however, would make it possible for FM translator stations and FM booster stations to relocate closer to urban markets or for the FCC to license new stations.  FM translator and booster stations extend the reach of full-service stations, presumably with some economic impact on other full service stations.  In addition, FM translator stations can now rebroadcast AM stations, extending the reach of those stations. 

Third, the FCC will not consider the potential economic impact on full-service stations due to interference from LPFM stations.  LPFM stations are prohibited from causing interference to full-service FM stations, and there are also practical limitations to such LPFM station interference. In the event interference does occur, it is more likely that full-service stations will cause interference to LPFM stations than the reverse.  Such prohibitions and practical considerations do not assure that such interference may not occur; accordingly, for the report to the Congress to be meaningful, it must account for the economic impact associated with such interference, if any. 

Comments in this proceeding (MB Docket No. 11-83) are due on June 24, 2011, and replies are due on July 25, 2011.