The following is a list of some important upcoming FCC regulatory deadlines.  Please feel free to call us if you are interested in filing Comments in Rule Making proceedings or have questions as to whether these deadlines, or others, apply to your company.

General FCC Deadlines

AM radio broadcast stations that operate with directional antennas are required to take remedial action when their directional arrays get out of adjustment.  The FCC has now clarified its rules to establish more precisely when corrective action must be taken within three minutes and when a 24-hour grace period is allowed to evaluate a malfunction.

 

If you have any questions about the obligations of directional AM stations when they experience out-of-tolerance operation, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matt McCormick at mccormick@fhhlaw.com.

Last month, the FCC entered into consent decrees with the several of the nation’s largest radio operators concerning payola law violations.  Payola -- the receipt of consideration in return for airplay -- has been illegal for decades, but it has recently come back into the political spotlight.  Further FCC enforcement activities are likely.  Therefore, prudence dictates that all broadcast licensees review the compliance activities that the large radio operators agreed to implement and adapt them to their own individual station circumstances.

 

If you have any questions about the payola or sponsorship identification laws or regulations, please contact Peter Tannenwald at tannenwald@fhhlaw.com) or Matt McCormick at mccormick@fhhlaw.com.  If you like, we would be happy to provide you with affidavits that you may require your employees to sign, putting them on notice of their obligation, and committing them, to disclose any approach by a record label, artists, promoter, or other party seeking air exposure of music or any other product or service.

Telephone dialing code 211 is reserved for access to community information services, and 511 is reserved for traveler information services.  The FCC made these assignments 7 years ago, noting that the eight available “N11” codes were among the scarcest numbering resources under its control.  The FCC now seeks to develop a record as to how widely the 211 and 511 codes have been deployed in practice and whether these codes are being used in the intended manner.   If the codes have not been widely deployed, the FCC asks how it can facilitate more widespread use.

The FCC has deferred the deadline beyond which it will no longer accept certification applications for Private Land Mobile Radio Service (PLMR) transmitters unless they are capable of operating on 6.25 kHz-wide channels.  It has also decided not to establish a fixed date by which all users must migrate to 6.25 kHz operation.

 

If you have any questions about the PLMR narrowbanding process,  please contact Peter Tannenwald at tannenwald@fhhlaw.com or Michelle McClure at mcclure@fhhlaw.com.

 

The FCC has proposed to allow the use of smaller antennas by Fixed Service microwave licensees in the 10.7-11.7 GHz band.  The Rules presently require a minimum diameter of 1.22 meters for antennas in this band.  The proposal would allow antennas half that size -- 0.61 meters in diameter.  The smaller size is already permitted in the adjacent 10.5-10.68 GHz band. 

 

Comments on the proposals are due 30 days after publication of the proposals in the Federal Register, with Reply Comments due 15 days later.  As of the date of this document, the proposals have not yet been published in the Federal Register. 

 

If you have any questions about the proposals, or if you would like to file Comments and we may be of assistance, please contact Peter Tannenwald at tannenwald@fhhlaw.com.

 

_{The FCC has proposed to authorize a single nationwide licensee to use 12 MHz of the new Upper 700 MHz public safety band to develop a system that would lease primary capacity to public safety entities and surplus secondary capacity to commercial entities, in an attempt to promote greater interoperability of public safety radio systems, to facilitate the use of broadband technologies, and to stimulate prompt deployment.}

_{The FCC invites comments on some issues where it has not reached as strong a tentative conclusion as it has regarding a nationwide licensee. It asks whether any kind of interoperability should be required between the new system and legacy systems, using software-defined radios or some other approach. It also asks what build-out requirements should be imposed on a national system and how much discretion should be afforded to local public safety entities to dictate what kind of facilities or services they require.}

_{Comments are invited whether cognitive radio technology will make it possible to share public safety spectrum with commercial entities without fear of inability to recapture air time instantly in case of an emergency.  Comments will be due 45 days after the proposals are published in the Federal Register, with Reply Comments due 15 days later. These are very short comment periods for a proposal as dramatic as this one, and the short period suggests that the FCC is strongly inclined to adopt the proposals. The comment period has not yet started to run as of the date of this Memorandum.}

_{If you have any questions about the FCC’s proposals, or if you would like to file Comments and we may be of assistance,} please contact Peter Tannenwald at tannenwald@fhhlaw.com.

 

Under new rules adopted in a Report and Order released by the FCC on November 29, 2006, AM standard band stations and both commercial and noncommercial educational FM stations soon will be able to change their community of license through a minor modification application.

The new community of license minor modification applications will be processed on first come-first served basis, thus eliminating competing applications and associated auctions and possible litigation except when conflicting applications are filed on the same day. The new rules will go into effect, and minor modification city of license change applications may be filed, 30 days after the Report and Order is published in the Federal Register. On the same day, the current freeze on the filing of FM allotment rulemaking petitions will be lifted for remaining situations where rule making will still be required. 

If you are interested in further details regarding the Commission’s new procedures or in filing an application to change the community of license of one or more of your stations, please contact Peter Tannenwald at tannenwald@fhhlaw.com).

The FCC has ruled that the provision of Internet access via Broadband Over Powerline will be classified as an information service, rather than a telecommunications service, thus freeing BPL Internet access from common carrier regulation under Title II of the Communications Act. This decision was not unexpected and is consistent with recent decisions similarly classifying digital subscriber line service and cable modem service.

The FCC’s ruling is based on the fact that while BPL does include the transmission of information and thus includes a telecommunications component, the end user purchases a bundled service and not a separate telecommunications component, so the overall service is not a "service" for regulatory services. Only telecommunications services are classified as common carrier services.

    The decision leaves electric power utilities free to choose whether to provide BPL access to Internet Service Providers as a common carrier or as a private offering. In addition, the FCC has ruled that BPL is an interstate service, thus precluding state agencies from imposing their own common carrier regulatory scheme on BPL.

    If you have any questions about BPL, please contact Peter Tannenwald at tannenwald@fhhlaw.com.

The FCC has decided to allow non-broadcast wireless devices to operate on vacant television channels, but not until February 18, 2009, after the end of the digital transition, when analog television broadcasting is scheduled to end.

The preliminary decision is to allow fixed devices to use the upper VHF and portions of the UHF TV bands, probably on an unlicensed basis; but comments are requested with respect to whether portable devices should also be allowed to operate in these TV bands and whether operations should be unlicensed, licensed, or both.

Without making any final decision, the FCC has left open the possibility that Channels 14-20 may be used by fixed wireless devices in areas where those channels are not used by public safety entities; but it has concluded that portable devices should be completely barred from those channels, because it is impossible to control where users may take them.

Many questions remain unresolved, and comments are invited on these issues.

Comments in this proceeding will be due 75 days after publication of the proposals in the Federal Register, with Reply Comments due 30 days later. As of the date of this Memorandum, those time periods had not yet started to run.

If you have any questions about the FCC’s tentative decisions or proposals, or if you would like to file comments and we may be of assistance, please contact Peter Tannenwald at tannenwald@fhhlaw.com).

The FCC has revised some of the children’s television rules it adopted in 2004, incorporating some, but not all, of the proposals made by the video programming industry. Some of the children's television rules that were adopted in 2004 have been revised. The revisions (1) clarify the extent to which DTV broadcasters may claim credit for repeat broadcasts of "core" programming; (2) replace a fixed cap on the amount of core programming that may be pre-empted with a case-by-case evaluation; (3) ease slightly restrictions on the display of website addresses during children's programming; and (4) revise the definition of commercial matter to allow some promotional announcements during children's programming that are not counted toward commercial time limits.

To avoid the work and potential unpredictability of ad hoc evaluations, the FCC will require networks to seek informal approval of their pre-emption plans in advance on an annual basis. Networks will be required to submit a pre-emption plan annually by August 1^st that sets forth the core-programs that the networks believe will be pre-empted and the replacement time slots in which the programming will be aired. Core programming will count as pre-empted (thus losing credit for the program) if the programming is not re-aired in a uniform substitute time slot, or "second home," with a notification of the change broadcast in the original time slot.

Additionally, a broadcaster is required to maintain records that show its compliance with the website display rules. These records must be kept in the station's public file until the station's next license renewal application is granted. This is a new public file requirement, so stations that are required to keep a public file should make arrangements to prepare appropriate documentation. 

If you have any questions regarding the changes to the FCC's children's television rules, please contact Peter Tannenwald at tannenwald@fhhlaw.com.

The President signed the “Unlawful Internet Gambling Enforcement Act of 2006” which significantly increases the risk of prosecution of broadcast stations that carry advertising for websites on which gambling activities are conducted.

If you are carrying any such advertising, we recommend that you discontinue it immediately.

The new law specifically mentions betting on sporting events as a prohibited activity, even though some people have argued in the past that predicting the outcome of a sporting event requires skill more than chance and so should be outside the scope of lottery laws. The new law also does not alter other laws that permit the operation of certain Native American gambling enterprises covered by a Tribal-State compact, horserace betting that complies with applicable horseracing statutes, and state-operated lotteries. 

 The new statute is focused on financial transactions (checks, wires, credit cards) used to operate Internet gambling and does not explicitly address the games themselves.  Even though the new statute is directed toward financial transactions and does not attempt to outlaw the gambling activity directly (which might be futile since so many Internet gambling websites are located offshore), the intent of Congress to curtail Internet gambling is clear, and we believe that the FCC and the Department of Justice will not sit back and leave the advertising of such gambling alone.  Thus we strongly recommend that broadcast stations not carry advertising for Internet gambling websites that do not fit within an explicit statutory exception to the new law, at least pending further clarification and the promulgation of implementing regulations by federal agencies.

Should you have any questions about the new statute or about advertising gambling activities, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

The FCC recently issued a $12,000 Notice of Apparent Liability for EEO violations and  highlights the importance of recruiting broadly for each full-time vacancy that arises, if your “employment unit” has five or more full-time employees. Reliance solely on Internet sources, walk-ins, and referrals is not sufficient.

 The FCC’s Media Bureau found the licensee in question failed to properly recruit for eight of its 25 vacancies in a 19-month period because it relied solely on walk-ins to fill two of the vacancies and solely on referrals from employees and other individuals to fill six others. The Bureau indicated that reliance walk-ins, employee referrals, and referrals from other individuals “does not constitute recruitment as contemplated under our rules, which require public outreach.”

The lessons to be drawn from this recent NAL are (a) while an employment unit is not barred from hiring a walk-in or a person referred by an employee or another individual, it must not rely solely on those sources to recruit its prospective employees; (b) an employment unit must use at least some non-Internet sources to recruit applicants; and (c) an employment unit must keep detailed EEO records with respect to each job vacancy, including each recruitment source used (with dated copies of all emails, faxes, letters, website printouts and publication affidavits) and each person interviewed, with a notation of the recruitment source from which the applicant learned of the vacancy.

If you have questions about this case or the FCC’s EEO requirements generally, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

The FCC has adopted minor changes to Section 64.4002 of its Rules, specifying minimum standards for the exchange of customer information between Local Exchange Carriers and Interexchange Carriers to help ensure the accuracy of telephone bills and to reduce slamming problems in response to petitions for reconsideration.

The CARE rules require LECs to supply certain information to IXCs (a) when the LEC places an end user on or removes an end user from its network, (b) when an end user makes changes in account information through the LEC rather than the presubscribed IXC, (c) when an IXC requests billing name and address for an end user who uses the IXC’s network but does not have an account with the IXC, and (d) when the LEC confirms or rejects an IXC-initiated order to change a customer’s Primary Interexchange Carrier.

If you have any questions about the CARE rules, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

The FCC continues to step up the pace and to toughen its enforcement of technical broadcast rules, with interpretations which some licensees might not anticipate.

    If you have any questions about any of these recent cases or the FCC’s underlying rules and policies, or if you need help in registering separate AM towers, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

The FCC has issued a Declaratory Ruling that the obligation of telecommunications carriers to protect Customer Proprietary Network Information does not conflict with or limit the obligation of providers of an electronic communications service or remote computing service to report apparent violations of child pornography laws to the CyberTipLine operated by the National Center for Missing and Exploited Children. 

The FCC has held that the two statutes do not conflict, because the CPNI statute contains an exception for any disclosure “required by law,” and the CyberTipLine statute qualifies under that exception.

All telecommunications, electronic communications service, and remote computing service providers should be aware of the CyberTipLine requirement, because failure to report can incur a fine of up to $100,000. The statute does not require a service provider to monitor customer traffic to find child pornography, but it does require a report when such information comes to a provider’s attention. Reports may be made online at www.cybertipline.com or by calling 1-800-843-5678.

If you have any questions about CyberTipLine reporting obligations, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

The FCC has initiated a new rule making proceeding to determine what rules and procedures should be used to evaluate the applications that went through the voided auction and also new applications to be filed in the future, facing a decision of the U.S. Court of Appeals for the District of Columbia Circuit that invalidated its July 2004 auction of Direct Broadcast Satellite licenses, based on a statutory prohibition against using auctions to license satellites for international use.

Since the FCC as a general matter prefers auctions as a simple way to award licenses that also provides economic benefits to the Government, it asks whether it can or should structure rules for future DBS satellites to ensure that they are classified as providing domestic service and thus can be legally auctioned. If the decision is that new applications cannot be auctioned, then the FCC asks whether it should revert to the first-come, first-served rule that applied prior to the 2004 auction. The FCC also invites suggestions for other licensing procedures and asks if it should impose requirements it has used in the past, including performance bonds, construction milestones, annual progress reports, and a limit on the number of applications for new satellites that any one entity may pursue.

The FCC further asks for comments on whether it should adopt rules to protect DBS receiving antennas smaller than the now-standard 45 cm in diameter, to accommodate mobile receivers. In light of the growing popularity and anticipated future proliferation of mobile video systems, the FCC asks, if rules are not adopted to protect small antennas, whether earth station licenses issued to mobile antenna manufacturers should be conditioned to require warnings to their customers that the systems are not protected from interference.

Comments will be due 75 days after the proposals are published in the Federal Register, with Reply Comments due 30 days later. As of the date of this Memorandum, those time periods had not yet started to run.

If you have any questions about the FCC’s new DBS proposals, or if you would like to file comments and we may be of assistance, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

Commission addressed its rules concerning the eligibility of applicants and licensees for designated entity benefits in its Second Report and Order and Second Further Notice of Proposed RuleMaking (“Designated Entity Second Report and Order”) released on April 25, 2006.  

The FCC has issued a ruling subjecting most pre-paid calling cards to interstate access charges and Universal Service Fund contribution obligations. In particular, the ruling holds that the fact that card users are offered a menu of services that include information services or the fact that the call is transported using Internet Protocol do not move the services from the telecommunication service category to the information services category.   

All broadcast stations will be required to file a renewal application between June 2003 and April 2007. Renewal applications for radio stations located in Florida, Puerto Rico, and the Virgin Islands must be filed with the Commission on or before October 1, 2003. Pre-filing announcements must be broadcast on the 1st and 16th days of August and September. Additional information can be found on the FCC's website (www.fcc.gov/mb/audio/renewal).  For more information please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

 

The FCC has proposed licensing and operating rules for the new Ka-band frequencies (at 17 and 24 GHz) that will be made available for new broadcast satellites effective April 1, 2007. These satellites will be authorized to provide a wide variety of services, including broadband, standard and hi-definition video, audio, data, and multimedia, all delivered directly to consumers. Applications have already been filed by DirectTV, Pegasus Development DBS Corp., EchoStar, and Intelsat.

The FCC invites comments on several kinds of operating requirements imposed on existing broadcast satellites that it may also impose on Ka-band operators, including public interest program content, mandatory service to Alaska and Hawaii, and Emergency Action System participation. It also asks whether the new operators will be deemed satellite carriers within the meaning of the compulsory copyright license statute that enables existing broadcast satellites to deliver the signals of terrestrial broadcast stations.

Comments are also requested on what separation should be provided between Ka-band satellite orbital positions, whether the Ka-band orbital separation should be the same as or half of the Ku-band separation or some other number, on various technical rules governing uplink and downlink power limits and antenna performance requirements, the possibility of reverse-band operation, and whether orthogonal polarization and frequency re-use should be required. It also asks whether it should adopt a uniform technical standard that would require all consumer receivers to be compatible with all satellite systems.

Finally, it requests suggestions for managing band-sharing between satellites and terrestrial services, some of which are already in operation.

Comments will be due 30 days after publication of the proposals in the Federal Register, with reply comments due only 15 days later. As of the date of this Memorandum, those time periods had not yet begun to run.

If you have any questions about the new broadcast satellite band, or if you would like to file comments and we may be of assistance, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

 

The FCC has issued a public notice reminding all video programming distributors that information about emergency conditions must be made accessible to persons with hearing disabilities and also persons with visual disabilities. This requirement applies to full power, Class A, and low power television stations, as well as cable systems and other multi-channel program providers that originate emergency information. Unlike the FCC's closed captioning rules, there are no exemptions at all from this requirement.

The emergency information that must be provided does not include all of the details about an emergency. Instead, all "important information," must be provided in sufficient detail to permit a visually or hearing impaired viewer to understand both the nature of the emergency and how the public should respond. The FCC describes important information as "information about a current emergency that is intended to further the protection of life, health, safety, or property, i.e., critical details regarding the emergency and how to respond to the emergency," including the geographic areas affected, evacuation orders, and similar material. Full details may be found in Section 79.2 of the FCC's Rules.

If you have any questions about the FCC's emergency information or captioning rules, please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.

Providers of broadband services, local telecommunications services, and mobile telephone services must submit to the FCC information regarding the deployment of their services on FCC Form 477. The form is due semi-annually, on March 1 and September 1.

Your company must file this report if it meets the following criteria:

Note: Reporting thresholds are calculated based collectively on all commonly-owned and commonly-controlled affiliates operating in a given state. That is, a provider must report for each state in which it and all affiliates collectively meet reporting thresholds. Affiliates are permitted to file forms either combined or separately -- at their discretion.  please contact Peter Tannenwald at tannenwald@fhhlaw.com or Matthew McCormick at mccormick@fhhlaw.com.