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The FCC has slowly but surely been striving to improve the nation’s Emergency Alert System (“EAS”) to improve safety warnings to the public. In its most recent effort to achieve this goal, the FCC issued an Order last week updating its rules to establish operational standards to be used during national EAS tests and emergencies. According to the FCC, the release of the Order is meant to “help facilitate the use of EAS in a way that maximizes its overall effectiveness as a public warning and alert system.” The FCC’s rule changes were made in part to respond to problems that occurred during the first nationwide EAS test, which took place in November of 2011.

The FCC’s actions should come as no surprise to those following our reporting on EAS both before and after the first nationwide test. As a refresher, in the Commission’s 2013 EAS Report Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test, the FCC concluded that a number of technical changes could be made to improve EAS and the national alerting system. Among other things, the first nationwide EAS test revealed that many encoders/decoders did not receive or transmit the test because the “location code” sent was “Washington, DC”, which those encoders/decoders did not recognize as being relevant to their local area.

To address this error, the FCC will require EAS participants to be able to receive and process a national location code. Specifically, the Commission has adopted “six zeroes” (000000) as the national location code pertaining to every state and county in the U.S. in order to make EAS consistent with Common Alerting Protocol (“CAP”) standards. This requirement will kick in one year from the effective date of the new rules (the effective date is thirty days after the Order is published in the Federal Register). EAS Participants should be aware that the change to the “six zeroes” national code could make some older “legacy” EAS equipment obsolete, or require that existing EAS equipment software be updated.

The Order also adopted a new rule regarding the use of a National Periodic Test (“NPT”) event code for future EAS testing, which is designed to bring consistency to the operation of EAS equipment in future national, regional, state, and local activations. The FCC determined that using the NPT for national tests would be a less burdensome alternative to using the Emergency Alert Notification (“EAN”) code. This is because the EAN has characteristics that are different than standard event codes, which include having maximum authority to supersede any other live alert or event as well as having no definitive duration. In contrast, the NPT is treated just like other codes, has a duration of two minutes, is already included in Part 11 of the FCC’s Rules, and is therefore already programmed into most EAS equipment. Just like the “six zeroes” for the national location code, all EAS receivers will need to be able to receive the NPT code within one year from the effective date of the new rules.

The FCC is also creating a new and permanent “Electronic Test Reporting System” (“ETRS”) and is mandating that all EAS Participants use the ETRS to electronically file test results with the FCC immediately following any nationwide EAS test.  As many filers may recall, a number of problems occurred with the previous electronic filing system, including not providing filers with confirmation of having filed, and not allowing any updates or corrections to a report after it has been filed. These glitches will hopefully be corrected, and the FCC believes that data retrieved from its new ETRS will be usable to create a planned “FCC Mapbook” database that organizes stations and cable systems by their state, EAS Local Area, and EAS designation. EAS Participants are required to complete the identifying information initially required by the ETRS within sixty days of the effective date of the new ETRS rules, or within sixty days of the launch of the ETRS, whichever is later. 

Lastly, the FCC is requiring EAS Participants to comply with minimum accessibility rules to ensure that EAS visual messages are accessible to all members of the public, including those with disabilities. The Order discussed and adopted new requirements for the following three operational areas in particular: (1) display legibility; (2) completeness; and (3) placement. Regarding display legibility, the FCC amended its rules to require that displays be “in a size, color, contrast, location, and speed that is readily readable and understandable.” For completeness, the FCC amended its rules to require that the EAS visual message “be displayed in its entirety at least once during any EAS alert message.” Finally, for placement, the FCC reiterated its requirement that the EAS visual message “be displayed at the top of the television screen or where it will not interfere with other video messages,” and amended its rules to require that the visual message not “(1) contain overlapping lines of EAS text or (2) extend beyond the viewable display except for crawls that intentionally scroll on and off of the screen.” These new requirements will go into effect six months after their effective date, which is thirty days after their publication in the Federal Register.

Some of these deadlines may seem far in the future, but it is important that EAS Participants be certain that they are capable of processing the NPT and six zeroes location code sooner rather than later. Those unwilling to heed this advice should be aware that the Order specifically states that the Media Bureau will work closely with the Enforcement Bureau to ensure that the new national test rules are strictly followed. In other words, parties that failed to adequately perform (or even participate in) the last national EAS test can expect the FCC to be much sterner the next time around.

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The FCC voted on net neutrality rules in an open meeting today (that was delayed an hour due to yet more snow in DC), and the highly anticipated vote ran into a few last minute snags. First, Commissioner Mignon Clyburn, one of the three Democrats on the FCC’s five-member Commission and an essential vote given the party-line split at the FCC on net neutrality, asked Chairman Wheeler to scale back some of the proposed provisions in the Order prior to today’s vote.

Second, the tension between the Chairman and Republican commissioners Pai and O’Rielly continued, with Pai and O’Rielly not merely voting against the item, but vocally making their case for minimizing rather than expanding the FCC’s dominion over Internet business practices. This followed their spirited opposition in the weeks leading up to the meeting, where commissioners Pai and O’Rielly very publicly urged Chairman Wheeler to release the FCC’s proposed rules to the public for review and to postpone the vote to allow the public 30 days to comment on those rules, a request which the Chairman rejected.

As anticipated, the final vote today was a 3-2 split in favor of reclassifying broadband Internet access under Title II of the Communications Act, thereby making it subject to significant regulation by the FCC. Each of the commissioners released a statement in support of their respective position, with statements in favor from Democratic commissioners Wheeler, Clyburn, and Rosenworcel, and statements in opposition from Republican commissioners Pai and O’Rielly.

The FCC released a Public Notice summarizing the rule changes adopted by the Commission in the Order. According to the Public Notice, the FCC adopted the following bright line rules:

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or the use of non-harmful devices.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind–in other words, no “fast lanes” and no prioritizing the content and services of an Internet Service Provider’s (ISP) affiliates.

The FCC also adopted a “standard for future conduct” whereby ISPs cannot “unreasonably interfere with or unreasonably disadvantage” the ability of consumers to select, access, and use the lawful content, applications, services, or devices of their choosing; or of edge providers to make lawful content, applications, services, or devices available to consumers.” Finally, the FCC added additional ISP disclosure provisions to its existing transparency rule.

Let the litigation begin.

So how did we reach this regulatory crescendo? The core issue that launched the “network neutrality” debate is whether an Internet Service Provider can deliver selected Internet sites and services to customers faster than others in exchange for compensation from the website receiving the benefit. In line with the FCC’s previous approach of treating the Internet as something completely new and different from the telecommunications services it had traditionally regulated, the FCC resisted involving itself in anything that could be described as regulation of the Internet. However, as the Internet grew and it became clear that it (a) was no longer a fledgling service that might be accidentally extinguished by government regulation; and (b) had moved from being a convenience to being as essential to the public as gas or electric, regulatory attitudes began to change.

The result was the FCC’s 2005 Open Internet Policy Statement, in which the FCC concluded that ISPs were not subject to mandatory common-carrier regulation like telephone services (referred to as “Title II” regulation because it is governed by Title II of the Communications Act of 1934). The FCC did conclude, however, that it had authority to regulate ISPs under its ancillary authority to impose “light touch” regulatory obligations under the less restrictive Title I of the Communications Act.
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It is an unusual occasion indeed when the FCC offers to revise its rules to provide regulatory relief to both television and radio stations. Yet that is precisely what the FCC proposed in a Notice of Proposed Rulemaking (NPRM) to update its station-conducted contest rule to allow broadcasters to post contest rules online rather than broadcast them. As the proposal now stands, stations would no longer need to broadcast the contest rules if they instead announce the full website address where the rules can be found each time they discuss the contest on-air.

The FCC’s current contest rule was adopted back in 1976 when broadcasters could only provide contest information via printed copies of the rules available at the station or by announcing the rules over the air. The FCC’s existing rule states that broadcasters sponsoring a contest must “fully and accurately disclose the material terms of the contest” on-air, and subsequently conduct the contest substantially as announced. (For a refresher on the contest rule, you can take a look at the Pillsbury Advisory drafted by Scott Flick covering a number of on-air rules, including the contest rule, here). A note to the rule explains that “[t]he material terms should be disclosed periodically by announcements broadcast on the station conducting the contest, but need not be enumerated each time an announcement promoting the contest is broadcast. Disclosure of material terms in a reasonable number of announcements is sufficient.” The challenge for broadcasters has been airing the material terms of each station contest on-air a “reasonable number” of times without driving audiences away.

In the NPRM, the FCC acknowledged that things have changed since 1976, and that the Internet is now “an effective tool for distributing information to broadcast audiences.” More than three years ago, Entercom Communications filed a Petition for Rulemaking advancing the notion, among others, that the FCC should let broadcasters use their websites to post contest rules instead of having to announce them over the air. Not surprisingly, the Entercom proposal received a great deal of support and it remains unclear why the FCC waited so long to act on it.

The proposed rule would allow stations to satisfy their disclosure obligations by posting contest terms on the station’s Internet website, the licensee’s website, or if neither the individual station nor the licensee has its own website, any Internet website that is publicly accessible. Material contest terms disclosed online would have to conform with any mentioned on-air, and any changes to the material terms during the course of the contest would have to be fully disclosed on-air and in the rules as posted on the website.

Comments on the FCC’s proposals were due this week and it seems most parties are on the same page as the the FCC; namely, that it is the 21st century and the contest rule should be modernized to keep up with the times. In fact, Entercom in its comments asks the Commission to permit stations to announce contest website information an average of three times per day during a contest as an effective way to announce contest information to to public.

While this is generally good news for broadcasters, there is a catch or two. Under the new rule, stations that choose to disclose their contest rules online would be required to announce on-air that the rules are accessible online, and would also be required to announce the “complete, direct website address where the terms are posted … each time the station mentions or advertises the contest.” For stations that promote (or even mention) their contests frequently, this could become a pain really quickly, for both the station and their audience. Listening to a complete and lengthy URL “each time” anything regarding the contest is uttered on the air will grow old fast. There is a reason you rarely hear an ad that contains more than just the advertiser’s domain name, as opposed to the full address for a particular link from that domain. Advertisers know that people will remember a home page domain name much better than a full URL address, and that the full URL address will only cause the audience to tune out, both literally and figuratively.

In light of these concerns, Pillsbury submitted comments this week on behalf of all fifty State Broadcasters Associations urging the Commission to simplify matters by exempting passing on-air references to a contest from any requirement to announce the contest rules’ web address. Additionally, rather than require the broadcast of a “complete and direct website address,” which is typically a lengthy and easily forgettable string of letters and punctuation, the State Broadcasters Associations’ comments urged that the rule only require stations to announce the address of the website’s home page, where a link to the contest rules can be found. Those on the Internet understand quite well how to navigate a website, and will have little difficulty locating contest rules, either through a direct link or by using a site’s search function.

As Lauren Lynch Flick, the head of Pillsbury’s Contests & Sweepstakes practice, noted in a November 2014 post, station contests also must abide by applicable state law requirements. In that vein, the State Broadcasters Associations reminded the Commission that any FCC micro-management of the manner or format of a station’s online contest rule disclosures could subject stations to dueling federal and state requirements with no countervailing benefit. As pointed out in her post, an improperly conducted contest can subject a station to far greater liability under consumer protection laws and state and federal gambling laws than the typical $4,000 fine issued by the FCC for a contest violation. As a result, broadcasters need no further incentives to make sure their contests are fairly run and their rules fully disclosed to potential entrants.

In short, the FCC has an opportunity to ease the burden on both broadcasters and their audiences by allowing stations the flexibility to elect to make their contest rule disclosures online. The FCC shouldn’t diminish the benefit to be gained by reflexively imposing unnecessary restrictions on that flexibility.

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Everyone with a cell phone has probably received an unsolicited telemarketing robocall or text made by a company using an automated dialing system at some point. As we have previously written, a federal statute, the Telephone Consumer Protection Act (“TCPA”), prohibits making any autodialed call or sending a text to mobile phones, except in the case of an emergency or where the called party has provided their consent. And, where the autodialed call is a telemarketing call, that consent must be in writing. Significant fines have been levied against companies that violate the TCPA and related regulations.

Recently, however, there has been considerable debate as to whether a consumer’s consent to receive such calls, once given, can be withdrawn, and if so, whether consumers can waive that right so that marketers can continue to contact them despite a request to opt out. Although the TCPA and its implementing regulations give consumers the right to opt in to receiving telemarketing robocalls and texts, they are actually silent as to consumers’ ability to later change their minds and revoke that consent or opt out.

The further issue of whether consumers can waive their right to revoke their consent after having given it is discussed in a recent Pillsbury Client Alert by Pillsbury attorneys Catherine D. Meyer, Andrew D. Bluth, Amy L. Pierce and Elaine Lee entitled Stop Calling Me: Can Consumers Waive the Right to Revoke Consent under the TCPA? As the Client Alert points out, while most authorities and courts imply a right under the TCPA to revoke previously given consent, some recent decisions have revolved around whether the consumer can contractually give up that right to revoke.

Because the TCPA’s restrictions apply not just to businesses that use autodialers, but to businesses that use telephones capable of autodialing (which, some are arguing at the FCC, include pretty much any smartphone), the answer to this question could affect a large number of businesses and not just telemarketers.

In short, while the permanence of a consumer’s consent to be called is now somewhat up in the air, businesses calling consumer cell phones using equipment capable of autodialing need to be knowledgeable about all of the requirements of the TCPA, including whether they have received, and continue to have, a consumer’s consent to make that call.

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In a just released Public Notice, the Media Bureau has designated May 29, 2015, as the Pre-Auction Licensing Deadline. That is the date by which certain full-power and Class A TV stations must have a license application on file with the FCC in order for their modified facilities to be protected in the repacking process following the spectrum incentive auction.

While the FCC earlier concluded that full-power and Class A TV facilities licensed by February 22, 2012 would be protected in the repacking, it envisioned protection of TV facilities licensed after that date in a few specific situations. It is to this latter group that the May 29, 2015 deadline applies. These include:

  • Full-power television facilities authorized by an outstanding channel substitution construction permit for a licensed station, including stations seeking to relocate from Channel 51 pursuant to voluntary relocation agreements with Lower 700 MHz A Block licensees;
  • Modified facilities of full-power and Class A television stations that were authorized by construction permits granted on or before April 5, 2013, the date of the FCC’s announcement of a freeze on most television modification applications, or that have been authorized by construction permits that were granted after April 5, 2013, but which fit into one of the announced exceptions to the application freeze; and
  • Class A TV stations’ initial digital facilities that were not licensed until after February 22, 2012, including those that were not authorized until after announcement of the modification application freeze.

Today’s announcement means that, with the exception of stations affected by the destruction of the World Trade Center, stations in the categories above must complete construction and have a license application on file with the FCC by the May 29, 2015 deadline if they wish to have those facilities protected in the repacking process. According to the Public Notice, licensees affected by the destruction of the World Trade Center may elect to protect either their licensed Empire State Building facilities or a proposed new facility at One World Trade Center as long as that new facility has been applied for and authorized in a construction permit granted by the May 29 deadline.

The Public Notice will inevitably cause some confusion, as it refers in a number of places to having a facility “licensed” by the May 29 deadline (e.g., “We also emphasize that, in order for a Class A digital facility to be afforded protection in the repacking process, it must be licensed by the Pre-Auction Licensing Deadline.”). Fortunately for those of us that read footnotes carefully (that’s what lawyers do!), the FCC stated in the small print that “[t]he term ‘licensed’ encompasses both licensed facilities and those subject to a pending license to cover application….”

For those holding TV licenses that are more interested in the spectrum auction than in the repacking of stations afterwards, the Pre-Auction Licensing Deadline is also relevant, as the FCC indicates that “[t]he Pre-Auction Licensing Deadline will also determine which facilities are eligible for voluntary relinquishment of spectrum usage rights in the incentive auction.” In other words, to the extent the FCC bases auction payments in part on a selling station’s coverage area, the facilities constructed by the Pre-Auction Licensing Deadline (with a license application on file) will be used in making that determination.

Finally, the Public Notice indicates that this is a “last opportunity” for full power and Class A TV stations to modify their licenses to correct errors in their stated operating parameters if they want the FCC to use the correct operating parameters in determining post-auction protection.

So, whether a television station owner is planning on being a seller or a wallflower in the spectrum auction, today’s announcement is an important one, and represents one of the FCC’s more concrete steps towards holding the world’s most complicated auction.

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The press has been abuzz in recent months regarding the launch of various Internet-based video services and the FCC’s decision to revisit its current definition of Multichannel Video Programming Distributors (MVPDs). In December, the FCC released a Notice of Proposed Rulemaking (NPRM), seeking to “modernize” its rules to redefine what constitutes an MVPD. The FCC’s proposals would significantly expand the universe of what is considered an “MVPD” to include a wide-variety of Internet-based offerings. Today, the FCC released a Public Notice providing the dates by which parties can provide their own suggestions regarding how to modify the definition of “MVPD”. Comments are now due February 17, 2015, with reply comments due March 2, 2015.

The Communications Act currently defines an “MVPD” as an entity who “makes available for purchase, by subscribers or customers, multiple channels of video programming.” Specific examples given of current MVPDs under the Act are “a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor who makes available for purchase, by subscribers or customers, multiple channels of video programming.” The Act states, however, that the definition of MVPD is “not limited” to these examples.

Historically, MVPDs have generally been defined as entities that own the distribution system, such as cable and DBS satellite operators, but now the FCC is asking for comments on two new possible interpretations of the term “MVPD.” The first would “includ[e] within its scope services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming.” The second would hew closer to the traditional definition, and would “require an entity to control a transmission path to qualify as an MVPD”. The FCC’s is looking for input regarding the impact of adopting either of these proposed definitions.

What all this means is that the FCC is interested in making the definition of “MVPD” more flexible, potentially expanding it to include not just what we think of as traditional cable and satellite services, but also newer distribution technologies, including some types of Internet delivery.

Underscoring its interest in this subject, the FCC asks a wide array of questions in its NPRM regarding the impact of revising the MVPD definition. The result of this proceeding will have far-reaching impact on the video distribution ecosystem, and on almost every party involved in the delivery of at least linear video programming. Consequently, this is an NPRM that will continue to draw much attention and merits special consideration by those wondering where the world of video distribution is headed next.

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The Federal Communications Commission recently adopted a Report and Order to streamline and eliminate outdated provisions of its Part 17 Rules governing the construction, marking, and lighting of antenna structures. According to the Commission, the goal was to “remove barriers to wireless deployment, reduce unnecessary costs, and encourage providers to continue to deploy advanced systems that facilitate safety while preserving the safeguards to protect historic, environmental and local interests.” The question, as Commissioner O’Rielly put it, is “why did it take nine years to get this item before the Commission for a vote?” While it was a long time in coming, the changes the FCC made will be mostly welcomed by tower owners across the country.

The need for changes to the rules was first raised in the FCC’s 2004 Biennial Ownership Review, and the FCC initiated a formal review of the antenna structure rules in 2010 in a Notice of Proposed Rulemaking. The FCC’s goal in streamlining Part 17 of its rules was to improve compliance and enforcement while eliminating unnecessary and burdensome requirements for tower owners. The revised rules impact a number of regulations, and the hope is that the changes will also harmonize the FCC’s rules with the safety recommendations and rules of the Federal Aviation Administration (FAA). That said, in its update, the FCC made a point of removing from its rules references to FAA Circulars that the FCC has determined are out of date.

The primary changes to the rules that tower owners should be aware of are:

Antenna Structure Marking and Lighting Specifications. The Order updated the FCC’s rules to require that tower owners comply with the marking and lighting specifications included in the FAA’s “no hazard” determination for that particular tower, thereby making FCC and FAA regulations consistent in this area. The Order also emphasized that changes to marking and lighting specifications on an Antenna Structure Registration (ASR) require prior approval from both the FAA and the FCC. Importantly, the FCC specifically declined to require existing antenna structures to comply with any new lighting or marking requirements unless mandated to do so by the FAA.

Accuracy of Height and Location Data. The FCC noted in the Order that its prior rules did not define what kinds of “alterations” to an existing tower required a new registration and FCC approval prior to making those changes. The new rules are clear that FCC approval is required for any change or correction to a structure of one foot or greater in height, or one second or greater in location, relative to the existing information in the structure’s ASR form. The new criteria is the same as that used by the FAA for requiring a new aeronautical study and determination of “no hazard”.

Notification of Construction or Dismantlement. Tower owners are now required to notify the FCC within five days of “when a construction or alteration of a structure reaches its greatest height, when a construction or alteration is dismantled or destroyed, and when there are changes in structure height or ownership.” Under the prior rules, structure owners were given only 24 hours to provide notification to the FCC.

Voluntary Antenna Structure Registration. Under the FCC’s prior rules, tower owners were given the option to voluntarily register structures even when the FCC’s rules did not require registration. The new rules will still allow voluntary registration, but parties will be allowed to indicate that the registration is indeed voluntary, and they will not be subject to the Part 17 rules that apply to towers that are required to be registered (i.e., towers that exceed 200 feet or, for those located in close proximity to an airport, lower heights).

Posting of Antenna Structure Registrations. The new ASR posting requirement gives tower owners greater latitude regarding where they must post their Antenna Structure Registration numbers. The old rule required that the ASR number be displayed “in a conspicuous place so that it is readily visible near the base of the antenna structure.” As a result of the rule change, registration numbers can now be posted at the “closest publicly accessible” location near the tower base.

Providing Antenna Structure Registration to Tower Tenants. Tenant copies of ASRs will no longer need to be given to tenants in paper. Under the new rules, a link to the FCC’s website can be provided by mail or email.

Inspection of Structure Lights and Associated Control Equipment. The Order established a process allowing qualifying network operations center-based monitoring systems to be exempted from the existing quarterly inspection requirements that apply to automatic or mechanical control devices, indicators, and alarm systems used to ensure tower lighting systems are functioning properly. Specifically, systems with advanced self-diagnostic functions, an operations center staffed with “trained personnel capable of responding to alarms 24 hours per day, 365 days per year”, and a backup network operations center that can monitor systems in the event of failure, may be eligible for the exemption.

Notification of Extinguishment or Improper Functioning of Lights. The FCC’s rules require that when tower lights do go out, tower owners immediately notify the FAA so that the FAA can issue a Notice to Airmen (NOTAM) to make aircraft aware of the outage. Parties are also required to notify the FAA when repairs have been completed so that the FAA can cancel the NOTAM. Under the new rules, tower owners are required to keep the FAA up to date and let the FAA know when repairs are expected to be complete at the expiration of each NOTAM (which last 15 days each). The good news is that the FCC clarified its rules somewhat, stating that lighting repairs must be completed “as soon as practicable”. Instead of adopting a fixed deadline for repairs to be made, the FCC will consider whether the tower owner has exercised due diligence and made good faith efforts to complete repairs in a timely manner.

Recordkeeping Requirements. Under the FCC’s prior rules, there was no specification regarding how long records of improper functioning needed to be kept. Under the newly adopted rules, the FCC requires antenna structure owners to maintain records of observed or otherwise known outages or improper functioning of structure lights for two years, and the records must be provided to inspectors upon request.

Maintenance of Painting. With regard to painting, the FCC adopted the FAA’s “In-Service Aviation Orange Tolerance Chart” as the standard for determining whether an antenna structure needs to be cleaned or repainted. The FCC did not say how often towers should be repainted or how close someone has to be to compare the colors on the chart with those on the tower. The FCC did say that placing the chart over a portion of the top half of the tower would give the best results, as that is where most of the wear and tear typically occurs.

The new rules will take effect thirty days after notice of the Order is published in the Federal Register (except for those provisions requiring Office of Management and Budget approval), which has not yet occurred. Despite the time it took to adopt new rules, the rule changes themselves are relatively straightforward, and tower owners should be sure to take advantage of the new rules when they take effect. It’s not every day we see less regulation from the FCC.

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The FCC’s July 11, 2014 Order, concluding that clips of video programming shown by broadcasters are required to be captioned when delivered on the Internet, was published in the Federal Register this week. The rule specifically applies when a provider posts a video clip or video programming online that was first aired on television (“covered” Internet Protocol (IP) video). The FCC ultimately plans to expand its Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) captioning rules to cover all forms of video programming on the Internet.

As I have discussed many times previously, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions. Some of my recent posts on the subject can be found at the following links: “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”.

More recently, I noted that the FCC sought comment on information regarding whether it should remove the “video clip” exemption from its rules. The FCC’s final answer was “yes”. The rules will apply to video clips regardless of their content or length.

According to the FCC, the new rules are intended to accomplish the following:

  • Extend the IP closed captioning requirements to IP-delivered video clips if the video programming distributor or provider posts on its Web site or application a video clip of video programming that it published or exhibited on television in the United States with captions;
  • Establish a schedule of deadlines for purposes of the IP closed captioning requirements;
  • After the applicable deadlines, require IP-delivered video clips to be provided with closed captions at the time the clips are posted online, except as otherwise provided;
  • Find that compliance with the new requirements would be economically burdensome for video clips that are in the video programming distributor’s or provider’s online library before January 1, 2016 for “straight lift clips”, and January 1, 2017 for “montages”; and
  • Apply the IP closed captioning requirements to video clips in the same manner that they apply to full-length video programming, which among other things means that the quality requirements applicable to full-length IP-delivered video programming will apply to video clips.

In its Order, the FCC also established the following set of deadlines for providing captions based on the type of video clip shown:

  • January 1, 2016: for “straight lift” clips, which include a “single excerpt of a captioned television program with the same video and audio that was presented on television”;
  • January 1, 2017: for “montages”, which are defined as a single file containing “multiple straight lift clips”; and
  • July 1, 2017: for “video clips of live and near-live television programming, such as news or sporting events”, keeping in mind that there is a “grace period” of twelve hours to caption “live video programming” and eight hours to caption “near-live programming.”

As part of the item, the FCC also issued a Second Further Notice of Proposed Rulemaking, which proposes to extend the reach of the FCC’s captioning rules even further. Among other things, the Further Notice is specifically asking for comment regarding whether: (1) third party video programming providers and distributors should be subject to the closed captioning requirements; (2) the FCC should decrease or eliminate the “grace periods” for “live” and “near-live” programming; (3) application of the IP closed captioning requirements should be extended to “mash-ups”, which the FCC defines as files that “contain a combination of video clips that have been shown on television with captions and online-only content”; and (4) application of the IP closed captioning rules to “advance” video clips “that are first added to the video programming distributor’s or provider’s library on or after January 1, 2016 for straight lift clips or January 1, 2017 for montages, but before the associated video programming is shown on television with captions, and which then remain online in the distributor’s or provider’s library after being shown on television.”

Comments on the Further Notice are due October 6, 2014, and reply comments are due November 3, 2014.

As is often the case, the new closed captioning rules adopted by the FCC are complex and parties should make sure that they remain up to speed with the rapid pace of the ever evolving rules in this area. The Order and Further Notice demonstrate that the FCC appears far from satisfied with the many new closed captioning rules that it has already adopted in recent years and that there will undoubtedly be additional rules to deal with in the not too distant future.

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For those of you following our numerous posts on EAS matters over the years, a new chapter starts today. After participating in EAS summits and meetings for such a long time, it’s hard to disagree that working to improve emergency alerts for all of us is one of the more important items before the FCC. The EAS summits hosted to address improvements to the alert system have been very useful toward achieving that goal, and many thanks should go out to the state broadcasters associations, the FCC, FEMA, the National Association of Broadcasters, Capitol Hill staff, and many others for working hard to save lives in emergencies, realizing in particular the vital role that local broadcasters play in that effort.

Today, the FCC’s latest EAS NPRM was published in the Federal Register, which means that parties will have 30 days to file comments and an addition fifteen days for reply comments. Comments are therefore due on August 14, and reply comments are due on August 29.

The NPRM is highly technical, but the proposed changes to Part 11 of the Commission’s Rules are a response to the nationwide EAS test held in November 2011. The FCC notes in the NPRM that since the national test, it has implemented CAP and the Wireless Emergency Alert system to standardize geographically-based alerts and interoperability among equipment. According to the Commission, the proposals in the NPRM are intended as first steps to fix the vulnerabilities uncovered in the national test.

A copy of the NPRM can be found here.

Lots of very specific questions are posed in the NPRM, but the principal proposals are:

  • The FCC proposes that all EAS participants have the capability to receive a new six zero (000000) national location code. The national test used a location code for Washington, DC, but many EAS units apparently rejected it as outside their local area. The FCC says that the proposal is intended to remedy this problem by providing a code that will trigger EAS units regardless of location.
  • The second major proposal is to amend the rules governing national EAS tests. The FCC proposes to amend the rules to create an option to use the National Periodic Test (NPT) for regular EAS system testing and seeks comment on the manner in which the NPT should be deployed.
  • The Commission is also proposing to require that all EAS Participants submit test reports on an electronic (as opposed to paper) form. The information in the electronic reports that identifies monitoring assignments would then be integrated into State EAS Plans. The FCC proposes to designate the EAS Test Reporting System (ETRS) as the primary EAS reporting system and to require that all EAS Participants submit nationwide EAS test results data electronically via the ETRS for any future national EAS test.
  • The NPRM also asks whether the FCC should require that emergency crawls be positioned to remain on the screen (and not run off the edge of the screen) and be displayed for the duration of an EAS activation.

Finally, although not a primary topic of the NPRM, the FCC proposes that a reasonable time period for EAS Participants to replace unsupported equipment and to perform necessary upgrades and required testing to implement the proposed rules be six months from the effective date of any rules adopted as a result of the NPRM.

The NPRM attempts to tackle some difficult technical issues and is a tough read. However, given what is at stake, and the challenges of implementing a more nationwide approach to EAS, it is worth the effort.

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April 2014

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:

  • FCC Proposes $12,000 in Fines for Contest Violations
  • $20,000 Fine for Unlicensed Operation and Interference
  • Violations of Sponsorship Identification and Indecency Rules Lead to $15,000 Consent Decree

Changing Rules and Delay in Conducting Contest Lead to $12,000 in Fines

Late last month, the FCC’s Enforcement Bureau issued two essentially identical Notices of Apparent Liability for Forfeiture (“NALs”) against two radio station licensees for failure to conduct a contest as advertised. Although the stations have different licensees, one licensee provided programming to the second licensee’s station through a time brokerage agreement. The brokering station’s response to a letter of inquiry (“LOI”) addressed both licensees’ actions with regard to the contest. In the subsequent NALs, the FCC’s Enforcement Bureau proposed a $4,000 fine against the brokered licensee and an $8,000 fine against the brokering licensee.

In July of 2009, the FCC received a complaint that several radio stations held a weekly contest called “Par 3 Shoot Out” but did not conduct the contest substantially as announced or advertised. Specifically, the complaint maintained that at least one participant did not receive a promised prize of a golf hat and was not entered into a drawing to win a car or other prizes (as was promised in the contest’s rules). About four months later, the FCC issued an LOI to the licensee conducting the contest about the claims made in the complaint. In its response to the LOI, the licensee conducting the contest indicated that the contest consisted of two phases. The first was an 18-week, online golf competition where the highest-scoring contestant each week would win a hat from a golf club. Each weekly winner and one write-in contestant would be able to participate in the second phase of the contest, a real golf competition consisting of taking one shot at a three par hole. As was publicized online, the prize for the winner of the second phase was a $350 golf store gift certificate, and if anyone hit a hole-in-one, they would win a Lexus car.

According to the brokering licensee, the first phase of the contest took place between June and November 2008. The contest took place entirely online, and although the second phase was scheduled to begin in November 2008, it was postponed due to inclement weather and ultimately did not occur at all because the employee who was tasked with running the live golf competition was fired, and the remaining staff never resumed the contest. The brokering licensee further indicated that it forgot about the contest until it received the FCC’s LOI, and, after receiving the LOI, the second phase of the contest occurred and was completed by January 2010. The brokering licensee indicated that it had provided additional prizes of a $25 golf store gift card and a catered lunch to each finalist in the second phase given the delay in conducting the contest.

Section 73.1216 of the FCC’s Rules requires that a station-sponsored contest be conducted “substantially as announced or advertised” and must fully and accurately disclose the “material terms,” including eligibility restrictions, methods of selecting winners, and the extent, nature and value of prizes involved in a contest.

The Enforcement Bureau determined that the contest was not conducted as announced or advertised because the rules were changed during the course of the contest and the contest was not conducted within the promised time frame. The Bureau further found that the licensees failed to fully disclose the material terms of the contest as required by the Commission’s rules. According to the Bureau, the on-air announcements broadcast by the stations failed to mention all of the prizes the licensee planned to award and failed to describe any of the procedures regarding how prizes would be awarded or how the winners would be picked. The brokering licensee argued in its response to the LOI that the full rules were included online, which was a better way to make sure that potential contest participants were not confused. However, the Bureau found that while licensees can supplement broadcast announcements with online rules, online announcements are not a substitute for on-air announcements.

The base fine for failure to conduct a contest as announced is $4,000. The Bureau determined that, contrary to the argument presented in response to the LOI, “neither negligence nor inadvertence” due to the overseeing employee’s departure “can absolve licensees of liability.” The Bureau also said that providing additional prizes to make up for the delay does not overcome the violation of Section 73.1216. Finally, the FCC found that the licensees had failed to disclose the material terms of the contest because the advertisements that were broadcast over the air did not mention certain prizes.

The FCC proposed to impose the base fine amount of $4,000 against the time-brokered station after determining that the licensee had violated Section 73.1216. For the brokering licensee, the FCC proposed an increased fine of $8,000 because of the licensee’s “pattern of violative conduct, and because it conducted the Contest over four stations, not one, thus posing harm to a larger audience.”

Nine Years of Unauthorized Operation and Interference to Wireless Operator Lead to Large Fine

The FCC recently issued a Forfeiture Order to the former licensee of a Private Land Mobile Radio Service (“PLMRS”) station. The Forfeiture Order follows an NAL that the FCC released in July of 2012 proposing a fine of $20,000 for the former licensee of the facility for operating without a license for nine years and causing interference to another wireless service provider.

The former licensee initially received the license for the PLMRS station in April 1997 for a five-year term. Three months before the expiration of the license, the FCC sent the licensee a reminder to renew the license, but the licensee never filed a renewal application. Therefore, the license expired in April of 2002. Nevertheless, the licensee continued operating the station, and on July 31, 2011, filed a request for Special Temporary Authority (“STA”) with the Wireless Telecommunications Bureau of the FCC. The licensee stated in the application that it had recently discovered that its license had expired and that it needed an STA to continue operating the station. The Wireless Bureau granted the STA three days later for a period of six months, until the end of January 2012. Continue reading →