Articles Posted in Spectrum

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While the road to hell may be paved with good intentions, the path to any government objective is usually paved with forms and paperwork. We were reminded of that today when the FCC released a Public Notice reminding full power and Class A television stations of the May 29 Pre-Auction Licensing Deadline. Only those facilities that a station has constructed and for which a license application has been filed by May 29 will be recognized by the FCC for purposes of the reverse auction and spectrum repacking process. That is, stations will not be able to benefit in the reverse auction from, or claim protection in the repacking process for, any facilities modifications completed after May 29, despite the current September 1, 2015 deadline for transitioning Class A stations to digital operation. We wrote about this deadline back in January.

More importantly, the Public Notice further fleshes out the pre-auction process, announcing that the FCC will release a list, expected in mid-June, of each station’s eligible facilities as reflected in the FCC’s database on May 29. Every full power TV and Class A station will then be required to certify to the FCC that the information for that station in the FCC’s database is correct, or identify any errors.

If the error in the database is the FCC’s mistake, it will be corrected in the database and the corrected facilities protected in the auction and repack.  Where the discrepancy is due to the licensee’s error, the licensee must file a modification application to correct the error and seek Special Temporary Authority to operate at variance until a new license is issued. In the latter case, the corrected facilities will not be used for the reverse auction, nor protected in the repacking if licensed after May 29.  Accordingly, the Public Notice urges licensees to make use of the remaining window of opportunity to modify their authorizations to reflect the parameters that they wish to carry into the auction and repacking process.

As you may have guessed, there will be another form involved, so the Public Notice also officially releases Form 2100, Schedule 381, which stations will have to complete not only to make the certification above, but to provide a significant amount of technical information that the FCC has not previously collected.  The information appears designed to assist the FCC in analyzing the impact its repack decisions will have on individual stations and to identify hurdles to completing the repack in the 39-month time period the FCC anticipates.  Among the requested items are: the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station and the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The information sought is detailed and may take stations time to collect. However, today’s Public Notice announces that stations are expected to file the form within 30 days of the FCC’s release in June of its “protected facilities” list. Accordingly, all full power and Class A television stations that have not already done so should review their facility parameters as reflected in the FCC’s CDBS and Antenna Structure Registration databases to confirm their accuracy and immediately file any needed corrective applications. In doing so, stations should also compile the information they are going to need to complete Schedule 381, as the FCC will be looking for that completed form in July.

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The FCC’s Media Bureau issued a Public Notice today announcing that it would immediately suspend the September 1, 2015 digital transition date for LPTV and TV translator stations. The FCC’s Second Report and Order had established the September 1 deadline for LPTV, TV translator, and Class A TV stations to terminate analog operations and transition to digital. However, in its Third Notice of Proposed Rulemaking, the FCC recognized that the upcoming spectrum auction and repacking process would likely displace a substantial number of LPTV and TV translator stations, and that 795 LPTV and 779 TV translator stations had not yet completed their digital conversion. Seeking to avoid requiring those stations to incur the costs of the digital transition prior to completion of the auction and repacking, the FCC proposed suspending the transition deadline. In today’s Public Notice, the FCC concluded that suspending the digital transition deadline would be appropriate to permit analog LPTV and TV translators to postpone construction of digital facilities that could be impacted by the spectrum auction and repacking.

The FCC’s decision, however, does not affect Class A TV stations, which are still required to complete the digital transition by the September 1 deadline. Class A stations that do not complete construction of their digital facilities by 11:59 pm, local time, on September 1, 2015 will be required to go dark until they complete construction of their digital facilities.

Additionally, although Class A stations are not required to cease analog transmissions until September 1, their digital facilities must be licensed or have an application for a license on file by May 29, 2015 for those digital facilities to be fully protected by the FCC in the repacking process. Any Class A station that fails to meet the May 29 Pre-Auction Licensing Deadline will be afforded protection based solely on the coverage area and population served by its analog facilities, as set forth in the Incentive Auction Report and Order.

The FCC has not announced when the new transition date will be, other than to say the deadline will come after final action in its LPTV DTV proceeding. According to the Third NPRM, the FCC is weighing the benefit of waiting until the close of the auction to establish a new deadline—which would allow the FCC to take into account the overall impact of the repacking process—against announcing a deadline sooner than the end of the auction, which could provide more certainty to LPTV and translator stations about when the digital transition will end and expedite the completion of that transition.

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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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Late today, the FCC released a Public Notice stating that “[e]ffective immediately, the expiration dates and construction deadlines for all outstanding unexpired construction permits for new digital low power television (LPTV) and TV translator stations are hereby suspended pending final action in the rulemaking proceeding in MB Docket No. 03-185 initiated today by the Commission.”

As referenced in that statement, the FCC simultaneously released a Third Notice of Proposed Rulemaking (NPRM) seeking comment on a number of issues related to the transition of LPTV stations to digital and their fate in the post-auction spectrum repacking. Specifically, the FCC states in the NPRM that:

In this proceeding, we consider the measures discussed in the Incentive Auction Report and Order, other measures to ensure the successful completion of the LPTV and TV translator digital transition and to help preserve the important services LPTV and TV translator stations provide, and other related matters. Specifically, we tentatively conclude that we should: (1) extend the September 1, 2015 digital transition deadline for LPTV and TV translator stations; (2) adopt rules to allow channel sharing by and between LPTV and TV translator stations; and (3) create a “digital-to-digital replacement translator” service for full power stations that experience losses in their pre-auction service areas. We also seek comment on: (1) our proposed use of the incentive auction optimization model to assist LPTV and TV translator stations displaced by the auction and repacking process to identify new channels; (2) whether to permit digital LPTV stations to operate analog FM radio-type services on an ancillary or supplementary basis; and (3) whether to eliminate the requirement in section 15.117(b) of our rules that TV receivers include analog tuners. We also invite input on any other measures we should consider to further mitigate the impact of the auction and repacking process on LPTV and TV translator stations.

While primarily focused on the future of the LPTV and TV translator services, the NPRM definitely includes some issues of interest to full-power TV stations as well, including the idea that repacking full-power stations may necessitate the construction of digital-to-digital translators to address situations where such stations “experience losses in their pre-auction service areas”. The extent to which the FCC may create such losses is of course one of the issues currently on appeal before the courts, but such losses might also result from stations voluntarily moving from UHF to VHF channels in the auction, or moving from a High VHF to a Low VHF channel. The FCC proposes to permit such translators only where a loss of service has occurred, and to limit such translators to replicating, rather than extending, a station’s prior coverage area.

Another interesting issue for which the FCC is seeking input in the NPRM is whether to allow LPTV and TV translator stations to channel-share with full-power and Class A TV stations. That issue, as well as the proposal to allow Channel 6 LPTV stations to provide an analog FM audio service as an ancillary service, will make this a particularly interesting proceeding likely to attract lots of comments.

The comment dates have not yet been set, but Comments will be due 30 days after the NPRM is published in the Federal Register, with Reply Comments due 15 days after that. Those operating LPTV and TV translator stations will no doubt be happy to see that the FCC is taking steps to “mitigate the potential impact of the incentive auction and the repacking process on LPTV and TV translator stations,” but the many issues covered by the NPRM make clear that, for many of these stations, it will definitely be an uphill climb.

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Surprise, surprise, the FCC has instituted yet another application filing freeze! The FCC effectively said “enough is enough” and stopped accepting applications for LPTV channel displacements and new digital replacement translators.

Yesterday, the FCC released a Public Notice indicating that, effective June 11, 2014, the Media Bureau would cease to accept applications seeking new digital replacement translator stations and LPTV, TV translator, and Class A TV channel displacements. The FCC did provide that in certain “rare cases”, a waiver of the freeze may be sought on a case-by-case basis, and that the Media Bureau will continue to process minor change, digital flash cut, and digital companion channel applications filed by existing LPTV and TV translator stations.

According to industry sources, there have been grumblings at the FCC that low power television broadcasters have been using the digital replacement translator and LPTV displacement processes to better position themselves from the fallout of the upcoming spectrum auction and subsequent channel repacking. That appears to be confirmed by the Public Notice, as it states that the freeze is necessary to “to protect the opportunity for stations displaced by the repacking of the television bands to obtain a new channel from the limited number of channels likely to be available for application after repacking….” Setting aside the freeze itself for a moment, it seems clear from this statement that the FCC has no illusions that there will be room in the repacked spectrum for all existing low power television stations.

While there have been myriad FCC application freezes over the years, they have been occurring with increasing frequency. From the radio perspective, absent a waiver, extraordinary circumstances, or an FCC-announced “filing window”, all opportunities to seek a new radio license (full-power, low power FM or translator) have been quashed for some time now.

The first notable television freeze occurred in 1948 and lasted four years. The FCC instituted a freeze on all new analog television stations applications in 1996. In furtherance of the transition to digital television, the FCC instituted a freeze on changes to television channel allotments which lasted from 2004 to 2008. In 2010, the FCC froze LPTV and TV translator applications for major changes and new stations; a freeze which remains in effect today.

Yet another freeze on TV channel changes was imposed in 2011 in order to, among other things, “consider methodologies for repacking television channels to increase the efficiency of channel use.” And as Scott Flick wrote here last year, still another television application freeze on full power and Class A modifications was launched on April 5, 2013. That freeze remains in effect and effectively cuts off all opportunities for existing full-power or Class A television stations to expand their signal contours to increase service to the public. The volume of application freezes has grown to such an extent that it is difficult to keep track of them all.

In terms of reasoning, yesterday’s Public Notice indicated that since the DTV transition occurred five years ago, the impact of the instant freeze would be “minimal” since transmission and contour issues should have been addressed as part of, or generally following, that transition. The Notice proceeded to say that LPTV displacement and digital replacement applications were necessary after the DTV transition, and up to the FCC’s April 2013 filing freeze, for purposes of resolving “technical problems” associated with the build-out of full-power DTV stations, but that since there have been no “changes” to those service areas because of the last freeze, there should be no need for LPTV channel displacements or digital replacement translators.

Left out in the cold by these cascading freezes are broadcast equipment manufacturers and tower crews. As previously noted by numerous broadcasters and the NAB, the FCC’s frosty view of just about every form of station modification is effectively driving out of business the very vendors and equipment installers that are critical to implementing the FCC’s planned channel repacking after the spectrum auction. As we learned during the DTV transition, the size and number of vendors and qualified installers of transmission and tower equipment is very limited and, given the skills required, can’t be increased quickly. Driving these businesses to shrink for lack of modification projects in their now-frozen pipelines threatens to also leave the channel repacking out in the cold.

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Earlier today, the FCC held its monthly Open Meeting, where it adopted rules to implement the Broadcast Television Incentive Auction.You can watch a replay of the FCC’s Open Meeting on the FCC’s website.

Thus far, the FCC has released three documents relating to the actions it took today in this proceeding, as well as separate statements from four of the five commissioners, providing at least some initial guidance to affected parties: (1) a News Release, (2) a summary of upcoming proceedings, and (3) a staff summary of the Report & Order.

At the meeting, the commissioners noted that, when released, the Report and Order will contain a number of rule changes to implement the auction. The major takeaways are:

  • The reorganized 600 MHz Band will consist of paired uplink and downlink bands, with the uplink bands starting at channel 51 and expanding downwards, followed by a duplex gap and then the downlink band;
  • These bands will be comprised of five megahertz “building blocks”, with the Commission contemplating variations in the amount of spectrum recovered from one market to the next, meaning that not all spectrum will be cleared on a nationwide basis, and in some markets, repacked broadcasters will be sharing spectrum with wireless providers in adjacent markets;
  • The FCC anticipates there will be at least one naturally occurring white space channel in each market for use after the auction by unlicensed devices and wireless microphones;
  • The auction will have a staged structure, with a reverse auction and forward auction component in each stage. In the reverse auction, broadcasters may voluntarily choose to relinquish some or all of their spectrum usage rights, and in the forward auction, wireless providers can bid on the relinquished spectrum;
  • In the reverse auction, participating broadcasters can agree to accept compensation for (1) relinquishing their channel, (2) sharing a channel with another broadcaster, or (3) moving from UHF to VHF (or moving from high VHF to low VHF);
  • The FCC will “score” stations (presumably based on population coverage, etc.) to set opening prices in the auction;
  • The FCC will use a descending clock format for the reverse auction, in which it will start with an opening bid and then reduce the amount offered for spectrum in each subsequent round until the amount of broadcast spectrum being offered drops to an amount consistent with what is being sought in the forward auction;
  • The auction will also incorporate “Dynamic Reserve Pricing”, permitting the FCC to reduce the amount paid to a bidding station if it believes there was insufficient auction competition between stations in that market;
  • The rules will require repurposed spectrum to be cleared by specific dates to be set by the Media Bureau, which can, even with an extension, be no later than 39 months after the repacking process becomes effective;
  • The FCC will grandfather existing broadcast station combinations that would otherwise not comply with media ownership rules as a result of the auction; and
  • The FCC continues to intend to use its TVStudy software to determine whether a repacked station’s population coverage will be reduced in the repacking process, despite NAB’s earlier protests that the current version of the software would result in reduced coverage for nine out of ten stations in the country.

Finally, the FCC will be asking for public input on numerous additional issues, such as opening bid numbers, bid adjustment factors, bidding for aggregated markets in the forward auction, dealing with market variations, setting parameters for price changes from round to round, activity rules, and upfront payments and bidding eligibility. The FCC will consider in future proceedings ways to mitigate the impact of repacking on LPTV/TV translators, how to address interference between broadcast and wireless operations, and how best to facilitate the growth of “white spaces” devices in the unlicensed spectrum.

Although today’s Open Meeting and these preliminary documents provide some guidance on many complex incentive auction issues, they only scratch the surface, and there are many blanks the FCC will need to fill in between now and the auction. One of those that broadcasters will be watching very carefully is how the Media Bureau will be handling reimbursement of stations’ repacking expenses. That has turned out to be a very challenging issue in past FCC efforts at repurposing spectrum, and the fact that the amount set aside by Congress for reimbursement might well fall short of what is needed has many broadcasters concerned.

We will know more about this and many other issues when the Report and Order is released, hopefully in the next week or two, but the real answers are going to reveal themselves only very slowly over the next year or two. The FCC has to hope that they will still have broadcasters’ attention by the time we reach that point.

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Around this time every year, you typically see an abundance of articles in the trades making predictions about what the FCC will do in the coming year. It has become such a rite of the new year that I’ve even joked about it in past posts.

This year, however, I have noticed much less predictive commentary about the FCC, and it isn’t hard to understand why. 2014 is so far looking like a “to be continued” year, forcing FCC soothsayers to concede that it’s hard to say precisely how 2014 will differ markedly from 2013 at the FCC.

For example, 2014 was originally supposed to be the Year of the Broadcast Spectrum Incentive Auction. However, after the confusion surrounding the federal Affordable Care Act website demonstrated that “set a deadline to launch and it will surely be figured out by then” might not be the optimal approach to complex government projects, Chairman Wheeler agreed with much of the broadcast industry that it will take more time to get such a complicated undertaking right. As a result, he announced last month that the auction is now likely a mid-2015 event. While buying health insurance is indeed complicated, it is ditch-digging compared to designing the Broadcast Spectrum Incentive Auction (official motto: “The Broadcast Spectrum Auction–Making quantum mechanics look easy since 2010″).

Similarly, Chairman Wheeler also last month took media ownership proposals being considered internally at the FCC under the prior Chairman off the table in order to give a “fresh look” at the FCC’s media ownership rules. By statute, the FCC is required to review its media ownership rules every four years and eliminate any that are no longer in the public interest. The tabled proposals were part of the still-in-process 2010 quadrennial review, increasing the likelihood that the 2010 proceeding will now be rolled into the 2014 quadrennial review (official motto: “It’s 2014 already?”).

So does this mean 2014 will be boring for media watchers? Not at all. First, one reason for the dearth of breathless predictions is the relatively recent arrival of Chairman Wheeler. A new Chairman can bring many surprises, and as he has succeeded so far in holding many of his cards close to his vest, it’s too early to tell just what all may be on his 2014 wish list. What he will do in 2014 therefore remains more a matter of speculation than prediction, leading many prognosticators to hold back for the moment.

Second, even if 2014 ends up being a quiet year of incremental change at the FCC, there is plenty to keep things interesting on the media front outside of the FCC. First and foremost, last week’s announcement that the Supreme Court is jumping into the Aereo fray ensures that there will be some dramatic developments in 2014. Similarly, the 2014 elections promise to be a significant event for many media outlets, both in terms of bringing political ad dollars through the door while affecting the political balance of a Congress that has promised a rewrite of the Communications Act of 1934 in the next few years.

While such events will create an interesting 2014 regardless of what the FCC has on its menu, it’s meeting the daily deadlines that keeps media businesses going, and meeting the legal deadlines that keep broadcasters in particular operating. For example, while the state by state radio license renewal application filing cycle concludes in 2014, the TV renewal cycle continues on throughout this year and into 2015.

One way, however, that 2014 will differ from 2013 is that October 1, 2014 marks the every-three-years deadline for TV stations to send their must-carry/retransmission consent elections to cable and satellite carriers. Given the growing importance of retrans dollars for broadcasters, and the fact that, at least with regard to cable, a failure to make an election results in a default election of must-carry, these elections are critically important (in contrast, note that failure to send an election to DirecTV or Dish leads to the opposite result, a default election of retransmission consent, just to make it as confusing as possible).

To help broadcasters navigate the less-exciting but still critically important deadlines that keep their licenses intact, at the end of 2013 we published the 2014 edition of our annual Broadcasters’ Calendar. It can be found on the right side of the CommLawCenter main page, as well as at the Communications Publications section of Pillsburylaw.com.

Also, to stay up to date on industry events, keep an eye on our main page Interactive Calendar, as we upload numerous 2014 industry events, including NAB shows, state broadcasters associations conventions, and Pillsbury seminars and webinars on a variety of communications-related subjects. Predicting may be more fun, but knowing your regulatory deadlines keeps the lights on. Regardless, as 2014 reveals itself, I have little doubt that there will be a lot to talk about, and make predictions about, here at CommLawCenter.

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Late yesterday, the FCC released a public notice providing information on the repacking process that will follow the broadcast spectrum incentive auction. This is the FCC’s second response to calls by a number of parties seeking greater transparency (and information in general) regarding the technical aspects of the repacking process, including the FCC’s repacking model and modeling assumptions. The FCC anticipates that more pieces of the puzzle, including details about how bids will be selected, how channels will be assigned, and the associated algorithms, will be made public in the coming months.

Specifically, in conjunction with the public notice, the FCC has made available the following:

  1. an update to its TVStudy computer software (now version 1.2) and supporting data for determining the coverage area and population served by television stations using the methodology described in OET Bulletin 69. According to the FCC’s public notice, the updated software operates in the same way as the prior version, but has an improved user interface and enhanced capabilities for station-to-station analysis;
  2. data about Canadian and Mexican television allotments and incumbent licensees in a format that can be readily used with the updated TVStudy software program; and
  3. descriptions of the analysis for “pre-calculating” which stations could be assigned to which channels in the repacking process, and which stations cannot operate on the same channels or adjacent channels, based on geographic issues. The software and data being provided contain preliminary assumptions necessary to perform the analysis. The Commission states that those assumptions are for illustrative purposes only and that the FCC has made no decision as to whether to adopt any of them.

While all additional information regarding the auction and repacking process is welcome, this most recent release appears incremental at best, and we have a long way to go before broadcasters or potential auction bidders will be able to accurately assess their options. Given the stakes, however, those who can decipher the FCC’s auction tea leaves earliest, and most accurately, will be at an advantage in the months to come.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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