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As those that receive our Pillsbury Client Advisories know (you can sign up for those here), April 10th was the deadline for placing various quarterly reports in your station’s public inspection file.  With many radio stations having shifted to an online public file on March 1st, this was the first quarterly deadline falling after that conversion.  As a result, consider this a friendly reminder that if you dutifully prepared your Quarterly Issues/Programs List a few weeks ago and then unthinkingly dropped it into the file drawer like you’ve done a hundred times before, you’ve got a problem.  The Quarterly Issues/Programs List that was required to be uploaded by April 10th details programming aired from January 1, 2018 through March 31, 2018 designed to serve the needs and interests of your station’s community.

If you generated a paper copy of the List, but forgot that it now must be uploaded, be sure to make a note of that fact and upload it as soon as possible.  Broadcasters are asked in their license renewal applications to certify that all documents have been timely placed in the public inspection file.  With the FCC’s public file database now logging the precise time a document is submitted, failing to properly disclose any late-filed documents is not only easy for the FCC to spot, but creates added risk for stations that falsely certify in their license renewal applications that the public file was complete at all times.  With license renewals occurring only once every eight years, even a few “oops” moments each year can soon begin to look like a “pattern of noncompliance” to the FCC.

There is, however, a very select group of stations that received a bye on the April 10 uploads.  The FCC announced this week that it was granting a small number of waiver requests filed by various stations seeking more time to meet the online public file deadline.  While these stations had sought relief from the requirement for varying periods of time, the FCC’s response was not so specialized.  It instead granted each of the stations seeking more time until June 23, 2018 (60 days from release of the Order) to comply with the online public inspection file requirement.

The FCC also made clear in the Order that it will not be providing such generalized relief in the future.  Going forward, any station seeking more time must provide information that demonstrates (1) the economic hardship the station would incur in complying with the online public file requirement; (2) the station’s technical inability to do so; or (3) another reason for a waiver as described in the 2016 Expanded Online Public File Order.

So if you are one of the select few stations that received a little extra time to move to an online public file, it’s your Second Quarter Issues/Programs List that will be the test of whether you have successfully moved to an online public file mindset.  For all other stations, your time is already up.

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Today the FCC publicly released a Report and Order eliminating TV stations’ annual obligation to report whether they have provided feeable ancillary or supplementary services on their spectrum during the past year unless they have actually provided such services.  The order was originally slated for discussion and a vote at next week’s FCC Open Meeting, but the Commission wound up adopting this widely supported change early, unanimously voting for it on circulation.

Previously, all digital television stations had to report by December 1 of each year whether they had provided feeable ancillary or supplementary services in the past year, what those services were, and then submit payment to the government of 5% of the gross revenue derived from such services.  Ancillary and supplementary services are any services provided on a TV station’s digital spectrum that is not needed to provide the single free over-the-air program stream required by the FCC.  The reason the word “feeable” is important is that broadcast video streams (i.e., multicast streams) do not trigger payment of the 5% fee.  Examples previously provided by the FCC of feeable ancillary and supplementary services include computer software distribution and data transmissions.

Observers had expected this rule change for a while.  In the spring of 2017, FCC Chairman Ajit Pai spearheaded the “Modernization of Media Regulation Initiative,” which aimed to institute a massive review of potentially outdated or irrelevant regulations affecting broadcasters, cable system operators, and satellite providers.  At Commissioner Michael O’Rielly’s urging, the Commission originally proposed today’s changes in a Notice of Proposed Rulemaking (NPRM) in October 2017.  The following month, the Media Bureau spontaneously waived the December 1, 2017 filing deadline for TV stations that had not provided feeable services over the prior twelve-month reporting period, signaling that the proposed rule change was likely coming.

Indeed, the FCC received broad support from commenters for the change.  In last year’s NPRM, the FCC noted that of 1,384 full-power commercial TV stations, fewer than 15 reported revenues from ancillary or supplementary services, netting the Commission around $13,000 in fees.

As a result, today’s Order amends Section 73.624(g) of the FCC’s Rules to require that only TV stations actually providing feeable ancillary or supplementary services need file the report in the future.  The FCC could find no justification for the immense expense incurred in having broadcasters submit, and the FCC collect and process, forms merely indicating the station hadn’t provided such services.  It wasn’t so much the FCC concluding that the expense outweighed the public interest benefit; it was the FCC being unable to point to a public interest benefit.

Which just makes you wonder just how this rule stayed in place for nearly 20 years, and no prior FCC bothered to ask that fundamental question.

 

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Toll-free telephone numbers celebrated their 50th birthday this year (frankly, without much fanfare). These numbers allow callers to reach businesses without being charged for the call. When long distance calling was expensive, these numbers were enticing marketing tools used by businesses to encourage customer calls and provide a single number for nationwide customer service—for example, hotel, airline or car rental reservations.

Toll-free numbers are most valuable to businesses when they are easy to remember because they spell a word (1-877-DENTIST) or have a simple dialing pattern (1-855-222-2222). Like all telephone numbers, however, the FCC considers toll-free numbers to be a public resource, not owned by any single person, business or telephone company. Toll-free numbers are assigned on a first-come, first-served basis, primarily by telecommunications carriers known as Responsible Organizations. The FCC even has rules that prohibit hoarding (keeping more than you need) or selling toll-free numbers.

But the rules will change if the FCC adopts its recent proposal to assign toll-free numbers by auction as it prepares to open access to its new “833” toll-free numbers. The Notice of Proposed Rulemaking issued last week proposes to auction off approximately 17,000 toll-free numbers for which there have been competing requests. The proceeds of these auctions would then be used to reduce the costs of administering toll-free numbers.

The NPRM also contemplates revising the current rules to promote the development of a secondary market for toll-free numbers. This would allow subscribers to reassign toll-free numbers to other businesses for a fee (think 1-800-STUBHUB!). The FCC suggests this would promote economic efficiencies, as the number would presumably be better utilized by a business owner willing to pay for it than by the company that merely happened to claim it first.

The proposed rules are not without controversy. Some toll-free numbers are used to promote health, safety and other public interest goals (e.g., 1-800-SUICIDE). The NPRM seeks comments on whether toll-free numbers used by governmental or certain nonprofit organizations should be exempt from the auction process. There are also questions about whether the expected demand for the 17,000 new numbers will erode if claiming a number is no longer free.

Comments in this proceeding will be due 30 days after the NPRM is published in the Federal Register, with replies due 30 days after that. If you are interested in filing comments, you can reach us at 1-888-387-5714 Call: 1-888-387-5714.  After all, it’s a toll-free call.

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Imagine dialing 911 and hearing an automated voice tell you that what you have dialed is not a valid number; or reaching a 911 call center only to have emergency personnel dispatched to the wrong location. In response to such problems, the FCC recently released a Notice of Inquiry (NOI) asking a broad range of questions about the capability of enterprise-based communications systems (ECS)—internal phone systems used in places like office buildings, campuses and hotels—to provide access for 911 calls.

According to the FCC, certain of these systems may not support direct 911 dialing, may not have the capability to route calls to the appropriate 911 call center, or may not provide accurate information on the caller’s location. The NOI seeks public comment on consumer expectations regarding the ability to access 911 call centers when calling from an ECS, and seeks ways, including regulation if needed, to improve the capabilities of ECS to provide direct access for 911 calls.

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The FCC voted unanimously yesterday to adopt a Notice of Inquiry (“NOI”) that may have a profound impact on the delivery of communications services in residential and commercial buildings, shopping malls and other multiple tenant environments (“MTEs”). This proceeding will revisit FCC rules and policies developed during the last 17 years, focusing on whether changes need to be made to enhance broadband deployment and consumer choice.  Building owners and managers, communications service providers, and tenants all have a stake in the outcome of this inquiry.

In a nutshell, current FCC policies favor competitive access by telecom and video service providers (with some exceptions), and prohibit exclusive contracts between service providers and building owners that would limit such access. These rules also cover access to in-building wiring and the conduits and rights-of-way within these properties that are owned or controlled by the service providers.   The rules apply to regulated service providers because the FCC generally lacks jurisdiction over building owners and managers.

The most recent FCC order, issued in 2010, approved the use of exclusive marketing and bulk billing arrangements between video providers and building owners. Exclusive marketing arrangements give video providers the exclusive right to market services to residents in a building.  Bulk billing arrangements permit the video provider to serve each resident of the building, usually at a significant discount from the retail rate.  The billing for services is often included within the rent, whether the resident uses the services or contracts with another service provider.

The FCC initiated this proceeding in response to allegations from fixed and mobile broadband service providers that they face challenges in expanding their service footprint because of MTEs with exclusive contracts. There are also arguments that state regulations intended to encourage competitive access actually hinder the ability to provide competitive services. In one pending proceeding, a group of service providers has asked the FCC to preempt an ordinance recently adopted by the City of San Francisco requiring building owners to give competing service providers access to existing wiring upon request from a resident, which the complaining service providers and many building owners contend will deter investment in the communications infrastructure of new buildings and is impractical because of space limitations in many older buildings.

Unlike the earlier proceedings which were focused on specific markets (telecommunications or video services) or types of buildings (resident or commercial), the NOI will cover all services and all types of MTEs. Indeed, for the purpose of this proceeding, MTEs include both commercial and residential premises such as apartment and condominium buildings, shopping malls, gated communities, mobile home parks, garden apartments and other centrally managed residential real estate developments, or any multi-unit premise occupied by two or more distinct units.  Most buildings are covered by this proceeding.

Some of the specific questions on which the FCC seeks comment include:

  1. Whether there are state and local regulations that may inhibit broadband deployment and competition within MTEs;
  2. Whether the FCC should revisit its decision approving exclusive marketing and bulk billing arrangements;
  3. Whether revenue sharing agreements, exclusive wiring arrangements or other types of contractual provisions are affecting broadband competition within MTEs;
  4. Whether there are statutory or jurisdictional considerations that should guide the FCC’s actions in this proceeding; and
  5. Whether the proposed reclassification of broadband internet access as an information service will impact the FCC’s legal authority to address broadband deployment within MTEs.

Comments in this proceeding will be due July 24, 2017 and reply comments will be due August 22, 2017.   The NOI process is a first step toward the development of new rules.  Once the NOI comment cycle is completed, the FCC may issue a Notice of Proposed Rulemaking proposing rule changes, requiring another round of comments before new rules could be adopted.

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Robocalls and telemarketing calls are reliably the top source of consumer complaints received by the FCC.  Despite the good intentions of the 1991 Telephone Consumer Protection Act (TCPA), FCC decisions implementing the TCPA, and the collective efforts of the telecom industry, there has been little relief from these unwanted calls—particularly at dinner time.  More problematic is that an increasing number of these calls use false (or spoofed) Caller ID to perpetrate scams designed to trick call recipients into believing the call is coming from the Internal Revenue Service, law enforcement, computer support, or a credit card company.

The FCC is now making another attempt to reduce unwanted and sometimes fraudulent telemarketing calls and robocalls.  In a draft Notice of Proposed Rulemaking and Notice of Inquiry circulated March 2nd and to be considered formally at the next FCC Open Meeting on March 23rd, the FCC is proposing to adopt rules that would allow voice service providers (including wireline, wireless and VoIP providers) to block spoofed calls in certain circumstances. Continue reading →

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As someone who has been deeply involved in planning for the rollout of ATSC 3.0, I get a lot of questions about the next generation broadcasting standard. By far the two most common questions are “When will the transition start?” and “When will it end?”  My answers—which often lead to quizzical looks—are “Very soon.  And never.”

The visible transition to 3.0 in the United States will begin almost immediately after the FCC approves use of the new technology. Transmitters being built today are 3.0 ready, and many hundreds (perhaps more than a thousand) of these transmitters will be installed as a necessary part of the post-incentive auction repacking process.  Broadcasters are already discussing how to provide ATSC 1.0 simulcasts in many markets so that some stations can begin transmitting in 3.0.  Korean television stations will launch ATSC 3.0 broadcasts beginning in May of this year, accelerating the availability of 3.0-compatible receivers.  So, the transition will begin soon.  I would argue it is already underway.

When I say the transition will never end, I don’t mean the broadcast industry is entering its groundhog day. Quite the opposite.  I mean that ATSC 3.0 provides enormous headroom for broadcasting to continue to grow and evolve long after all stations have made the initial conversion.

And that’s the beauty of ATSC 3.0. It will bring a foundational change to the capabilities of our national television broadcast infrastructure.  Most important, it allows broadcasters to continually expand, enhance and improve the services they offer, even after all stations have converted to 3.0.  That’s why I say the “transition” will never end.

Though we can’t put a date on the end, we do know what the first steps are.

Step 1 – Upgrade to 3.0. Within a matter of years, most or perhaps all stations will have completed the transition to ATSC 3.0, in the sense that they will be broadcasting 3.0 signals.  But the services offered, and the networks and systems behind those services, can evolve to meet the changing demands of the incredibly robust and dynamic marketplace in which broadcasters must compete. Continue reading →

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As he rushes to accomplish his list of objectives before the change in administrations, FCC Chairman Tom Wheeler was able to cross one off that list last week. For the first time, the FCC imposed privacy requirements on providers of broadband internet access services (BIAS). The much-anticipated Order requires BIAS providers to notify customers about the types of information the BIAS providers collect about their customers; how and for what purposes the BIAS provider uses and shares this information; and in some circumstances requires customer consent for the use and sharing of this information. This order was an outgrowth of the FCC’s 2015 Open Internet Order, which reclassified BIAS as a telecommunications service and wrested privacy jurisdiction from the Federal Trade Commission.

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The NAB has negotiated a waiver agreement with Sony Music Entertainment that will once again enable radio stations to stream Sony-licensed music unhindered by certain restrictions established by the statutory music streaming license. Stations wishing to take advantage of the Sony waiver need to opt in on the NAB website, and (depending on the amount of streaming they do) may need to place a button on their websites or apps to enable listeners to click through to purchase Sony song downloads.  A previous waiver agreement with Sony, as extended, expired on July 31, 2016, leaving stations without a waiver for the past few months.  NAB’s new agreement with Sony will last until December 31, 2020.

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The era of newsgathering drones is upon us.  Since new Federal Aviation Administration rules allowing limited commercial operation of drones (also known as unmanned aircraft systems or UAS) weighing 55 lbs. or less took effect a little over a month ago, media organizations have moved quickly to utilize the technology.

Sinclair Broadcast Group, which operates or provides services to 173 television stations across the country, recently announced it was going “all in” on newsgathering drones.  It plans to have 80 trained and certified UAS pilots working in 40 markets by the end of 2017, and already has launched UAS teams for newsgathering in Washington, DC; Baltimore, MD; Green Bay, WI; Columbus, OH; Little Rock, AR; and Tulsa, OK.  Providing an example of the benefits drones can bring to newsgathering, Sinclair released footage taken over the Cedar River in Cedar Rapids, IA, showing an aerial perspective of a newly constructed flood wall as the city braced for flooding.

Sinclair’s announcement comes on the heels of CNN’s launch of CNN Aerial Imagery and Reporting (CNN AIR), a unit with two full-time drone operators dedicated to integrating aerial imagery and reporting across CNN networks.

Broadcasters and other organizations with newsgathering operations are increasingly taking advantage of the FAA’s new “Part 107” rules, which took effect on August 29, 2016.  The small drones authorized under the rules offer broadcasters and other news organizations a cost-effective way to gather aerial footage, especially as compared to the cost of using helicopters.  While the Part 107 rules have paved the way for widespread use of newsgathering drones, broadcasters and other potential UAS operators should keep in mind that some requirements must be met before UAS operations can commence.

To protect the public, the Part 107 rules come with a number of operational limitations on UAS operation.  However, if a party can demonstrate the ability to operate safely while deviating from a specific limitation, the FAA may grant a waiver of one or more of the specific limitations found in its rules.  With regard to newsgathering operations, the most relevant limitations (and therefore good candidates for waiver requests) include the prohibitions on flights above people not participating in the UAS operation, flights beyond visual line of sight, flights above 400 feet (or more than 400 feet above a building or other structure), and nighttime flights.  The FAA has added a portal to its website for waiver applications, and has recorded a standard-issue government YouTube video on the subject.  For an example of a waiver that has been granted, take a look at CNN’s waiver for flights over non-participants.

In addition, the Part 107 rules require those operating small drones to either hold a “remote pilot certificate” or be under the supervision of a person who holds such a certificate.  To qualify for a certificate, the applicant must be at least 16 years old, be vetted by the Transportation Security Administration, and pass an aeronautical knowledge test at an FAA-approved testing center.  The FAA offers a free online preparation course for the knowledge test.  In addition to pilot certification, Part 107 requires that all drones used for commercial purposes be marked and registered.  Drones can be registered through the FAA’s website.

Pillsbury launched one of the nation’s first UAS legal teams long before commercial operations were possible, and being a part of these developments has been fascinating.  Because of the myriad issues UAS operations involve, Pillsbury’s UAS practice consists of an interdisciplinary team of lawyers from our Aviation, Communications, Privacy, and Transportation practices.  Those contemplating entering the world of UAS operations for newsgathering or other purposes will find the UAS team’s blog and advisories an excellent place to start.

It’s time to stop reading about drones in the news, and start reading news brought to us by drones.