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In a decision long awaited by webcasters, the Copyright Royalty Board (CRB) has released its new webcasting royalty rates.  These royalties are paid by non-interactive streaming services on which listeners cannot choose the specific songs they listen to, such as Pandora and radio stations that stream their programming.  The royalties are paid to SoundExchange, a performing rights organization which collects the payments on behalf of record labels and other holders of copyrights in sound recordings.  Services such as Spotify and Apple Music, which allow listeners to choose individual songs to listen to, negotiate licensing arrangements privately with record labels and are not affected by these rates.  The new rates will become effective on January 1, 2016 and will remain in effect until December 31, 2020.

Under the new rate structure, subscription services will pay 22 cents per hundred performances streamed in 2016, with an adjustment based on the Consumer Price Index for subsequent years through 2020. Non-subscription services such as broadcast radio stations will pay 17 cents per hundred performances streamed (with the same CPI adjustment).

For commercial radio stations, the 17 cent rate is a substantial decrease from the 25 cent streaming rate currently paid.  In contrast, pure play (non-broadcast) non-subscription streaming services saw their royalty increase from 14 cents per hundred performances to the new 17 cent rate.  Pandora had argued for a new rate equal to the greater of (i) 11 cents per hundred performances and (ii) 25% of the webcaster’s revenues, while the National Association of Broadcasters and iHeart Media had argued for a rate of 5 cents per hundred performances.  SoundExchange, on the other hand, had proposed a rate for commercial webcasters equal to the greater of (i) 25-29 cents per hundred performances, and (ii) 55% of the webcaster’s revenues.  A “performance” generally consists of the delivery of a song to a single device such as a smartphone.

The royalties are paid for a statutory license allowing webcasters to perform the song by delivering it to listeners’ devices, and to make any ephemeral copies of the song necessary for the streaming process. The CRB is required by statute to adjust royalty rates every five years based on rates which hypothetically would prevail in an open market free from government intervention.

The higher rates will make it tougher for pure play webcasters to make a profit, but Pandora CEO Brian McAndrews focused on the bright side, saying: “This decision provides much–needed certainty for both Pandora and the music industry.”  While pure play webcasters obviously were hoping that their streaming rates would go down, having the new rates at least sets a benchmark against which they can seek to negotiate private deals with record labels.

The National Association of Broadcasters applauded the new rates, with NAB Executive Vice President Dennis Wharton stating that the NAB was “pleased that streaming rates have begun to move in the right direction.”  SoundExchange, on the other hand, announced that “it is deeply disappointing to see that [terrestrial] broadcasters are being given another unfair advantage.”  Webcasters had argued that the rates set in the previous rate-setting proceeding were artificially high and were based on a flawed analysis, including the use of rates paid by interactive services as a basis for setting rates for non-interactive services.  SoundExchange asserted that interactive and non-interactive services were “converging,” and that higher rates were necessary to adequately compensate performers and copyright owners.

The precise reasoning behind the CRB’s decision will not be publically available until after the parties to the proceeding have had an opportunity to review the CRB’s written opinion to determine whether any confidential information should be redacted before it is released to the public.  While the parties will have the right to petition the CRB for reconsideration, and to appeal the decision to the U.S. Court of Appeals, such appeals generally are an uphill battle.  As a result, webcasters and record labels are likely to have to live with the result of today’s decision for the next five years.

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While relief won’t come as soon as radio broadcasters had hoped, the FCC gave AM stations a shot in the arm with the release of an Order designed to provide assistance to the struggling AM radio service.

The Order, released on October 23, 2015, comes a full two years after the October 2013 Notice of Proposed Rulemaking (“NPRM”) that launched the effort.  In the Order, the FCC adopted a number of proposals (with some modifications) from the NPRM.  The most significant of these are exclusive AM filing windows in 2016 to allow AM stations to move an FM translator up to 250 miles to rebroadcast that AM station’s signal, and 2017 windows exclusively for AM stations to apply for a new FM translator construction permit.

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As we reported here, the FCC released its proposals regarding 2015 regulatory fees last May. As August turned into September, licensees were getting anxious as to when the FCC would get around to issuing an order setting the fees and opening the “Fee Filer” online payment system. That happened today with the release of this Public Notice and this Report and Order and Further Notice of Proposed Rulemaking (note that for the reasons discussed below, these FCC website links will not function correctly until the FCC’s website resumes normal operation on September 8th).

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FCC Chairman Wheeler released a blog post today discussing a number of changes and proposed changes to rules impacting TV and radio broadcasters. While his blog contained good news for the radio industry, TV broadcasters are likely to be less pleased.

On the TV side there are two major initiatives. First, the Chairman is proposing to his fellow Commissioners that the FCC adopt an order eliminating what he termed “outdated exclusivity rules”–the FCC’s network non-duplication and syndicated exclusivity rules. These “non-dup” and “syndex” rules, as they are more commonly known, essentially provide a process by which TV broadcasters can efficiently implement the geographic exclusivity they negotiated in their programming agreements without the need for expensive court actions.  The purpose of these rules is to prevent multi-channel video program distributors (MVPDs) from violating that exclusivity by importing the exclusive programming from out-of-market TV stations.

These rules are of particular importance during retransmission negotiations, since without such rules, MVPDs could import, for example, a distant affiliate of the same network (one which obviously did a poor job of negotiating its own retransmission agreement) to violate the local station’s exclusivity.  With the rule change proposed by the Chairman, the local station could no longer quickly and efficiently resolve the problem by filing a complaint at the FCC. Instead, it would need to initiate a long and costly court battle that would inevitably pull in (1) the distant affiliate, and (2) the network whose contract the distant affiliate breached by entering into a retransmission agreement exceeding that affiliate’s geographic right to the network’s programming.

It’s not hard to understand why an MVPD would like blocking the importation of exclusive programming to be a complex, time-consuming, and expensive proposition for a local TV station, but it’s less clear why the federal government would want to create a less efficient process that further clogs up the courts with multi-party litigation.  The obvious answer is that it is not merely a procedural change, but one meant to alter the balance of substantive rights that existed when Congress created the retransmission consent process.

The second major TV-related item is the Chairman’s circulation among his colleagues of a Notice of Proposed Rulemaking (NPRM) to review the process used to determine whether broadcasters and MVPDs are negotiating retransmission consent rights in “good faith”. The purpose of the good faith regulations is to determine whether a party is negotiating with an intent other than that of reaching a deal (e.g., stalling for time).  To implement this requirement, the FCC created a list of bad faith tactics that are prohibited (for example, refusing to show up for negotiations), as well as a “totality of the circumstances” test which seeks to determine whether a party’s conduct as a whole indicates that the party has not made “good faith” efforts to reach a deal.

While only cable systems have been found to have engaged in bad faith negotiations by the FCC, the MVPD industry has long sought to alter the traditional meaning of “good faith” in an effort to limit certain negotiating tactics that have nothing to do with whether a party is intent upon reaching a deal.  Indeed, the focus has been on limiting the negotiation options available to broadcasters, even where, perversely, the result would be longer MVPD program blackouts.

The NPRM proposed by Chairman Wheeler, responding to a congressional directive to examine the matter, will apparently seek to alter the FCC’s approach to determining whether parties are engaging in good faith retransmission consent negotiations. Networks, local TV stations, and MVPDs all will no doubt eagerly await release of this NPRM to determine how the FCC’s proposals are likely to affect negotiating leverage and fees in the retransmission consent world–an odd result given that Chairman Wheeler’s blog post said the reason for eliminating the network non-dup and syndex rules is to “take [the FCC’s] thumb off the scales” in retransmission negotiations.

Call us cynics, but we’ll be surprised if “importing a station into a market where that station has no program rights” joins the list of bad faith negotiating tactics, even though it is the epitome of seeking a way around entering into an agreement with the local broadcaster.

From the broadcast industry’s “glass is half full” perspective, the Chairman’s blog post also indicated that the FCC will soon conclude a nearly four-year effort to update the FCC’s station contest rule.  That rule requires broadcasters to regularly describe the material terms of station contests on-air.  After long consideration, it appears the FCC will allow contest rules to be posted online as an alternative to speed-reading contest rules on-air. We earlier wrote about this proceeding at various stages in FCC Proposes to Clear Airwaves of Boring Contest Rules, But State Law Issues Remain and Bringing the FCC’s Contest Rule Up to Date. This rule change has had broad support, and while applicable to both TV and radio, is of greater practical importance to the radio industry, which tends to run more station contests and doesn’t have the option of airing written rules onscreen.

Finally, following up on his promise before the NAB Show in April, Chairman Wheeler indicated that he will also recommend to his colleagues that the FCC move forward with adopting several proposals in the 2013 AM Revitalization NPRM. This was a hot topic at the NAB Show in Las Vegas earlier this year when the Chairman signaled that the establishment of a window specifically for AM stations to apply for FM translators was essentially off the table, as Scott Flick wrote last April. Most considered an AM-only filing window to be the most practical and effective path to AM revitalization, particularly for AM daytime-only stations.  In fact, the outcry in response to the Chairman’s dismissal of that option appeared to have stalled the AM Revitalization proceeding. While it looks like AM radio broadcasters can expect some relief from the FCC soon, most will be watching to see if an FM translator window for AM stations is part of that relief.  Regardless, today is one of those days where you’d rather be a radio station than a TV station.

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The FCC has released a Notice of Proposed Rulemaking, Report and Order, and Order (really, that’s the title of it) (“NPRM/R&O”) proposing regulatory fees for Fiscal Year 2015 and making other changes to its regulatory fee structure. Comments on the FCC’s proposals are due June 22, 2015, with reply comments due July 6, 2015.

For the fourth consecutive year, the FCC proposed $339,844,000 in regulatory fee payments. The proposed fee tables are attached to the NPRM/R&O as Appendix C and can be used to estimate your likely 2015 regulatory fee burden. Note that effective this year, regulatory fees on Broadcast Auxiliary licenses and Satellite TV construction permits have been eliminated from the fee schedule.

In the NPRM, the FCC requested comment on whether the apportionment of regulatory fees between TV and radio broadcasters should be changed, noting that it expects to collect approximately $28.4 million from radio broadcasters and $23.6 million from TV broadcasters, but that commercial radio stations outnumber commercial TV stations by 10,226 to 4,754. Because the FCC generally allocates regulatory fees based upon the number of FCC employees employed in regulating a particular service, the FCC appears to be suggesting that radio broadcasters may have to shoulder a larger share of the broadcast regulatory fee burden

The FCC also noted that while TV regulatory fees are based upon the size of the DMA in which the TV station is located, radio fees are based upon the population actually served and the class of the station. The NPRM seeks comment on whether changes should be made to this structure, but indicated that any changes made would be unlikely to impact fees this year.

In addition, the FCC requested comment on a petition filed by the Puerto Rico Broadcasters Association requesting regulatory fee relief for broadcasters in Puerto Rico due to economic hardships and population declines specific to Puerto Rico.

Finally, the FCC adopted some changes to its regulatory fee structure. The most significant of these is a new regulatory fee, proposed to be set at $0.12 per subscriber annually, imposed upon direct broadcast satellite (“DBS”) providers (i.e., DISH and DIRECTV). The FCC pointed out that while DBS providers historically have paid regulatory fees with respect to regulation by the International Bureau, they have not paid fees with respect to the Media Bureau which also regulates the service. The payment of fees by DBS providers to recover costs associated with Media Bureau regulation of DBS was teed up in a notice of proposed rulemaking last year and was adopted in the NPRM/R&O.

After comments and reply comments are received, the FCC will release an order setting forth the final 2015 regulatory fee amounts. This order is usually released in August but sometimes isn’t available until September. The order will also establish the precise filing window for submitting regulatory fees, which is typically in the latter part of September.

Those wishing to oppose the proposed regulatory fee changes will need to file their comments and reply comments with the FCC by the respective June 22, 2015 and July 6, 2015 deadlines.

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The FCC today released its much anticipated Open Internet Order. While it will take some time to digest the 313-page decision (though the new rules only total eight pages), here is a brief summary of the highlights:

  • No Blocking. The Order prohibits providers of broadband Internet access services (“broadband services”) from blocking lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
  • No Throttling. The Order prohibits providers of broadband services from impairing or degrading lawful Internet traffic on the basis of content, application or service, or use of a non-harmful device, subject to reasonable network management. This includes no degradation of traffic based on source, destination, or content and prohibits singling out content that competes with the broadband provider’s business model.
  • No Paid Prioritization. The Order prohibits paid prioritization, which the FCC views as the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.
  • No Unreasonable Interference. The Order also prohibits broadband providers from unreasonably interfering with or unreasonably disadvantaging (i) end users’ ability to select, access, and use broadband Internet access service or lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. The FCC indicates that reasonable network management will not violate this rule.
  • Reasonable Network Management. The Order defines reasonable network management as follows:

    A network management practice is a practice that has a primarily technical network management justification, but does not include other business practices. A network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

  • Enhanced Transparency. The rule adopted in 2010, and upheld on appeal, remains in effect. Specifically, broadband providers must accurately disclose information regarding network management practices, as well as performance and commercial terms sufficient for consumers to make informed choices regarding use of the service. The rule has been enhanced by: adopting a requirement that broadband providers always disclose promotional rates, all fees and/or surcharges, and all data caps or data allowances; adding packet loss as a measure of network performance that must be disclosed; and requiring specific notification to consumers that a “network practice” is likely to significantly affect their use of the service. The FCC granted a temporary exemption from these enhancements for small providers (defined for the purposes of this temporary exception as providers with 100,000 or fewer subscribers), and asked the Consumer & Governmental Affairs Bureau to adopt an Order by December 15, 2015 deciding whether to make the exception permanent and, if so, the appropriate definition of “small”.
  • Scope of Rules. The FCC clarified that the rules apply to both fixed and mobile broadband Internet access service. The focus is on the consumer-facing service which that FCC defines as:

    A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

    The definition does not include enterprise services, virtual private network services, hosting, or data storage services. The definition also does include the provision of service to edge providers.

  • Interconnection. Because broadband service is classified as telecommunications, the FCC indicates that commercial arrangements for the exchange of traffic with a broadband provider are within the scope of Title II, and the FCC will be available to hear disputes raised on a case-by-case basis. The Order does not apply the Open Internet rules to interconnection.
  • Enforcement. The FCC may enforce the Open Internet rules through investigation and the processing of complaints (both formal and informal). In addition, the FCC may provide guidance through the use of enforcement advisories and advisory opinions, and it will appoint an ombudsperson on the subject. The Order delegates to the Enforcement Bureau the authority to request a written opinion from an outside technical organization or otherwise to obtain objective advice from industry standard-setting bodies or similar organizations.
  • “Light touch” Title II. While reclassifying broadband services under Title II of the Communications Act, the FCC forbears from applying more than 700 codified rules, including no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules. The FCC also states that reclassification will not result in the imposition of any new federal taxes or fees; the ability of states to impose fees on broadband is already limited by the congressional Internet tax moratorium. The FCC, however, does not forbear from Sections 201 (prohibiting unreasonable practices), 202 (prohibiting unreasonable discrimination), 208 (for filing complaints), Section 222 (protecting consumer privacy), Sections 225/255/251(a)(2) (ensuring access to services by people with disabilities), Section 224 (ensuring access to poles, conduits and attachments), and Section 254 (promoting the deployment and availability of communications networks (including broadband) to all Americans; except that broadband providers are not immediately required to make universal service contributions for broadband services.

The new rules will not go into effect until they have been published in the Federal Register. That publication also starts the clock for parties that want to file petitions for reconsideration or appeals of this decision. With more than 4 million comments filed in the proceeding, you would have to think someone will not be happy with this Order.

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While the FCC’s net neutrality order got most of the attention yesterday, the FCC took another major broadband-related action at its February 26 meeting. Over the strenuous objections of incumbent internet service providers (“ISPs”), trade associations for ISPs, states, the National Governor’s Association and others, the FCC on a 3-2 vote with Commissioners Pai and O’Rielly dissenting, preempted state laws in Tennessee and North Carolina which placed limitations on municipally-owned broadband networks. The FCC’s action, if upheld in the judicial review certain to follow, would allow municipalities currently prohibited by state law from expanding service to do so via federal preemption of those restrictions. Advocates of the FCC’s action argue that it will open the door to a more robust expansion of high-speed broadband service, especially in rural areas and other locations that would otherwise be underserved.

The matter began last year when the City of Wilson, North Carolina and the Electric Power Board of Chattanooga, an agency of the City of Chattanooga, Tennessee (the “EPB”) challenged state restrictions on their operations. Wilson and the EPB own and operate high-speed fiber broadband networks in their respective communities, and each claimed that it wants to expand the geographic scope of its network but is effectively blocked from doing so by state laws. Wilson and EPB asked the FCC to use its power under Section 706 of the Telecommunications Act of 1996 to preempt those laws, arguing that they are inconsistent with the federal policy of making broadband available to all Americans.

Section 706 of the Telecommunications Act provides that the FCC “shall take immediate action to accelerate deployment of [broadband to all Americans] by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.” Wilson and EPB argued that Section 706 gives the FCC the power to preempt the Tennessee and North Carolina statutes because those statutes constitute barriers to network investment and competition. Wilson and EPB were supported by a number of municipalities and municipal utilities, and organizations representing them, as well as by technology companies such as Netflix and scores of individual commenters. Those parties generally argued that encouraging municipalities such as Wilson and EPB to expand internet service to consumers is precisely the sort of competition that the FCC should be promoting, and would encourage the spread of high speed broadband to rural areas that are unserved or underserved by incumbent ISPs. Wilson, EPB and their supporters also asserted that the state laws limiting municipal broadband service were enacted at the behest of incumbent ISPs to insulate them from competition.

Incumbent ISPs and others opposing Wilson and EPB argued that municipal broadband services often fail to succeed financially, leaving taxpayers stuck with the bill, while not necessarily promoting effective competition or the rollout of broadband to unserved areas. They also argued that the FCC lacks authority to preempt state laws under Section 706 because that provision does not explicitly provide such authority. In addition, they argued that preemption would be inconsistent with the Supreme Court’s 2004 decision in Nixon vs. Missouri Municipal League, where municipalities petitioned the FCC for preemption of a Missouri law prohibiting municipalities from providing telecommunications services. At issue in Nixon was the language of Section 253 of the Communications Act of 1934 which provided that no state law could prohibit “the ability of any entity to provide … telecommunications service.” The Court held that “any entity” did not include municipalities, which are political subdivisions of the states themselves. As a result, opponents of Wilson and EPB claimed that Nixon bars the FCC from interfering with a state’s sovereignty over its municipalities by preempting the limitations the state has placed on those municipalities.

Although the text of the Order adopted at the February 26 meeting has not yet been released, from the statements made by the Chairman and commissioners at the meeting, it appears the FCC is asserting that its preemption authority empowers it only to strike down the state restrictions, or “red tape” as Chairman Wheeler referred to them, that the states of Tennessee and North Carolina had imposed on municipalities which they had otherwise authorized to provide broadband service. Proceeding from this perspective, a state could ban a municipality from providing broadband service altogether, but once it has given the municipality authority to provide broadband service, it may not impose restrictions that create barriers to network investment and competition.

It is important to note that the FCC’s Order is limited to the specific statutes in Tennessee and North Carolina, and that other state laws would have to be considered on a case-by-case basis following the filing of petitions with the FCC by municipalities in those states. However, yesterday’s action provides a strong indication of how the current FCC would likely rule in cases involving the other 17 states that have similar restrictions on municipally-provided broadband service.

One can expect at least two things to result from the FCC’s action. First, other municipalities wishing to build or expand their own broadband networks may file petitions with the FCC for preemption of laws in their states claiming that those laws restrict municipally-deployed broadband networks.

Second, the FCC’s action will almost certainly be subject to judicial challenges and stay requests by the States of Tennessee and North Carolina, as well as other parties in interest. By limiting its claimed authority under Section 706 to review restrictions imposed by states on municipal broadband service to “red tape” restrictions, without disturbing a state’s right to make the fundamental decision as to whether a municipality should be permitted to offer broadband service in the first place, the FCC is seeking to navigate a course that will make the preemption more limited and therefore easier to defend in the inevitable court challenges. Whether that will be enough for yesterday’s action to survive a trip through the courts remains to be seen.

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I wrote a post here in June on the FCC’s release of its proposed regulatory fees for Fiscal Year 2014. Normally, the FCC releases an order adopting the official fee amounts and the deadline by which they must be filed in early to mid-August of each year. This year, however, licensees were beginning to get nervous, as August was coming to a close and there had still been no word from the FCC as to the final fee amounts and how quickly they must be paid.

Fortunately, the FCC was able to get the fee order out this afternoon, on the last business day of August. Unfortunately, because the Public Notice of the release occurred on the Friday before a three day weekend, many licensees may miss that announcement. According to today’s Public Notice, full payment of annual regulatory fees for Fiscal Year 2014 (FY 2014) must be received no later than 11:59 PM Eastern Time on Tuesday, September 23, 2014. As of today, the Commission’s automated filing and payment system, the Fee Filer System, is available for filing and payment of FY 2014 regulatory fees. A copy of the Public Notice with the details is available here.

Also, as noted in a footnote to that Public Notice, “[c]hecks, money orders, and cashier’s checks are no longer accepted as means of payment for regulatory fees. As a result, it is the responsibility of licensees to make sure that their electronic payments are made timely and the transaction is completed by the due date.” Time to rack up those credit card frequent flyer miles!

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With the heat of Summer now upon us, the FCC is gearing up for its annual regulatory fee filing window, which usually occurs in mid-September. Like other federal agencies, the FCC must raise funds to pay for its operations (“to recover the costs of… enforcement activities, policy and rulemaking activities, user information services, and international activities.”). For Fiscal Year 2014, Congress has, for the third year in a row, mandated that the FCC collect $339,844,000.00 from its regulatees.

Accordingly, the FCC is now tasked with determining how to meet the Congressional mandate. At its most basic level, the FCC employs a formula that breaks down the cost of its employees by “core” bureaus, taking into consideration which employees are considered “direct” (working for one of the four core bureaus), or “indirect” (working for other divisions, including but not limited to, the Enforcement Bureau and the Chairman’s and Commissioners’ offices). The FCC factors in the number of regulatees serviced by each division, and then determines how much each regulatee is obligated to pay so that the FCC can collect the $339M total.

In its quest to meet the annual congressional mandate, the FCC evaluates and, for various reasons, tweaks the definitions or qualifications of its regulatee categories to, most often, increase certain regulatory fee obligations. FY 2014 is just such an occasion. In FY 2013, the FCC, which historically has imposed drastically different fees for VHF and UHF television licensees, decided that, effective this year, FY 2014, VHF and UHF stations would be required to pay the same regulatory fees. In addition, a new class of contributing regulatees, providers of Internet Protocol TV (“IPTV”), was established and is now subject to the same regulatory fees levied upon cable television providers. Prior to FY 2014, IPTV providers were not subject to regulatory fees.

The FCC’s proposals for FY 2014 regulatory fees can be found in its Order and Second NPRM (“Order”). In that Order, the FCC proposes the following FY 2014 commercial VHF/UHF digital TV regulatory fees:

  • Markets 1-10 – $44,875
  • Markets 11-25 – $42,300
  • Markets 26-50 – $27,100
  • Markets 51-100 – $15,675
  • Remaining Markets – $4,775
  • Construction Permits – $4,775

Other proposed TV regulatory fees include:

  • Satellite Television Stations (All Markets) – $1,550
  • Construction Permits for Satellite Television Stations – $1,325
  • Low Power TV, Class A TV, TV Translators & Boosters – $410
  • Broadcast Auxiliaries – $10
  • Earth Stations – $245

The proposed radio fees depend on both the class of station and size of population served. For AM Class A stations:

  • With a population less than or equal to 25,000 – $775
  • With a population from 25,001-75,000 – $1,550
  • With a population from 75,001-150,000 – $2,325
  • With a population from 150,001-500,000 – $3,475
  • With a population from 500,001-1,200,000 – $5,025
  • With a population from 1,200,001-3,000,000 – $7,750
  • With a population greater than 3,000,000 – $9,300

For AM Class B stations:

  • With a population less than or equal to 25,000 – $645
  • With a population from 25,001-75,000 – $1,300
  • With a population from 75,001-150,000 – $1,625
  • With a population from 150,001-500,000 – $2,750
  • With a population from 500,001-1,200,000 – $4,225
  • With a population from 1,200,001-3,000,000 – $6,500
  • With a population greater than 3,000,000 – $7,800

For AM Class C stations:

  • With a population less than or equal to 25,000 – $590
  • With a population from 25,001-75,000 – $900
  • With a population from 75,001-150,000 – $1,200
  • With a population from 150,001-500,000 – $1,800
  • With a population from 500,001-1,200,000 – $3,000
  • With a population from 1,200,001-3,000,000 – $4,500
  • With a population greater than 3,000,000 – $5,700

For AM Class D stations:

  • With a population less than or equal to 25,000 – $670
  • With a population from 25,001-75,000 – $1,000
  • With a population from 75,001-150,000 – $1,675
  • With a population from 150,001-500,000 – $2,025
  • With a population from 500,001-1,200,000 – $3,375
  • With a population from 1,200,001-3,000,000 – $5,400
  • With a population greater than 3,000,000 – $6,750

For FM Classes A, B1 &C3 stations:

  • With a population less than or equal to 25,000 – $750
  • With a population from 25,001-75,000 – $1,500
  • With a population from 75,001-150,000 – $2,050
  • With a population from 150,001-500,000 – $3,175
  • With a population from 500,001-1,200,000 – $5,050
  • With a population from 1,200,001-3,000,000 – $8,250
  • With a population greater than 3,000,000 – $10,500

For FM Classes B, C, C0, C1 & C2 stations:

  • With a population less than or equal to 25,000 – $925
  • With a population from 25,001-75,000 – $1,625
  • With a population from 75,001-150,000 – $3,000
  • With a population from 150,001-500,000 – $3,925
  • With a population from 500,001-1,200,000 – $5,775
  • With a population from 1,200,001-3,000,000 – $9,250
  • With a population greater than 3,000,000 – $12,025

In addition to seeking comment on the proposed fee amounts, the Order seeks comment on proposed changes to the FCC’s basic fee formula (i.e., changes in how it determines the allocation of direct and indirect employees and thus establishes its categorical fees), and on the creation of new, and the combination of existing, fee categories. The Order also seeks comment on previously proposed core bureau allocations, the FCC’s intention to levy regulatory fees on AM Expanded Band Radio Station licensees (which have historically been exempt from regulatory fees), and whether the FCC should implement a cap on 2014 fee increases for each category of regulatee at, for example, 7.5% or 10% above last year’s fees. Comments are due by July 7, 2014 and Reply Comments are due by July 14, 2014.

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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.