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With much of the United States under COVID-19 stay-at-home directives, and frost warnings still in the forecast, it’s as good a time as any to review the upcoming cable and satellite carriage election process for television broadcasters. The FCC recently completed an overhaul of its rules governing how eligible television broadcasters provide notice of their carriage elections to cable and satellite companies. The first deadline under those new procedures is July 31, 2020, when broadcasters must update their online contact information at the FCC as a precursor to implementing the FCC’s new paperless MVPD carriage notification procedures.

Ever since Congress created the must-carry/retransmission consent regime in the 1992 Cable Act, broadcasters have mailed paper notices to MVPDs regarding their must-carry/retransmission consent elections prior to October 1st of every third year. With regard to satellite distributors, this process has always required stations to send their election notices via certified mail, return receipt requested. While the rules didn’t specifically require this for notices to cable systems, the lack of specificity in the rules regarding cable notices led most broadcasters to use the same procedures as used with satellite providers.

This approach often imposed significant costs on broadcasters, requiring them to: (1) identify the MVPDs serving each of their markets, (2) locate the correct contact person for carriage matters at each MVPD, (3) prepare the election letters, (4) send the letters to that contact person via certified mail, (5) confirm receipt of each letter, and (6) be prepared to move quickly to find new contact information and send new election letters (which still must be received by the October 1 deadline) where the post office returns an election letter as undeliverable.

In 2019, the FCC took the first step to simplify this process and reduce the corresponding costs. Specifically, it adopted rules requiring both television broadcasters and MVPDs to post in their online Public Inspection Files an email address and telephone number for the employee responsible for handling carriage inquiries. In addition, MVPDs must place similar contact information in the FCC’s COALS filing system. The FCC has now directed television stations and MVPDs to complete these tasks by July 31, 2020.

In the FCC’s new paperless notice system, after the contact information has been uploaded, TV stations will have until October 1, 2020 to upload to their online Public Inspection File their carriage elections. This election will cover the next three-year cycle from January 1, 2021 to December 31, 2023.

Because noncommercial stations cannot elect retransmission consent on MVPDs, the FCC found that it could simplify the process for noncommercial stations by eliminating the need for further triennial elections after the October 1, 2020 election notice is placed in the station’s Public Inspection File.

This new “Public File” approach also simplifies the process for commercial TV stations going forward in that they will only have to send a separate notice to an MVPD if the station seeks to change its election for that MVPD from its election for the prior three-year cycle. In such cases, the station must send an email to the MVPD containing certain information with regard to its change in election, and send a “carbon copy” to a newly-created FCC email address for such notifications. The MVPD is then required to acknowledge receipt via email.

The copy sent to the FCC email address is intended to serve as evidence of the station’s effort to provide the required email notice to the MVPD. If the station does not receive the required acknowledgement from the MVPD, it must call the MVPD’s contact telephone number. Where the station retains records demonstrating that it took the above steps, and timely uploaded its election to its online Public File, the FCC will consider the station’s election to be effective.

In adopting these new procedures, the FCC noted that two classes of television broadcast facilities eligible for carriage are not required to maintain online Public Inspection Files: (i) low-power television stations that qualify for must-carry rights, and (ii) qualified educational television translators. Because of this, the FCC adopted rules in March 2020 to implement slightly different election notification requirements for these facilities.

Specifically, eligible low-power television stations and educational television translator stations will be required to email each MVPD by  October 1, 2020 and provide certain “baseline information” regarding their carriage election (or carriage request in the case of NCE translators). Going forward, qualified LPTV stations must only email an MVPD when seeking to change their election for the upcoming three-year cycle. Like full-power commercial TV stations, LPTV stations must send a “carbon copy” to the FCC’s must-carry notification email address, and follow-up with a telephone call to the MVPD if they do not receive a verification of receipt email from the MVPD.

If the MVPD has any questions regarding carriage, it is permitted to rely on the contact information for the station contained in the FCC’s LMS filing system. For that reason, eligible LPTV stations and educational television translators must update their contact information in LMS no later than July 31, 2020, and keep it updated thereafter.

The new rules should reduce the number of broadcasters standing in line at their local post offices in late September, but for this new system to work, broadcasters and MVPDs need to make sure that they update their contact information by July 31st, 2020, and keep it up to date thereafter.

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On April 2, 2020, the FCC established the COVID-19 Telehealth Program (Program), which will guide the disbursement of $200 million to health care providers for connected care services to their patients. We published our summary of the Program on April 3, 2020, and followed up with a discussion of the FCC’s application procedures on April 9, 2020, and a review of the first wave of proposals granted on April 16, 2020.

With the fourth tranche of proposals approved on April 29, 2020, the FCC has now granted 30 funding proposals in 16 states. The FCC has pledged to review and grant eligible proposals on a rolling basis until either the FCC runs out of funds or the national pandemic ends.

As discussed in our prior alerts, the CARES Act of 2020 provided $200 million for the FCC to distribute to eligible parties with proposals to provide connected care services in response to the COVID-19 pandemic. The funds could be used for (i) telecommunications services and broadband connectivity services, (ii) data and information services, and (iii) internet-connected devices and equipment.

While the FCC has not released for public review most of the approved proposals, based on the public notices that have been released, it is clear that the FCC is willing to provide funding for proposals to implement connected care services and devices. Most of the approved proposals requested funding for a combination of:

  • Remote patient monitoring;
  • Portable equipment for screening at remote centers and nursing homes;
  • Video services including patient visits; and
  • Connected devices (tablets) for staff and high-risk patients.

On May 1, 2020, the FCC announced that, as of May 3, 2020, all applicants must submit their applications through the online portal.

Recently, there has been a push by groups to expand the pool of eligible entities. The American Hospital Association requested that the FCC reconsider its decision to only provide funding for nonprofit applicants. Other organizations like HCA Healthcare and the American Dental Association supported the expansion of eligible entities, arguing that the COVID-19 pandemic has affected all health care providers (including dentists) and that the CARES Act did not require the nonprofit limitation. The U.S. Chamber of Commerce also supported the expansion of funding opportunities, noting that 20 percent of the nation’s hospitals are prevented from filing proposals for COVID-19 funds.

It is unclear whether the FCC will adjust its eligibility standards to include for-profit hospitals and medical practices, especially in light of the availability of funds that have yet to be allocated. We will continue to monitor the program’s progress and report any changes in the FCC’s rules.

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On March 31, 2020, the FCC adopted a Report and Order to implement the COVID-19 Telehealth Program.  The Program was established in the CARES Act, and the FCC was appropriated $200 million to provide to eligible medical facilities to provide telehealth services to their patients.

A more detailed discussion of the FCC’s Report and Order creating the Program, and a discussion of the procedures to apply for funding, can be found here and here.  The Program’s intended purpose is to provide emergency funding for expenses arising from the COVID-19 pandemic that fall outside of the normal procurement process.  Under the new program, non-profit hospitals, teaching hospitals, rural health clinics and skilled nursing facilities can apply for funds from the FCC to be used for voice and internet service, remote patient monitoring platforms, and Internet-connected devices and equipment.

The window for submitting applications opened on Monday, April 13th, and the FCC announced today that the first wave of applications had been granted.  Below is a summary of each approved funding proposal:

  • Grady Memorial Hospital in Atlanta, Georgia, was awarded $727,747 to implement telehealth video visits, virtual check-ins, remote patient monitoring, and e-visits to patient’s hospital rooms, which it said would enable it to continue to provide high quality patient care, keep patients safe in their homes, and reduce the use of personal protective equipment during the COVID-19 pandemic.
  • Hudson River HealthCare, Inc., in Peekskill, New York, was awarded $753,367 for telehealth services to expand its COVID-19 testing and treatment programs serving a large volume of low-income, uninsured, and/or underinsured patients throughout southeastern New York State, encompassing the Hudson Valley, New York City, and Long Island.
  • Mount Sinai Health System, in New York City, was awarded $312,500 to provide telehealth devices and services to geriatric and palliative patients who are at high risk for COVID-19 throughout New York City’s five boroughs.
  • Neighborhood Health Care, Inc., in Cleveland, Ohio, was awarded $244,282 to provide telemedicine, connected devices, and remote patient monitoring to patients and families impacted by COVID-19 in Cleveland’s West Side neighborhoods, targeting low-income patients with chronic conditions.
  • Ochsner Clinic Foundation, in New Orleans, Louisiana, was awarded $1,000,000 for telehealth services and devices to serve high-risk patients and vulnerable populations in Louisiana and Mississippi, to treat COVID-19 patients, and to slow the spread of the virus to others.
  • UPMC Children’s Hospital of Pittsburgh was awarded $192,500 to provide telehealth services to children who have received organ transplants and are thus immune-compromised and at high risk for COVID-19.

The FCC will continue to process applications until the earlier of (i) granting proposals for the full $200 million budgeted; or (ii) the end of the national emergency.

Even though the FCC stated that it would likely not grant proposals for more than $1 million, considering the rapid processing and approval of the first seven applications, interested parties will want to move quickly to submit their applications.

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On April 4, 2020, the White House issued an Executive Order creating the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the “Committee”). The Committee, chaired by the Attorney General, includes the Secretaries of Homeland Security and Defense, and any other executive department head so designated by the President, is seen as an attempt to formalize the long-standing “Team Telecom” review process that began in the 1990s. The Committee’s stated goal is similar to Team Telecom’s, i.e., to assist the Federal Communications Commission (“FCC”) in its public interest review of national security and law enforcement concerns that may be triggered by foreign investment in the US telecommunications sector. But there may be some notable differences. Continue reading →

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The FCC announced the opening of a new filing window to modify pending applications proposing new digital Low Power TV and TV translator service in rural areas.  This filing window will permit applicants with long-pending applications who have subsequently been displaced by the Incentive Auction and the repacking process to submit amended proposals, subject to certain conditions.

In June 2009, the FCC announced a filing window for new digital LPTV and TV translator stations to serve rural areas.  The window opened on August 25, 2009, and the plan was for the FCC to permit similar new, non-rural proposals to be filed starting on January 25, 2010.  However, at the same time that the FCC was accepting applications for new rural LPTV and TV translator stations, it was also considering the adoption of the National Broadband Plan, which, inter alia, proposed to re-purpose a portion of the UHF television spectrum.  The FCC first delayed, and then cancelled, the “non-rural” filing window, and imposed a freeze on the filing and processing of the rural proposals.

As a result, there are now a significant number of pending applications for new LPTV and TV translator stations to serve rural areas that have been frozen since 2010.  The new filing window, which will be open between December 2, 2019 and January 31, 2020, will permit applicants to submit amendments that (i) specify a new digital channel in the revised TV band and/or (ii) propose a change in transmitter site of 48 kilometers or less.  The amendments must protect full-power, Class A television and LPTV/translator stations that have been licensed or that hold valid construction permits, along with any previously-filed applications for those services.  Moreover, any amendment must continue to qualify as a rural service proposal.

After the window closes on January 31, 2020, the FCC will provide mutually-exclusive applicants the opportunity to resolve conflicting proposals through settlement or engineering amendments.  If an engineering conflict cannot be resolved, the FCC will conduct an auction.  The FCC will dismiss all pending applications that do not submit an in-core amendment during the filing window.

Given the holiday season and the short turnaround on filing amendments, applicants with long-pending applications should move quickly to find a new channel and/or tower site that will permit the FCC to process their application.

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The Federal Communications Commission released a Public Notice reminding broadcast licensees that the filing window for Broadcast Biennial Ownership Reports (FCC Form 323 and 323-E) will open on November 1, 2019.  All licensees of commercial and noncommercial AM, FM, full-power TV, Class A Television and Low Power Television stations must submit their ownership reports by January 31, 2020.

We previously reported that the FCC had modified the dates for the filing window.  At that time, the FCC explained that there would be “additional technical improvements” that required the FCC to delay the opening of the filing window.  Now, we know more about those improvements.

In particular, the FCC modified its filing system to permit parties to validate and resubmit previously-filed ownership reports, so long as those reports were submitted through the current filing system.  Further, filers will be able to copy and then make changes to information included in previously-submitted reports.  The FCC also created a new search page dedicated solely to reviewing submitted ownership reports.

As a reminder, biennial ownership reports submitted during this filing window must reflect the ownership interests associated with the facility as of October 1, 2019, even if an assignment or transfer of control was consummated after October 1, 2019.

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On October 10, 2019, the FCC announced that it will hold a full-power FM Broadcast auction for 130 new construction permits starting on April 28, 2020.  For now, the FCC is seeking comment on the procedures for the auction, although it does not propose any significant changes from past FM broadcast auctions.  In connection with the auction, the FCC also announced a filing freeze prohibiting minor change applications, petitions, or counter-proposals directly affecting or failing to protect the construction permits to be auctioned.

A majority of the construction permits will be for lower-power Class A facilities, but there are 28 new facilities that are authorized to operate at 25 kW or higher.  For example, a Class B facility in Sacramento will be available, along with stations on the outskirts of major cities like Dallas and Seattle.  Overall, Texas is home to the most available permits (32), with numerous opportunities also available in Wyoming (11), California (10), and Arizona (8).

Parties seeking to file comments regarding the list of available construction permits and/or the auction procedures should submit them by November 6, 2019.  Reply comments are due November 20, 2019.  After reviewing the record, the FCC will release the final list of available permits and auction procedures, most likely in early January 2020.

 

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The FCC’s Media Bureau today announced changes to the filing window for submitting Biennial Ownership Reports for commercial and noncommercial stations.  The opening of the filing window will be delayed from October 1, 2019 to November 1, 2019, and the window will now close on January 31, 2020, rather than the previously-announced deadline of December 1, 2019.

According to the announcement, the reason for the one-month delay in opening the filing window relates to the implementation of “additional technical improvements” to the form, which will include “burden-reducing capabilities.”  In particular, the Media Bureau indicated that filers will have the ability to pre-fill certain forms, and copy and paste already-entered information from other forms.  In light of the one-month delay in opening the window, the Media Bureau extended the deadline for filing as well, and provided additional time due to the intervening holidays.  Even though the window will not open until November 1st, the Media Bureau made clear that the “as-of” date for the information to be reported will remain October 1st.

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At its July 2019 Open Meeting this week, the FCC voted to make several changes to its Children’s Television Programming rules.  It released its final Order adopting the changes this afternoon.  Although characterized by Commissioner O’Rielly as “modest” changes, the revised rules are likely to alter television broadcasters’ compliance efforts in several significant respects, including the time at which the programming is aired, the type of programming that qualifies as educational, and how a broadcaster demonstrates compliance with the revised rules.

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Last April, the broadcast industry was abuzz with the need to register previously unlicensed earth stations in order to reduce the chance of future displacement. In April 2018, the deadline for submitting the registrations was announced, and after two extensions, all fixed-satellite service (FSS) earth stations in use prior to April 19, 2018 that operated in the 3.7 to 4.2 GHz band were to be registered with the FCC by October 31, 2018.

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