Commission tunes up its channel-sharing rules in advance of the incentive auction, with more to come.

As the incentive auction approaches – now supposedly less than a year away – the FCC continues to fine-tune various components of the sprawling auction/repack process. Most recently the Commission has turned its attention to channel sharing.

Channel sharing, of course, is one way in which the Commission hopes to encourage TV licensees to give up their current channels for sale in the auction. The idea is that any licensee willing to give up its channel but unwilling to leave the business entirely would simply share a channel with another station, thus freeing up its original channel for re-purposing. It’s as if your neighbor down the street agreed to vacate her one-acre lot with a two-story house and move into the second story of your two-story house on your one-acre lot, making the neighbor’s original property available for that nice mobile broadband family to move into. Under the Commission’s sharing approach, each sharer gets its own license and is independently responsible to the FCC for its actions, but all share a common transmitter and antenna.

The rules as initially adopted were somewhat restrictive in a number of important respects. But now, in response to petitions for reconsideration, the FCC has relaxed some of its earlier restrictions. Additionally, it has requested comments on a number of proposals for further relief.

Post-auction Sharing Agreements Permitted, With a Catch or Two.Originally, only channel-sharing agreements (CSAs) entered into prior to the incentive auction – and submitted to the Commission with the stations’ pre-auction application – would be recognized. That has changed. The Commission will now permit stations to make their deals any time up to the deadline by which pre-auction CSAs must be implemented, i.e., three months after the auction. In other words, you can enter the auction declaring your intent to share without knowing who your sharing partner will be. And if the FCC eventually adopts further proposals currently on the table, new sharing deals may be allowed any time in the future.

Sounds good? Beware of the fine print.

First, in order to take advantage of this option, a station will have to specify in its pre-auction application that it intends to channel-share. This won’t mean that station will eventually have to enter into a CSA, although if it doesn’t find a partner after the auction, it won’t be able to keep its old license and will end up with no license (because its old channel will have been disposed of in the auction). But if the pre-auction application does not include an expression of intent, the station will not be able to avail itself of a “first generation” post-auction CSA. (“First generation” CSAs are those in place at the completion of the auction process. “Second generation” CSAs are those which may be entered into later down the line, outside of the incentive auction context. See below for more discussion of those.)

Second, would-be sharers without a pre-auction CSA in place will be subject to the auction rules forbidding any communication or collaboration about a licensee’s auction strategy prior to and during the auction. Yes, such communication/collaboration will be permitted between or among sharing stations that have identified themselves (and submitted their CSAs) in their pre-auction applications. But that exception won’t apply to stations that enter the auction with no CSA in place. That means that parties entering the auction with the intent to share but without a pre-auction deal signed, sealed and delivered to the FCC won’t even be able to discuss possible deals, much negotiate them, during the auction.

On top of that, would-be sharers without a pre-auction CSA in place will in any event have to sign and implement their post-auction CSAs by the time that they are required to relinquish their channel, which will be only three months after the auction. One petitioner had argued that stations turning in their licenses should have 12 months in which to find an alternate channel to share, since the Communications Act ordinarily permits stations to remain off-the-air for up to 12 months. Nope, said the FCC, the 12-month provision applies only to stations with licenses. When an auction participant turns in its license, by definition it ceases to have a license and the 12-month option is no longer available. Plus, limiting the post-auction CSA options reduces interruption of service to the public and should “smooth the MVPD’s post-auction transition process”. And heads up: the FCC will not find and assign a sharing partner and will not guarantee that any station rolling the dice in this way will be able to find a willing sharer by the tight deadline.

CSA Limitations on Assignment of Shared Spectrum. Another aspect of the initial rules that distressed potential sharers was the FCC’s view that because each sharer’s license will be completely independent, that license could be sold at will (subject to the usual FCC approval, of course). That meant that one sharing licensee could opt to sell its piece of a channel to a third-party who might be a total stranger to the other sharing licensee. The idea of having to share with a stranger was distasteful to a lot of licensees, who argued that CSAs should be allowed to provide that non-withdrawing shares have the right to acquire a withdrawing sharer’s interest. Initially the FCC nixed this approach, saying that such a provision would constitute an unlawful right of reversion in favor of the survivor. But the FCC has changed its mind. OK, the FCC now says, we’ll let you off the hook: Sharing parties may agree on any provisions they like for disposition of the rights of a withdrawing party, including allowing the remaining party to resume use of the entire channel.

This alternative does pose its own complications, though. If a channel-sharing agreement breaks up and the full channel goes back to one of the parties, that will reduce the number of stations in the market by one, which could in turn affect the relevant multiple ownership limitations of that market. While existing ownership combinations will be grandfathered, creation of any new duopoly might be prohibited. Yes, the FCC says, that’s the way it is: multiple and cross-ownership rules still apply, and if loss of a sharer blocks a planned transaction, so be it.

On a related note, the Commission has also decided to let channel sharers agree among themselves what will happen in the event that one of the sharers loses its license by, e.g., by revocation or even voluntary cancellation. Initially the FCC had taken the position that, if one sharer’s license was revoked or otherwise terminated, that license – i.e., the right to share the use of the particular channel – would automatically go back to the FCC, which could then grant the right to some new applicant. But some commenters objected to the notion that the Commission might become a matchmaker forcing unfamiliar sharers into a shotgun marriage of sorts. On further reflection, the Commission has agreed, and will allow sharers to address this potential circumstance in their CSAs.

Flexibility of CSA Terms. The FCC has decided the channel sharing deals will not have to match the term of a CSA to the expiration date of the underlying FCC licenses (although the FCC has invited comment on whether CSAs should be subject to a minimum length of term).

No FCC Review of CSAs until AFTER the Auction – As noted above, CSAs are supposed to be entered into and submitted to the FCC prior to the auction. But the FCC now says that it won’t get around to reviewing the substantive content of any CSAs until after the auction – which gives rise to the possibility that deals may have to be re-worked post-auction if the Commission finds terms in them that raise regulatory problems. (It will review CSAs before the auction only to “to confirm that the parties qualify for the anti-collusion rule exception”.)

No problem, according to the FCC. It assures us all that it has no interest in substituting its judgment for the judgment of CSA participants “with respect to the terms of the agreement”. Any post-auction CSA review will be limited to “confirming that the CSA contains the required provisions and that any terms beyond those related to sharing of bitstream and related technical facilities comport with our general rules and policies regarding licensee agreements”. Still, sharers would be well-advised to insure that their CSAs provide for what happens if the FCC doesn’t like a term that the parties consider to be critical.

No Change of Class If Sharing Terminates. The FCC observes that commercial and noncommercial stations may share a channel, and Class A and full power stations may also share. But sharing won’t change their regulatory status apart from the fact that a Class A station sharing on a full power channel will enjoy the benefit of extra power. If a sharing deal breaks up, the noncommercial station will remain subject to noncommercial rules, even if it was sharing a channel not reserved for noncommercial use; and a Class A station will have to revert to Class A power limits even it was sharing a full-power commercial channel.

Further Items Out for Comment.

As noted above, the FCC has also posed a number of questions about further issues that will need to be addressed with respect to CSAs entered into outside the context of the spectrum auction. Generally, the Commission contemplates applying the same overall matrix of operational and licensing rules to such post-auction arrangements as will be applied to pre-auction CSAs. Those include the provisions relating to sharing arrangements between full-power and Class A stations and between commercial and noncommercial licensees. The Commission invites comments on that approach, as well as other questions, including:

Second Generation Sharers’ Construction Periods. “First Generation” CSAs – i.e., agreements entered into by auction participants – will have to be implemented within three months after the auction. But what about Second Generation CSAs involving a sharer that opted not to participate in the auction? In order to move onto somebody else’s channel pursuant to a CSA, such a second generation sharer would have to file for a construction permit to do – but should that permit, when issued, be subject to a three-year construction term (i.e., the standard shelf-life of a CP), or a three-month term?

Carriage Rights for Channel Sharers. The Spectrum Act provides that stations choosing to share a channel won’t lose any of their MVPD (cable and satellite) carriage rights. The idea is that the total number of stations with such rights won’t change, and it doesn’t matter how many or how few TV channels those stations occupy. But Second Generation CSAs give rise to the possibility that sharers might include entities that never owned a station before (and thus never had any carriage rights to begin with). Will such entities be entitled to carriage?

The FCC has tentatively concluded that a sharer will have carriage rights only if it possessed such rights through an auction-related channel sharing agreement or because it was operating on its own non-shared channel and had carriage rights immediately prior to entering into a channel sharing agreement. However, the Commission expressly invites alternate suggestions.

So the FCC has opened some new opportunities for channel sharing, though perhaps not as much as some parties would like. Sharing remains a useful idea that may be financially advantageous and otherwise attractive to some stations, but sharing is still a bit of a minefield whose topography is still shifting. Anyone contemplating some type of sharing arrangement should be careful to get maximally familiar with all the relevant rules as soon as possible.

On the agenda: Everything, um, A lot of things, er, Several things, Stuff you always wanted to know about channel sharing but were afraid to ask

If your station happens to be on the FCC’s Eligibility List for the upcoming reverse spectrum auction, listen up. The Incentive Auction Task Force and the Media Bureau are teaming up to present a one-hour webinar to go over various aspects of the channel sharing bid option. That’s the option that could let folks sell their current spectrum back to the Feds while staying in the broadcast business by bunking up with another licensee on that other licensee’s channel. (If you’ve been trapped in your sensory deprivation chamber for the last, oh, year or two and aren’t au courant about channel-sharing, check out some of our posts on the subject here.)

Channel-sharing promises to be an attractive opportunity for some broadcasters, but it’s not by any means a simple proposition. As with many aspects of the incentive auction, the Commission is venturing into previously unexplored turf here. As a result, the rules and policies that will govern the process are still a work in progress. Because of that, it would be a good idea to listen in to get updated on the latest and greatest thinking on the topic from the FCC’s Brain Trust. They’ve promised to address the revised channel sharing rules, FCC Channel Sharing Agreement requirements, the bidding process for licensees interested in channel sharing, and the post-auction licensing process. And they’ll be taking questions, too!

The party’s scheduled to run from 2:00-3:00 p.m. (ET) on Wednesday, July 22. To attend, all you’ll need is an Internet connection. Click on this link, enter your name and email address, enter the password “Fcc123” and click on “Join”. (We don’t know for sure whether the password is case sensitive; we’re showing it here as provided by the FCC.) You’ll be able to send in your questions through learn@fcc.gov. You’ll also be able to score a set of the slides off the Commission’s LEARN website.

Last month we reported on the Commission’s efforts to fine-tune its rules relative to TV channel-sharing in advance of the fast-approaching spectrum auction. Those efforts included (in the Notice of Proposed Rulemaking (NPRM) component of the item) a number of proposals as to which the FCC expressly sought comment. The NPRM has now been published in the Federal Register, so we can all get out calendars out and make a note of the comment deadlines. Comments on the new channel-sharing proposals are due by August 13, 2015, and replies are due by August 28. Both comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 12-268 and 15-137.

If you have planned your summer vacation plans around the FCC’s TV Channel Sharing Webinar that was originally scheduled for July 22, we hope you can get your deposit money back. But cheer up – now you’ve got the afternoon of July 22 free and clear! That’s because the Commission has announced that the webinar is being postponed three weeks and a day. According to a public notice released July 21 (talk about last minute), the webinar is now slated to occur on Thursday, August 13, 2015 from 3:00 pm to 4:00 pm EST.

The same topics are expected to be covered. (We described those in our earlier post about the webinar.) As a reminder, if you want to attend, just click on this link, enter your name and email address, enter the password “fcc123” and click on “Join”. (As we indicated previously, we don’t know for sure whether the password is case sensitive; we’re showing it here as provided by the FCC in the postponement notice. Heads up: When the webinar was originally scheduled, the “F” in the password was upper case.) You’ll be able to send in your questions through learn@fcc.gov. You’ll also be able to score a set of the slides off the Commission’s LEARN website.

Wireless mic users must prepare to dance a spectrum hokey-pokey to adjust to spectrum reductions, new operating rules

The Pope will visit the U.S. in late September, which is already prompting extensive preparations in many quarters. Among those readying themselves: news operations, professional wireless microphone operators and wireless mic frequency planners in several major cities where Francis is scheduled to drop by. They’ve got to figure out how many wireless mics will be needed to stage, cover and record the various events … and then they’ve got to figure out how to coordinate the spectrum necessary to make sure all those mics serve their various purposes.

Newscasters will want to be sure that they can deliver clear on-site audio feeds to audiences over whatever medium – broadcast, cable, satellite, the Internet – the audience may choose. Those who venture out to see the Pope in person will want to clearly hear his every word. And still others – historians, archivists, those who want a permanent record of some (or all) of his visit – will want to insure the availability of high-quality recordings. For the most part we have come to assume that all of these needs will be met. What we often lose sight of is the fact that event coordinators must struggle to stretch the limited spectrum available for wireless mics to accommodate the various uses.

And with two recent orders (you can find them here and here), the FCC has just make their jobs even harder in that regard.

As long-time readers know, traditionally wireless microphones operated in the TV spectrum until 2009. But since then, a series of Commission decisions (including some made at Congress’s direction in connection with the upcoming incentive auction) have reduced the spectrum options for mics. And the reductions continue: With plans to auction off 100 MHz or more of the current TV spectrum to wireless carriers – while scrunching TV stations displaced by that into the ever-shrinking portion of the spectrum reserved for TV – the FCC has decided to reduce microphone access to UHF channels even more. On the upside, though, the Commission has concurrently opened some other bands for wireless mic use.

As a result, wireless microphone users now must prepare to dance a spectrum hokey-pokey, with some new rules to follow (and new spectrum to access as soon as those new rules are adopted); other rules that will apply during transition periods; and still more rules that will take effect with the transition of new 600 MHz spectrum licensees to UHF. And when it comes to spectrum options, they won’t know exactly how much spectrum will be available to them, or where it will be located, until the incentive auction is over.

Let’s start with the good news. 

Licensed mics will be able to operate closer to co-channel TV stations by relying on a “sensing threshold” of -84 dBm (when indoors and under other conditions). Previous rules permitting co-channel operation when the TV station is at least 4 kilometers away (or after coordinating with TV licensees) will remain in effect as well.

Two UHF channels will be available for shared use by wireless mics and white space devices. The channels will consist of: (1) a “preserved white space” channel where mics will share with white space devices; and (2) the Duplex Gap between wireless uplink and downlink channels. The Gap will be divided into one 4 MHz block reserved exclusively for licensed mics and a 6 MHz block where unlicensed mics will share with white space devices. Recognizing that in some TV markets the Duplex Gap may have to be made available to a TV station, the Commission is proposing to provide a second “preserved white space” channel in those markets. This proposal will be addressed in a pending rulemaking.

Depending on various auction outcome scenarios, unlicensed mics will share with white space devices most of the guard band between television and wireless downlink spectrum and will get to use 2 MHz of the 3 MHz of spectrum in the guard bands closest to TV Channel 37.

Licensed mic users may also “reserve” spectrum otherwise shared with white space devices. This can be done on short notice and/or for specific needs, e.g., breaking news coverage or particular events (e.g., concerts, gatherings, etc.) that involve extensive mic use. But there will be a slight lag time: the licensed mic user must notify a white space database administrator and request channels for immediate use; the administrator will then have 10 minutes to notify other administrators, and all administrators will then have 20 minutes to “push” notice out to any white space devices operating in the area, advising them to clear the channels.

New spectrum will be available for licensed wireless microphone operators in 941.5-944 MHz, 952.85-956.25 MHz, and 956.45-959.85 MHz. Use of any of those bands will be subject to coordination with the local SBE coordinator. And 944-952 MHZ, previously available only to certain licensed users, will now be open to ALL licensed mics, also subject to coordination.

Also, in certain limited circumstances, wireless mics will now be able to use 1435-1525 MHz – a band currently used for communications relating to flight tests – subject to coordination with the Aerospace and Flight Test Radio Coordinating Council (that’s the test flight spectrum coordinator). Pre-operation authentication and verification confirmation will also be required to use 1435-1525 MHz, through specific procedures and requirements must be worked out. Use of this particular option will be limited to specific fixed locations, such as large venues (outdoor or indoor), where large numbers of mics (typically 100+) are needed for specified time periods, i.e. situations in which other available spectrum resources are insufficient.

And other, better bandwidth channels will be available on 169-172 MHz for Part 90 licensees, while two 25 MHz channels at the top and bottom of 6875-7125 MHz will be opened for Part 74 (and Part 78 CARS) licensees. Use of both bands will be subject to coordination.

Now the bad news.

The FCC rejected requests to “grandfather” existing equipment. As a result, a large amount of UHF microphone equipment currently owned must be tossed by 39 months after the Commission issues its “Channel Reassignment PN” placing TV stations in their new channels, an event we estimate is not likely to happen until June 2016 at the earliest. (Note two very marginal exceptions: some equipment may be modifiable, though this will be costly, and some mics may still fit within the new technical requirements.)

The FCC also rejected requests to assist a subset of professional wireless mic users protect their operations. Some such users are “unlicensed” because they use fewer than 50 microphones – think regional theaters like the Signature and Steppenwolf and orchestras even as large as the Houston and Baltimore Symphonies. Proponents had suggested a mechanism for such groups to register for protection from white space devices. The Commission declined to provide such a mechanism.

Unlicensed mics choosing to operate in the 600 MHz may operate in the Duplex Gap and guard bands, but do so, but only with 20 mW EIRP, and they must register with (and pay any required fees to) white space database administrators. They also may no longer register for protection from white space devices.

Licensed mics may only operate in 600 MHz at 20 mW EIRP in the Duplex Gap. That’s bad news because, generally, licensed mics are allowed more than 10 times that (i.e., 250 mW power).

Where does this leave the industry? 

Users must plan well-ahead to determine whether and when new equipment must be purchased, what spectrum may be available to them, and when specific operating rules go into effect. Once the incentive auction is done and the FCC makes new TV channel assignments, a 39-month transition period will begin where mics can operate in the 600 MHz Service Band, but after the transition they must vacate all of the 600 MHz Service Band except for the Duplex Gap & guard bands (licensed mics must vacate all of the 600 MHz Service Band except for 4 MHz in the Duplex Gap). Professional users that do not qualify for FCC licenses will not have access to any of the new spectrum and will need to determine how to continue to provide professional events while sharing spectrum with white space devices (from which they will no longer be able to register for protection).

On the agenda: What we know so far about the planned auction of the 600 MHz band, and what wireless carriers and other bidders interested in getting a piece of this beachfront can expect when it gets here.

There’s no denying it: the unprecedented incentive auction is barreling toward us. While many details are still up in the air, it’s clear that Chairman Wheeler is absolutely committed to getting the auction underway before the end of March, 2016. The Commission’s 156-page public notice setting out the auction’s governing procedures – released earlier this month – provides important insight into the process ahead of us. For the most part, the broadcast – a/k/a reverse – side of the auction has gotten all the headlines, but let’s not forget that Congress demanded the broadcaster spectrum reclamation in order to achieve a greater ultimate goal: to get that spectrum into the hands of wireless providers for wireless broadband use.

FHH’s own Davina Sashkin will be presenting a one-hour webinar designed to bring all interested parties up to speed on where the auction preparations stand and where they are likely to go from here. Davina, who has been working on incentive auction-related matters for more than a year, will shed light on the process as it impacts wireless license bidders. In her webinar she will be addressing:

• How the reverse and forward auction will be implemented, and how broadcast participation (or lack thereof) in the reverse auction will impact the wireless forward auction.
• The fundamentals of mobile carrier participation: Who gets to play? Who gets bidding credits? Who is a “designated entity?”
• How this auction differs from previous wireless spectrum auctions.
• What lessons can be learned from the AWS-3 auction? Is there sufficient carrier interest and available capital willing and ready to pay AWS-3 prices for this new repurposed broadcast spectrum?

The webinar (which is a production of Team Lightbulb) is now scheduled for Wednesday, September 2, 2015 at 1 p.m. (ET). You can register at this link.

Commission accepts back-up CSAs – with some caveats – and extends time to complete transition to shared facilities.

In a further effort to encourage broadcaster participation in the reverse portion of the Broadcast Incentive Auction, the FCC has both (a) clarified its policies toward “back-up” channel sharing agreements (CSAs) and (b) increased the time available for successful bidders to transition to shared facilities after the auction.

Back-up CSAs

A CSA, of course, is an arrangement pursuant to which two or three stations agree to share the 6 MHz of spectrum of one of the stations when one or more or more of the stations relinquish their spectrum in the auction. But what if all the CSA participants opt to participate in the auction – and then the FCC accepts the bids of all stations to relinquish their respective spectrum? That would leave no spectrum for any of the stations to share. That and other scenarios with similar results could discourage auction participation by licensees who wish to continue to broadcast after the auction.

Enter the “back-up CSA”.

It’s something of an insurance policy by which a party to a primary CSA agrees to share with yet another station should circumstances prevent the implementation of the primary CSA. And now the FCC has expressly clarified that it will indeed be permissible for “either or both parties [to a CSA] to also enter into a back-up CSA with one other station in the same DMA to act as the back-up host or sharer station.”

Note the limitations: unlike a primary CSA, a back-up CSA may be with only one other station, and that station has to be in the same DMA. Fox, ION, Tribune and Univision had proposed that licensees should be allowed to use “contingent multi-party CSAs across multiple markets”. The Commission, however, was not willing to go that far. It suspected that the proposal was intended to give participants in such multi-party/multi-market arrangements the ability to improperly communicate with one another about bids and bidding strategies. Such communications among reverse auction participants are strictly prohibited – but the Commission has carved out a limited exception for CSA participants, an exception which Fox et al. may have been trying to exploit.

While the FCC was not willing to allow such exploitation, it did have to acknowledge that some opportunity to communicate with participants in back-up CSAs should be allowed. Accordingly, the rule on communications concerning bids and bidding strategies now includes the following wrinkles:

the CSA exception to the prohibition against such communications applies only to communications between parties to a single CSA at any given time, and only if the CSA (or back-up CSA) was entered into and filed with the Commission by the December 18 deadline for applications;

if both stations in a primary CSA have a bidding status of “frozen—provisional winner”, then parties to a back-up CSA may communicate regarding bids and bidding strategy, BUT they must cease such communication with the party to the primary CSA.

Another problem: under the reverse auction bidding procedures, the bidding status of a “frozen—provisional winner” is not necessarily permanent; that is, it may change to “bidding in the current round” if the auction enters a subsequent stage. Should that happen, the prohibition shifts again. To illustrate:

Let’s assume that a primary CSA has ceased to be operative because the host station’s status became “frozen—provisional winner” at one stage of the auction. If either station to that primary CSA also has a back-up CSA, the host’s “frozen—provisional winner” status opens the door for the CSA participants to begin to communicate with a back-up CSA partner, if any of them has one.

But let’s then assume that, in a subsequent stage, the primary CSA’s host station’s status changes back to “bidding in the current round”. If the primary CSA expressly provides that it becomes the operative sharing agreement under such circumstances, the host may notify the sharee(s) in the primary CSA of the change in status, and the CSA exception will again apply to communications between the parties to the primary CSA rather than with the back-up host. In other words, if a host station becomes “unfrozen”, then all bets are off with the back-up CSA, the primary CSA goes back into effect, and the sharee station(s) may no longer communicate with the back-up CSA station.

Got all that? If you plan to enter into a CSA and a back-up CSA, you’d better – because we can all expect the FCC to be unforgiving should it find that its prohibition against bids/bidding strategies communications has been violated, regardless of the complexity of the rules it has contrived.

Even without this latest complication, the issue of prohibited communications is a landmine waiting to go off. The FCC has underscored its intent to enforce the prohibition rigorously, but at the same time the guidance the Commission has provided suffers from a certain degree of ambiguity and uncertainty. This is a major concern, because the consequences of being caught in a prohibited communication could be extreme: dismissal of auction applications, fines, and possibly even civil liability running well into seven figures (or more) if one party’s violation is attributed to the other party to the communication, and that other party is fined or loses its auction application. Again, anyone participating in the auction should be extremely familiar with the prohibited communications rules and should take equally extreme care to avoid any conduct that might even arguably violate those rules.

To complicate things more, the FCC seems to contemplate only two-party CSAs, with only two licensees communicating about bidding strategy. But since there is no rule confining CSAs to only two parties, application of the anti-collusion rules to three-party CSAs may become a morass not unlike like the muck in the streets of a coastal community after a hurricane.

Extended Transitional Period

In addition to providing for back-up CSAs, the FCC has decided to extend the amount of time a sharee in a CSA (whether the agreement was struck before or after the auction) will have to relinquish its pre-auction channel. Originally, a sharee had a meager three months after receipt of its reverse auction proceeds to cease operation on its original channel and move on over to the shared channel. Not a lot of time for what could turn out to be a complicated process. But now that period has been expanded to six months (again, starting as of receipt of the auction proceeds). And, recognizing that even six months might not be enough in some cases, the Commission has indicated that it will be open to granting waivers to allow up to two additional three-month terms, so long as such waivers won’t adversely affect the transition. So from the original three months, sharees will now have at least six months, and possibly even up to a year, to complete their move to the shared facilities.

Deadlines, opening bids, other procedures are now set.

The FCC’s preparations for the long-in-the-works Broadcast Incentive Auction have taken the final turn and are now barreling down the stretch. With a 300+ page Public Notice (including two appendices and an attachment) setting out the auction procedures and other important details, the Commission has filled in many of the blanks relative to when and how the elaborate auction process will work. Perhaps of more interest to many, in a separate notice it has also disclosed the opening prices which it will offer to all full-power and Class A TV stations eligible for the auction. Here are links to:

the Public Notice;

two appendices released separately (only one of which is directly relevant to the reverse component of the auction – it lists baseline coverage (areas/pops) for DTV stations; the other appendix lists information relevant primarily to the forward auction – but note that this post is limited to matters relating to the reverse auction); and

a public notice accompanying a separate listing of the reverse auction opening bids for all eligible TV (full-power and Class A) stations. In addition, here’s a link to a separate, possibly more useful, version of that list, set up in spreadsheet form prepared by our friends at Cavell, Mertz & Associates. (Their version is fully searchable and includes links to a database providing specifics about each station’s facilities.)

The auction is technically set to begin in late March, 2016, BUT these latest releases make clear that broadcasters considering participation in the reverse auction must begin to plan NOW, as the filing Form 177 – that’s the application to participate in the reverse auction – must be filed no later than 6:00 p.m. (ET) on December 18, 2015.

The materials linked above are chock-a-block full of detailed information. We recommend that anyone considering participation in the reverse auction review them all carefully. For now, here are just a few of the highlights:

• The ticket into the auction is FCC Form 177. The window for filing these forms will run from 12 Noon (ET) on December 1, 2015 through (as noted above) 6:00 p.m. (ET) on December 18. The form requires disclosure of: the licensee’s name; the owners of 10% or more of the licensee; the names of up to three people authorized to bid on the licensee’s behalf; and certification that the licensee understands and will comply with the auction rules. The applicant must also identify all of the bidding options (see below) it wishes to be considered for once the reverse auction starts, and channel sharing agreements (CSAs) (or intent to enter into a CSA) must be disclosed. Class A TV licensees are also required to certify continued compliance with the statutory eligibility requirements for Class A status. Noncommercial educational stations must also indicate whether they operate on a reserved or non-reserved channel. NOTE: A licensee holding licenses for multiple eligible stations may include all of its stations in a single application.
• The bidding options available to eligible licensees are: (1) go off-air (an option available to all stations); or (2) move to a Low-VHF channel (available to UHF or High-VHF stations); or (3) move to a High-VHF channel (available only to UHF stations). An applicant will not be obligated to bid for all of the options selected in its December Form 177 filing once the auction cranks up, BUT buy-out options not listed on the December filing will be off the table.
• Applicants will have until 6 p.m. (ET) on March 29, 2016 to make their final commitment relative to which option they will take in the first round. This deadline is crucial. In the Commission’s words, this commitment “will constitute an irrevocable offer by the applicant to relinquish the relevant spectrum usage rights in exchange for the opening price offer for that bid option.” (We added the emphasis on “irrevocable” there because it deserves your attention.) In other words, as of the March 29 deadline, broadcasters participating in the auction MUST designate the option that they will take in the first round. If the broadcasters elects to go off the air at the opening bid price, that will be its initial bid; the bid can change in subsequent rounds based on the different options the broadcaster elected on the initial form, but the first round will be limited to only one bid option.
• Where a CSA has already been reached, it must be submitted along with the Form 177, in full and with no redactions. Any applicant intending to enter into such agreements after the auction must do so before the date it is required to relinquish its license. Parties entering into CSAs are also required to certify that, among other things, the resulting arrangement will comply with multiple ownership rules, will not result in a change to the Designated Market Area, and will satisfy community of license coverage requirements.
• After the initial Form 177 filing deadline, only minor amendments will be permitted. In this context, “minor” changes include things like deletion or addition of authorized bidders, revision of addresses and telephone numbers of the applicant, its responsible party, and its contact person. Such amendments to update information in the application must be made promptly (i.e., within five days) after the applicants learns of the need to file the amendment.
• “Major” amendments will not be permitted after the Form 177 deadline. Such verboten amendments include: adding or removing a license identified for relinquishment; changing the relinquishment option for a particular license; certain changes in ownership that would constitute an assignment or transfer of control of the applicant; changing any of the required certifications or the certifying official; adding a new CSA or changing a party to a CSA; or a change in the applicant’s legal classification that results in a change in control.
• The FCC is waiving its “Red Light Rule”, meaning that applicants indebted to the FCC will be allowed to participate in the auction. The hitch: an applicant already subject to a “Red Light” restriction must acknowledge its obligation to pay past and future debts along with accrued interest, penalties, and costs, and must further agree to permit the FCC to deduct such amounts from their share of auction proceeds.
• After the December 18 Form 177 deadline comes and goes, FCC staff will send a confidential letter to the contact person listed on each applicant’s Form 177. The letter will identify – with respect to each station included in the application – whether the application (1) is complete, (2) has been rejected, or (3) is incomplete or deficient because of minor defects that may be corrected. The letter will include the deadline for resubmitting corrected applications; applications not corrected by that deadline will be dismissed with no opportunity for resubmission. The FCC’s letter will also inform the applicant of any potential FCC liabilities with respect to a particular station that cannot be resolved before the reverse auction.
• Once all the final option commitments are filed (no later than March 29, 2016), the Commission will run all the information through its computers and calculate what its “initial clearing target” is going to be. The “clearing target” is the amount of TV spectrum to be freed up through the reverse auction. The clearing target will determine which broadcasters’ commitments will be accepted and which won’t. In other words, it’s at least possible that some, perhaps many, broadcasters will be advised that they will not be able to participate further in the auction process. (That could occur if, for example: (1) a broadcaster’s commitment option could not be accommodated as a result of the clearing target, or (2) the FCC determines that a particular TV station’s spectrum isn’t needed to meet the clearing target.)
• Of course, the Commission expects that all applicants will perform due diligence research and analysis before applying to participate in the auction.

Anyone contemplating participation in the reverse auction should be especially aware that the opening bids listed by the Commission are just that, opening bids. Many observers anticipate that the bids will shrink, perhaps dramatically (i.e., by half, or even more), before the bidding ends. While some stations on some channels in some markets may not encounter such shrinkage, they will likely be in a slim minority. In other words, would-be participants should be prepared to deal with eventual bids well below the tempting numbers dangled by the Commission to encourage participation.

One more note: The Commission will be conducting mock auctions to permit reverse auction participants to get an idea of what the process entails. Those auctions have not yet been scheduled. Applicants who qualify to participate in the reverse auction will be advised (by confidential letter) of the date of the mock auction to which they have been assigned once the FCC has established the initial clearing target has been announced. That announcement is expected to happen sometime in late April, 2016. Because the reverse auction process is going to be something outside of everybody’s experience, we strongly recommend that anyone assigned to a mock auction take advantage of that opportunity. We cannot emphasize enough that the auction design is brand new and, as yet, untried by anybody. While the FCC has reportedly made extensive efforts to simplify the auction mechanics, whether or not those efforts have been successful remains to be seen. The best way – and, perhaps, the only way – to check that out will be to participate in the mock auction.

To re-state the obvious, we are highlighting only a small portion of the extensive content of the materials released by the Commission. Broadcasters interested in participating in the auction are advised to carefully review the Public Notice and accompanying documents to ensure sufficient preparation for the upcoming deadline.

Further evidence that the Broadcasting Incentive Auction is ramping up, and fast: the Commission has announced that it will be conducting a three-hour workshop devoted to the reverse auction process on November 17, 2015 from 10:00 a.m. to 1:00 p.m. Representatives of the Incentive Auction Task Force, the Wireless Bureau and the Media Bureau will take attendees through a wide range of useful auction information covering the “pre-auction process and guidance on how to complete and submit the Form 177, including an overview of ownership requirements, channel sharing agreements, and the red light rule”. Exactly how they plan to cram all that into three short hours isn’t clear, but what the heck.

The confab is going to be held in the Commission Meeting Room at the Portals in D.C. It’s free, but seating will be limited, so you might want to get there early. The Commission recommends that you shoot to arrive at least 30 minutes prior to the start time “to allow time to go through the security process for admission to FCC Headquarters” – but we suggest that you allow even more time than that. You can streamline the check-in process by pre-registering (submit your name and company affiliation to auction1001@fcc.gov, with the subject line “Reverse Auction Workshop”).

Can’t make it to Washington that day? No problem – the workshop will be live-streamed at www.fcc.gov/live. Remote attendees will be able to email questions in through auction1001@fcc.gov. The gig will also be recorded for later viewing on the FCC’s website.

The Incentive Auction is going to be an extraordinarily complex undertaking, with lots of moving parts. Any broadcaster planning on participating in the reverse auction component would be extremely well-advised to attend the workshop – and be prepared to take good notes.

Just two weeks after its release by the Commission, the sprawling Public Notice setting out the details of how the Broadcast Incentive Auction is to be conducted has been published in the Federal Register. (We provided an overview of the notice here.) This triggers the 30-day period during which affected parties can seek reconsideration (by the delegated authorities responsible for the Notice – in this case, presumably the Wireless and Media Bureaus) or review (by the full Commission). Anyone so inclined has until November 30, 2015 to get their pleadings in – but, in view of the juggernaut nature of the auction process at this point, it would probably be best not to hold out too much hope of success.

Interestingly, the Federal Register version of the Notice (as opposed to the version released by the FCC) states that “[t]his document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995.” Normally, when our old friend the PRA rears its ugly head like this, the information collection requirements in question have to be sent over to the Office of Management and Budget for its review and approval. However, in this instance, the Notice provides no indication of what new or modified information collections may be involved (although we’re guessing that Form 177 may be at least a partial answer), and it similarly offers no indication that anything will be subject to OMB review.

Frankly, we’re not sure what to make of that. It is, after all, the FCC’s burden to jump through the PRA’s various hoops before imposing new or modified information collections, and a failure by the FCC to do so prevents the Commission from penalizing anybody who does not comply with those information collections. We doubt that this will eventually interfere with the timely roll-out of the auction as described in the Notice, but we mention it here for the record.

But what happened to the First Order on Recon?

its break-neck pace with respect to all things Broadcast Incentive Auction, the Commission has published its most recent order on channel sharing in the Federal Register. (We reported on that order when it was first released by the FCC just last week.). As a result of its appearance in the Register, that order will take effect on December 2, 2015, just in time for the opening of the Form 177 window.

Technically, the order is titled “Second Order on Reconsideration”. The Commission may be getting a bit ahead of itself, though, because the “First Order on Reconsideration” in the same proceeding was issued last June, but appears not to have made it into the Federal Register yet, so it still hasn’t taken effect. (No worries, though – we have it on excellent authority that that First Order will finally show up in tomorrow’s Register.)

As attentive readers have ideally come to appreciate, publication in the Register establishes not only the effective date of new or modified rules, but also the deadlines for seeking reconsideration and/or review of those rules. Anyone planning on asking the FCC to re-think its October, 2015 decision on channel sharing should get the petition for reconsideration on file no later than December 2. If, on the other hand, you’re inclined to seek judicial review of the order, you’ve got until January 4 … unless you have your heart set on getting your appeal heard in a particular Circuit, in which case you’d best get your petition for review filed by November 12 – and then be sure to follow-up with the steps required if you want to be eligible for the judicial lottery procedure, should that come into play.

As we reported last Friday (i.e., October 30), the FCC has asked the Office of Management and Budget to approve new Form 177, the form that broadcasters intending to participate in the reverse auction will have to file no later than 6:00 p.m. (ET) on December 18, 2015. Also as we indicated there, the FCC is looking for hyper-accelerated treatment by OMB, with the usual (and statutorily-mandated) 90-day-plus comment opportunity whittled to a mere 14 days – with OMB approval to issue just five days later.

And also as we mentioned, while the FCC’s Federal Register notice alerting us (albeit somewhat obliquely) to all this said that a copy of the draft Form 177 would be available on the OMB website, that turned out not to be the case at all on Friday – or on Saturday morning, either.

But mirabile dictu! Bright and early this morning the Form turned up on the OMB website – along with two related certification forms that will also come into play during the reverse auction window.

Since the delayed availability of the draft forms has effectively pared three days from the already abbreviated 14-day comment period, we here in the CommLawBlog bunker figure that, as a public service, we ought to provide our readers easy access to the forms. So here you go. Click here to view the screen shots of Form 177; click here to view the draft certification to be filed by full-power TV stations planning to channel-share; and click here to view the draft certification for Class A stations planning to channel-share.

Instructions on how to submit comments on any or all of these were set out in Friday’s Federal Register notice – but, given the rush-rush status of things, you should probably not expect much deliberation about any comments you may choose to submit.

As we reported yesterday, the Commission’s late-October “Second Order on Reconsideration” with respect to its channel sharing rules was published in the Federal Register on November 2, even though its predecessor, last June’s “First Order on Reconsideration” in the same matter, still hadn’t graced the Register’s pages. Whether that occurred by oversight or design, that was fixed yesterday as well: the First Recon Order has now been formally published. This sets: the effective date (December 2, 2015) of the First Order, except for §§1.2204(c)(4) and 73.3700(b)(1), which have to be OK’d by OMB before they can take effect; the deadline for petitions for reconsideration (also December 2) of the First Order; and the deadline for petitions for review (January 4, 2016) addressed to the Federal Circuit court of your choice. (As we reminded readers yesterday, any would-be appellant looking for a ping pong ball in the judicial lottery, if such a lottery is needed, should be sure to comply with the relevant procedures, which require, among other things, that the petition for review be filed by November 12.)

Changes in baseline coverage data for several stations leads to scheduling changes for all.

If you’re a TV licensee planning to participate in the upcoming reverse auction component of the Broadcast Incentive Auction, it’s time to get your calendar out … again. The FCC has announced changes to the all-important deadline for filing your Form 177, which will be your ticket to a seat in the auction.

As we reported last month, the initial window for filing Form 177 was set to be open from December 1 through 6:00 p.m. (ET) on December 18. No longer. According to a public notice issued by the Incentive Auction Task Force, the window has been moved and extended. So mark your calendars: Form 177 must be filed sometime between 12 Noon (ET), December 8, 2015 and 6:00 p.m. (ET), January 12, 2016.

The reason for the change? After the release of its initial calculations of the coverage areas and populations of all stations eligible for protection in the auction, the Task Force determined that some tweaking of those calculations was called for. Not much tweaking, to be sure: the numbers for a total of six stations changed, and one former Class A station downgraded to LPTV status. Still, jiggering with the coverage numbers causes changes to the opening bids for each of the affected stations. Since the Commission wants all potential reverse auction participants to have at least 60 days between (a) knowing their respective opening bids and (b) the closing of the Form 177 window, and since the new figures were released on November 12, the window is now being left open until January 12. The originally-announced March 29, 2016 start date for the auction remains unchanged.

So if you were making your end-of-year vacation plans on the assumption that your Form 177 would already be filed before the parties started, think again. While you can still get it filed before Christmas, Hannukah and/or Kwanzaa, you won’t have to commit yourself for good until well after New Year’s Day. That being the case, you may want to hold off on any seasonal celebrations until, say, Martin Luther King Day.

Note that, according to the public notice, you can mark these new window dates with an indelible Sharpie, since they won’t be changing again. While the Commission may still alter the values in its baseline data (including areas and pops calculations) up until the commencement of the auction itself, such changes will not necessarily involve changes in opening bids. Here, however, the Task Force figured that tweaking the opening bid prices and giving all potential participants a full 60 days to contemplate the adjusted prices would be conducive to maximizing participation without delaying the auction. But it expressly advises that it does “not anticipate recalculating prices again in the event that additional revisions to the baseline data are necessary.”

If you want to take a look at the revised areas and pops figures, click here. If you want to see the listing of revised opening bids, click here.

If you have any thoughts about participating in the reverse auction, check this out: the Commission has announced that its on-line tutorial on the pre-auction process will be up and running on November 20, 2015. It’ll cover pre-auction procedures, auction conduct and the bidding system, and will provide guidance on how to complete reverse auction applications. You’ll be able to navigate the tutorial at your leisure and search for specific topics; you’ll also get links to auction-specific Commission materials, contact information for FCC auction staff, and screen shots of the online application and bidding system. All you’ll need will be a browser with Adobe Flash Player. You should be able to find the tutorial through the Auction 1001 web page on the FCC’s site – go to the “Education” tab and select the “Auction Tutorial” from the options.

As we have said before, the Broadcast Incentive Auction is an ambitious, innovative process. It’s new to the FCC, and it’s new to the rest of us. Would-be bidders should take advantage of any and all information that might help get them properly oriented. In this case, it would probably be an excellent idea to thoroughly work through the tutorial before the workshop, and then to attend the previously-announced reverse auction workshop to make sure you have a solid handle on things.

Meanwhile, an update on that workshop. Last month we reported that the workshop would be held on November 17 … but that was back when the window for filing Form 177 (the ticket into the reverse auction) was set to close on December 18. Since then, of course, the Form 177 window has been re-set to remain open until January 12, 2016. And now the workshop has been re-scheduled to December 8, 2015 from 10:00 a.m. – 1:00 p.m. The details we previously reported will still apply: same place (Commission Meeting Room in D.C.); same pre-registration process (submit name and company affiliation to auction1001@fcc.gov, with the subject line “Reverse Auction Workshop”); same remote access (live-streamed at www.fcc.gov/live). If you had already pre-registered for the original date, no worries: you’re in, and you don’t need to re-up for the new date.

Back in August we reported on a Report and Order (R&O) adopting a range of new rules governing wireless microphones, rules aimed at accommodating wireless mic use both during and after the upcoming re-packing of the TV spectrum. That R&O has now been published in the Federal Register. As a result, we now know that most (but not all) of the new rules will take effect on December 17, 2015. (The revisions to two sections – §§15.37(k) and 74.851(l) – will not be kicking on that date. They’re “information collections” that require further review and approval from the Office of Management and Budget, thanks to the hilariously-named Paperwork Reduction Act.)

The Federal Register publication also starts a couple of other clocks running: anyone inclined to ask the Commission to reconsider all or part of the R&O has until December 17 to get a petition for reconsideration on file; and anyone bent on seeking judicial review has until January 18, 2016, to get a petition for review on file with the federal court of appeals of their choice. (Note, however, that any would-be appellant with his or her heart set on being heard by a particular circuit should probably (a) file by November 27 and then (b) follow the steps necessary to get into the judicial lottery, should one be necessary.)

The FCC is trying to make good on its promise to let auction participants know what’s in store for them on the auction application front (and the reimbursement front, too – but that’s for a later post). Now it’s up to broadcasters to take advantage of what the FCC has given them. 

As the Broadcast Incentive auction continues its unstoppable advance, the Commission has begun to address the nitty-gritty practical steps that folks affected by the auction – whether auction participants or broadcasters who will be relocated as a result of the auction – will have to be taking. Most notably, the FCC has released: (1) an extensive set of instructions for Form 177, which is the form that broadcasters will have to file if they intend to participate in the Reverse Auction component of the process; (2) an online tutorial with additional Form 177 guidance; and (3) Form 2100, Schedule 399, which broadcasters seeking reimbursement of relocation costs will have to file if they want to tap into the cash the government will be doling out after the auction.

Attention, TV licensees: this is all required reading for anyone who wants to be properly prepared for the auction and its aftermath. We’ll walk you through the high points on Form 177 now; check back here for a follow-up on Schedule 399.

As we all know by now, Form 177 is the first step in Reverse Auction participation. Any eligible TV licensee planning on wielding a bidding paddle will have to file a Form 177 before January 12, 2016. The form itself still hasn’t been officially released by the Commission, but we have tracked down a copy of the screens that will comprise the application. We posted a link to those slides, with the caveat that they had not yet been approved by the Office of Management and Budget. Update: the slides have now been given OMB’s blessing (as of November 19, the date by which the FCC had asked OMB to act).

But those slides don’t include any specific instructions. No problem – the Commission has separately released a set of detailed instructions … but without the accompanying form. This seems counterintuitive: wouldn’t it make more sense to provide instructions and application as a package, so that they could be reviewed in tandem? You bet – and that’s where we in the CommLawBlog bunker come in. We have prepared a mash-up of the Form 177 slides and the later-released instructions and we have inserted links in the instructions to the applicable slides. So while you review the instructions, you can easily click back and forth to the form itself to get a solid idea of what the instructions are talking about.

We strongly recommend that any would-be Reverse Auction participant take the time to get very familiar with both the instructions and the form well in advance of the January 12 filing deadline. It will be essential that the form be completed fully and properly. With millions, tens of millions, or even hundreds of millions of dollars on the line, common sense dictates that participants should be maximally careful with their Form 177’s – and such caution naturally entails getting up close and personal with the form (and its instructions) as soon as possible.

To help with that, the Commission has also posted a Form 177 tutorial on its website. This, too, is a must-view. It’ll take you about 63 minutes just to review the whole shebang once through, but you’ll probably want to do more than that. The show is set up for repeated viewings: you can re-review each separate screen as often as you want; you can search the whole tutorial for specific terms; you can choose to listen to the audio explanation of each slide or you can follow along with the script of that explanation; you can navigate through the slides as you wish. It’s user-friendly. (The only arguable downside: the regrettably grating monotone of the audio voice gets old pretty fast. It’s sort of like Sister Mary Elephant, without the funny parts. But given the material the narrator was given to work with, she deserves kudos for making it all the way through.)

So how to process this veritable cornucopia of useful information? We all have different learning styles, of course, but it might make sense to go through the instructions and slides first, so that you have a detailed familiarity with the form, the questions asked and the FCC’s expectations with respect to each of those questions. Then, armed with that knowledge, sit down with the tutorial, making sure that the understanding you have gained from your review of the form/instructions matches up with the tutorial’s directions.

If, after all that, you still have questions, be sure to sit in on the Reverse Auction workshop the FCC will be presenting on December 8. And if you still have questions, you can check with your counsel or you can reach out to the FCC’s auction staff directly – the Commission encourages such queries, and has repeatedly provided contact information for its auction staff. (Example: Slide 29 of the tutorial provides direct-dial numbers of staffers.)

So Reverse Auction participants now have a homework project for the Thanksgiving break. (You weren’t planning on lollygagging over the holiday, were you?) Review the extensive information the FCC has provided and get familiar – very familiar – with it. It might even be a good idea to use the available slides to mock up your own application; that might help avoid any unpleasant surprises once you start to complete the form for real. There will be one, and only one, pass/fail test on the material, and that will occur when the Reverse Auction window opens and closes.

The Broadcast Incentive Auction reimbursement process begins to take shape.

We have reported on the FCC’s efforts to alert all would-be reverse auction participants to the ins and outs of Form 177. A less immediate, but no less important, learning opportunity involves the relocation reimbursement process. Since that won’t kick in until the auction is over, we all have a few months to get our arms around it. But now that the FCC has released its “final” form for seeking reimbursement, we may as well add “Review Schedule 399” to our to-do list.

Note that, while the Commission describes the currently available version of Schedule 399 as the “final” version, that version apparently hasn’t yet even been submitted to, much less approved by, OMB. Additionally, the FCC has indicated that it has yet to “finalize development of the on-line Form” and that it will “take into consideration the practical suggestions offered by commenters to enhance the functionality of the Form”. So there may still be some changes to come. But we can probably assume with some confidence that the main substantive portions of the form won’t be changing much, if at all.

The substantive portions consist, in effect, of a catalog of expenses that TV licensees and MVPDs will most commonly encounter as a result of the post-auction spectrum repack. The list is not spelled out in simple list form, however; rather, it’s “embedded” in the form. That means that you have to work your way through the form to determine which expenses are to be reimbursed and what information will be necessary to support a request for reimbursement in each category. The catalog is not necessarily exhaustive: each cost category includes an “other” entry so that each reimbursement applicant can include specific expenses not otherwise specified in the form.

Any station likely to be re-packed will eventually have to master the ins and outs of Schedule 399, but for now that’s not an urgent project. At this point stations don’t know exactly how the repack process will ultimately affect them, and until they do, they won’t know what their likely expenses will be. Still, a quick look-see through the form now wouldn’t hurt.

In connection with the release of Schedule 399, the Commission has announced an interesting and potentially important change in plans with respect to the reimbursement process. Initially the Commission had planned to use the U.S. Treasury’s Automated Standard Application for Payments (ASAP) system to get the money into the hands of stations seeking reimbursement. But that’s changed. Now the FCC plans to write the checks itself “via the agency’s internal vendor payment system”. The Commission figures that bringing this process in-house will be more efficient, easier and less expensive. And there’s an upside for broadcasters, too: they won’t need to enroll in Treasury’s ASAP system to get reimbursed. (The Commission is developing a “user portal” that will let reimbursement applicants to track their expense reimbursement history, as they would in the ASAP system.)

Applicants will be submitting reimbursement requests through the FCC’s LMS filing system. Requests will be filed on an ongoing basis as costs are incurred, i.e., not just at the beginning and end of the reimbursement period. Requests can be presented on an invoice-by-invoice basis, in which case the FCC will pay the vendor directly. Alternatively, applicants can pay expenses themselves and submit groups of claims in batches, in which case the FCC will reimburse the applicant for its out-of-pocket payments.

We still have a ways to go before the auction and the repack, but they are both coming for sure, and they will both entail elaborate and complicated chores for participants. To its credit, the Commission has repeatedly acknowledged this and it has promised both to design its systems to be as user-friendly as possible and to provide as much information about those systems to would-be participants as early as possible, to minimize any surprises. The materials described above are part of that effort. The Commission is clearly trying to make good on its promise. Potential auction and repack participants would be well-advised to take advantage of the FCC’s efforts.

Federal Register publication starts clock on petitions for reconsideration, applications for review; Final version of form, listing of dollar values still in the works

Last week we reported on the release of the FCC’s “final” version of Form 2100, Schedule 399, which is the form that will be used by repacked TV licensees to seek reimbursement for their relocation costs. The public notice announcing that release has now been published in the Federal Register, making the adoption of the form and the related policies described in the notice effective as of November 30, 2015. As a result, if you happen to be inclined to ask the Media Bureau to reconsider anything in the notice, or if you’re thinking about asking the full Commission to review the Bureau’s handiwork in one or more respects, you’ve got until December 30, 2015 to get your petition for reconsideration or application for review on file.

As we mentioned in our previous post about Form 2100, Schedule 399, the release of the form does not necessarily mean that that form is yet in its absolute cast-in-stone final state. It still must be reviewed and approved by the Office of Management and Budget, and the Bureau has suggested that at least some tweaking might occur along the way. But if there’s anything in the version of the form as described in the Bureau’s notice that raises any questions, now is the time to try to get those questions resolved.

Note also that Form 2100, Schedule 399, provides only a catalog of the types of expenses for which the Commission expects to provide reimbursement. The dollar figures that the FCC expects to associate with each of those expense types have not yet been announced.

Making things official, the FCC has announced that the Office of Management and Budget formally approved FCC Form 177 on November 19. And with the publication of that announcement in the Federal Register, the form is now “effective”. Form 177, of course, is the form that TV owners planning on participating in the reverse auction will have to file by January 12, 2016. Also effective as of December 2, 2015, are a handful of auction-related rules adopted last August, namely §§1.2204(a), (c), (d)(3), and (d)(5) and 73.3700(h)(4) and (6).

Of course, regular CommLawBlog visitors knew about OMB’s approval of Form 177 ten days ago, so this isn’t much of a surprise. Still, it’s yet another indication of the inexorable advance of the auction process. (For more information about Form 177 and steps you can take to get familiar with it, check out this post.)