CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 09:23:20 -0400 60 hourly 1 FCC Expands Use of Electronic Filing to Common Carrier and Pole Attachment Complaints Fri, 14 Nov 2014 09:16:45 -0500 On November 12, 2014, the Federal Communications Commission (FCC) announced the implementation of electronic filing procedures for common carrier complaints and pole attachment complaints under Sections 208 and 224, respectively, of the Communications Act.

Literally years in the making, the change constitutes the FCC’s latest step in expanding electronic docketing and filing as well as electronic notification regarding developments in open proceedings. The new procedures increase the accessibility of documents to members of the public by making Section 208 and Section 224-related filings available for review online through the FCC’s Electronic Comment Filing System.

Under the previous rules, the FCC required that all complaints under Sections 208 and 224 be submitted in hard copy. Until now, members of the public could only obtain copies of such pleadings upon request to the FCC Reference Information Center. This order brings these enforcement proceedings on a par with the filing procedures that have been in place in rulemaking dockets for years.

Electronic filing will not become mandatory until 30 days after the order is published in the Federal Register. However, parties will be permitted (but not required) to file documents electronically within ten days. FCC staff will assign new docket numbers to pending complaints filed prior to the Order and notify all parties of their respective proceedings’ new ECFS numbers.

Formal complaints in these dockets have become less common as a result of high up-front costs of pursuit. The adoption of electronic filing will not alter the basic rules (and thus the principal cost) of complaints, but it will make it easier for participants and interested parties to follow the proceedings that are pending. This should provide better insight into the status of each pending case and assist in placing decisions in context.

The old rules also contained outdated provisions – such as the requirement to serve documents via facsimile and requirements to file proposed orders with motions – which the Commission has now eliminated.

D.C. Circuit Sends a Strong Signal in NAB Case – Public Notices May Not Be Reviewable Thu, 02 Oct 2014 17:04:46 -0400 In May of this year, the National Association of Broadcasters (NAB) petitioned the D.C. Circuit to review a Public Notice issued by the Media Bureau. The Public Notice, entitled “Processing of Broadcast Television Applications Proposing Sharing Arrangements and Contingent Interests,” explained a shift in how the Bureau will review certain broadcast license assignments and transfer applications. According to the Notice, transactions where two or more broadcasters in the same market plan to enter sharing agreements or create contingent financial interests will be reviewed with “careful” Commission scrutiny, a seemingly higher standard than the Bureau previously used for these types of transactions.

NAB argued that the Bureau does not have the authority to change the level of scrutiny for broadcast transactions that were otherwise “presumptively valid” under the Commission’s existing media ownership rules. The Association viewed the Public Notice as a “de facto” rule, effectively imposing new regulations without following the proper notice and comment requirements. NAB believed that the Media Bureau exceeded its delegated authority in issuing the Public Notice and that the Notice was “arbitrary, capricious, and an abuse of discretion,” violating the Administrative Procedure Act.

On September 9, the D.C. Circuit granted the FCC's motion to dismiss, finding that the Court did not have the authority to review the Media Bureau’s Public Notice. The Court agreed with the FCC, stating that the Court only has the jurisdiction to review a “final agency order” and that the Public Notice in question was not a final agency order. Moreover, the Court pointed to a “clear statutory requirement” that the FCC must review a decision by its staff before that decision (or the underlying action) is reviewable by the Court.

Prior to filing its petition, NAB wrote two letters to the FCC’s Secretary, outlining why the Association disagreed with the FCC’s Public Notice. One of the letters ended with a “respectful request” that the “Commission direct the Bureau to withdraw the Public Notice and immediately cease and desist application of the strict scrutiny standard to sharing arrangements that involve contingent interests.” Despite this request, the Court found that the Association’s letter was not the “functional equivalent” of an application for review. To properly obtain judicial review, NAB should have filed a formal application for review with the FCC and waited for the Commission to rule on the application. The outcome of that ruling would then constitute a “final order,” reviewable by the Court.

In its original petition for review, NAB stated that it would be futile to petition the FCC regarding a Public Notice because by virtue of being published, the Notice was implicitly approved by the Commission. The D.C. Circuit did not buy this argument and required more concrete evidence to support NAB’s claim of “futility.”

The Court’s decision sends a strong signal to all parties before regulatory agencies, especially those in front of the FCC. Now, it is clear that if a party disagrees with an agency’s position in a Public Notice, it must file a formal petition for review by the Commission. Only then, will the Court find it has the jurisdiction to review the agency’s action and possibly the underlying Notice. Applications for review must be filed within 30 days of a Public Notice and according to the FCC, the party's application should explicitly state that the petitioner is submitting an application for review pursuant to 47 C.F.R. § 1.115.

Annual FCC Regulatory Fees Due September 13, 2012 Thu, 16 Aug 2012 15:57:04 -0400 As is customary every year, the FCC recently announced the due date for its annual FCC regulatory fees. Regulatory fees must be paid no later than 11:59 PM on September 13, 2012, Eastern Daylight Time. Most federal licensees and other regulated entities must pay these regulatory fees to offset costs associated with the FCC's enforcement, public service, international, policy, and rulemaking activities. Fee amounts change each year and vary by type of activity. Of particular interest is the Interstate Telecommunications Service Provider Fee which must be paid by most companies, including VoIP providers and audio bridging providers. Fees not paid by the due date are subject to a mandatory 25% late payment penalty.

Please reference the Kelley Drye client advisory for more information. Fact sheets detailing the types of fees, fee codes and payment methods and options can be found on the FCC's website.