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Demystifying Primary Jurisdiction Referrals

Posted July 29th, 2010 by Richard Welch

Most people who work in the area of communications law and policy have heard the term “primary jurisdiction referral.”  But myths and misconceptions abound, and they are shared by litigants, lawyers, and even judges.  This post is intended to clear up some of the confusion.

In the communications law context, a primary jurisdiction referral typically occurs when private litigants raise an issue in court (most often a federal district court) that involves a contested interpretation of the Communications Act, the FCC’s rules, or an FCC order – in other words, a dispute over an issue that the Commission has the congressionally delegated authority to resolve.  In most instances, the dispute also lies within the court’s subject matter jurisdiction.  Nevertheless, the court, recognizing that the FCC also has jurisdiction over the matter and may be better suited to answer the particular issue in the first instance, may elect to invoke the doctrine of primary jurisdiction and stay its hand to permit the FCC to decide the issue.

Here is where the confusion begins.  The term “primary jurisdiction referral” is a misnomer – the court refers nothing to the FCC.  Rather, the court will stay – that is, suspend action on – the judicial proceeding (or dismiss the case without prejudice) and direct the litigants to initiate an administrative proceeding before the FCC seeking resolution of the particular issue.  Thus, the parties to the litigation – not the court – must take affirmative steps to effectuate a primary jurisdiction “referral” to the FCC.

What action must the parties take once the court has invoked the primary jurisdiction doctrine?  What pleadings must they file at the FCC?  Many – perhaps most – primary jurisdiction referrals involve allegations of unlawful conduct by common carriers.  In such circumstances, we strongly encourage the parties to contact the Market Disputes Resolution Division of the FCC’s Enforcement Bureau at (202) 418-7330 prior to filing any pleadings with the agency.  See Public Notice, Primary Jurisdiction Referrals Involving Common Carriers, 15 FCC Rcd 22,449 (2000).  The staff of that division can discuss the issues with you and provide advice on whether the referral is best effectuated by filing a complaint against a common carrier under section 208 of the Communications Act, or a petition for declaratory ruling to terminate a controversy or remove uncertainty under section 1.2 of the FCC’s rules.

After the Commission has issued an order addressing the issue(s) involved, what happens next?  Contrary to what one might think, the case does not return to the “referring” court to review the FCC’s decision.  The federal circuit courts of appeals have exclusive jurisdiction to review final FCC orders – even one resulting from a primary jurisdiction referral.  Accordingly, an aggrieved party may seek review of the FCC’s decision only in a federal circuit court of appeals.  Thus, even if the case does return to the “referring” court for further proceedings in the original litigation, that court has no jurisdiction to review the lawfulness of the FCC’s order and must take the FCC’s decision on the specific issue(s) involved as a binding statement of law.

Primary jurisdiction referrals to the FCC can be a useful tool in private litigation, and they can allow the agency to clarify unclear areas of communications law.  But it is important for litigants to understand what they are and how they relate to the underlying court case.

Posted in Office of General Counsel
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FCC on YouTube

Posted July 28th, 2010 by Beverlie Sopiep

New Media Intern Beverlie SopiepMissed the July Commission Meeting live? Don’t know what spectrum is? Need help filing a complaint with the FCC

All these videos and more are on the FCC YouTube channel. Our YouTube account serves as a repository for all Open Commission Meetings, workshops, and events. So if you missed a live event on Reboot or need to re-watch past meetings or events, it will most likely be here
Through these videos, we aim to give the public a better sense of what we do as an agency as well as a behind the scenes look at some of the faces creating these policies and initiatives. As the FCC video library expands, we’re working on setting a great standard for video quality, featuring interesting and informative content that’s presented well. I think we’ll be there soon.
We want our videos to be interesting to watch. Please let us know in the comments below what kinds of videos you would like to see, what you like and don’t like that we’ve done so far.
Below is an example of one video that I like.
Members from the Broadband taskforce visited parts of Europe and talked about how they pursued national broadband policy. What I like about the video is not only the content but also creative shots showing the Eiffel tower outside of the window. These small details make the video more interesting. 
Thanks for watching!


Posted in Office Of Managing Director
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Another Savvy Traveler: I did my homework and saved money

Posted July 28th, 2010 by Dan Rumelt


Using a wireless phone in other countries can be easy and economical
if you do your homework before you start your trip. The best solution for
me was to leave my U.S. smartphone turned off and to purchase a world
phone (the phone on the right in the photo above).

I knew I wanted to take a wireless phone on a trip to Europe earlier this summer, but I was concerned about the cost – especially unknown roaming fees. I did my homework and looked at the options. The solution for me was to use a wireless world phone I had already purchased online. But I did check with my wireless provider here in the U.S. about standard international and discount plan rates to see if their rates were lower than my world phone’s. After comparing the numbers it was clearly cheaper for me to stick with my world phone than to go with my U.S. phone provider’s discount plan. A representative at my wireless provider’s retail store even agreed.     

My needs were simple. I had free WiFi where I stayed so I didn’t need to retrieve email or do any web browsing on my phone. All I wanted was to place and receive wireless phone calls for making or confirming restaurant reservations, asking for directions, and just to have for emergencies -- that sort of thing. My world phone was perfect for this. I went to the provider’s site and looked up the per minute charges for calls to and from France and Spain, and to and from the U.S. I probably made about a dozen calls during my 8-day trip and when I returned home and checked my online statement, I was charged exactly as quoted on the site, no more, no less.

The best option for me this past trip may not be the least expensive alternative for me on my next trip. I will do my homework again. I’ll start by checking the FCC’s World Travel Page. Rates have dropped so it may be a better deal for me to go with my U.S. phone and opt for an international plan next time instead of sticking with my world phone. Maybe a totally different phone option will be the cheapest. I will keep you posted.


Posted in International Bureau Consumer and Governmental Affairs Bureau Consumers

One-Stop-Shopping For Consumers

Posted July 27th, 2010 by Joel Gurin - Chief of the Consumer and Governmental Affairs Bureau

The FCC's website has always had lots of information of interest to consumers but, starting today, this information is just one click away.  Today we are launching the Consumer Help Center.  This site  makes it easy for consumers to learn about our work and take action.  Here, in one place, consumers can do read about consumer issues, get practical advice for avoiding problems, file a complaint, comment on our rulemakings, or read what our FCC experts are saying in our Consumer Blog.  The site includes links to

  • Everything consumers need to know about Bill Shock and Early Termination Fees -- two common issues that affect wireless customers;
  • Savvy Traveler tips -- advice on making phone calls when travelling abroad;
  • Broadband Speed Test -- consumers can test the speed of their broadband service;
  • Fact Sheet Library – more than 150 consumer Fact Sheets on telecom subjects;
  • Links to additional resources on a range of issues, including privacy;
  • Links to file a complaint to the FCC or comment on our rulemakings;
  • Blog posts about consumer issues -- with consumer comments welcome;
  • News releases, statements, and FCC actions.

This is a work in progress and will be updated as more information is added.  Please let us know what you think about the site.  We're listening.

Posted in Consumer and Governmental Affairs Bureau Consumers Parents
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The Problem with Pay-for-Play

Posted July 27th, 2010 by Michele Ellison - Chief of Enforcement Bureau

Yesterday, the Enforcement Bureau entered into a settlement with Univision Radio, Inc. to resolve serious allegations that station employees secretly accepted thousands of dollars in bribes to play the music of artists from the Univision Music Group (UMG) record label.  Federal law allows radio stations to accept payments for material they broadcast, but does not permit them to conceal that fact from the public.  The purpose of this law is to protect consumers from deceit – or, as the FCC has long explained, to ensure that listeners understand who is trying to persuade them.

In a companion action, another Univision company pled guilty to criminal charges filed by the U.S. Department of Justice (DOJ).  The Univision company admitted that UMG executives, employees and agents made illegal cash payments to radio station program managers from 2002 to 2006, in order to increase airplay of UMG recordings.  The coordinated actions of the federal government attacked both ends of the enterprise – DOJ’s action primarily addressed the record label that paid the bribes, while the FCC focused on the Univision radio stations that accepted them.

All told, Univision will pay $1 million to resolve the cases.  But the FCC settlement is about more than money.  Univision must also change its business practices, hire a Compliance Officer, and take other concrete steps to avoid future violations, so the music that secretly pays the most, no longer plays the most.

For the uninitiated, this type of “pay-for-play” scheme, called “payola,” is said to be as old as the music industry.  The word “payola” itself – a contraction of “pay” and “Victrola” (those old vintage record players) – underscores how long the practice has been around.  Indeed, Congress conducted hearings to investigate “pay for play” in broadcasting more than a half century ago, at a time when local radio had just begun playing rock ‘n’ roll, and when radio was about the only way for recording artists to reach a broad audience.

The FCC and DOJ aggressively investigated these payola allegations.  But in this age of iTunes, YouTube, and satellite radio, some might wonder why.

Well, first of all, it's the law.  Broadcasters must tell their listeners if they receive cash or gifts in exchange for playing certain music or airing other content.   At its core, this is about fairness and plain dealing.  And even with so many alternatives for artist exposure, recording artists tell us that having their music play on the radio is still critically important.  The fact that payola still exists underscores that some still believe it’s a beneficial way for artists to gain this exposure.

The bottom line, though, is that broadcasting fundamentally differs from other businesses.  In exchange for using the public’s airwaves, broadcasters must program their stations to serve their communities of license – in other words, to serve consumers of broadcast media in their local area.  Generally, how broadcasters fulfill this duty is up to them, but whether you're a listener, an artist, a broadcaster, or a record label, everyone ought to agree that deceiving the public is not in the public's best interest.

Since the early days of radio, many broadcasters have taken steps to ensure that their listeners are properly informed.  Our coordinated enforcement actions make clear that we will not hesitate to act when they fail to do so. While this settlement was about protecting the public trust in our Nation's airwaves, we will continue to bring the same vigor to protecting consumers across all communications services.

Posted in Enforcement Bureau
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Bureau Waiver Fosters Innovation and Competition in the Mobile DTV Marketplace

Posted July 27th, 2010 by William Lake - Chief of the Media Bureau

The Media Bureau’s recent decision to waive some of the tuner requirements for Mobile DTV devices not only gives manufacturers greater flexibility in how they design and market these new receivers, it ensures the devices can be in the hands of consumers in  time for the 2010 holiday season.  Mobile DTV, or MDTV, is a kind of television service designed for use on-the-go instead of in a single location.

Current FCC rules require that all television receivers have the ability to get both digital and analog signals.  Although full-power television stations stopped broadcasting in analog last year, the analog broadcast standard remains in use by some low-power broadcasters.  Until the requirement is removed, television manufacturers must ask the Commission’s approval if they want to produce a device without an analog tuner. 

A group of Mobile DTV manufacturers recently asked for this approval which, among other things, would eliminate their having to produce a potentially larger, heavier and pricier device that uses more power.  We promptly approved their request, furthering the Commission’s commitment to foster innovation and competition in the marketplace. 

Where the service is available, consumers will be able to watch live MDTV on compliant netbooks, smartphones and portable TVs in their cars.  Many MDTV devices also will be able to receive standard television.  Look on the packaging to see whether a particular model receives MDTV signals only or if it also gets nationwide standard DTV signals.  The device will not only provide news and entertainment while on the move, it will be another way to receive critical information in times of emergency.

Posted in Media Bureau

Early Termination Fees: Share Your Story

Posted July 26th, 2010 by Joel Gurin - Chief of the Consumer and Governmental Affairs Bureau

For several months, the FCC has been studying early termination fees (ETFs): those fees that wireless carriers charge if you sign a long-term contract and cancel it early.  Generally, in return for signing a contract with an ETF, wireless customers can get substantial discounts on their handheld devices. With the advent of smart phones, many wireless providers have increased both the discounts and the ETFs.  Other contractual services, including some broadband services, now have these early termination fees as well.

You can read about our work on ETFs, including the correspondence we’ve had with wireless carriers and our survey on consumer awareness of ETFs. Now we’d like to give you a chance to join the dialogue. Please comment to this post to let us know your views or your experience with these common fees.

Posted in Consumer and Governmental Affairs Bureau Consumers

Short questions, big return

Posted July 23rd, 2010 by Dan McSwain

It might seem obvious and simple, but it remains true: FCC.gov and the rest of our online properties exist to serve consumers' and citizens' needs.

The best advice this agency can get about our websites comes from you, the people that make up our online audience.

To meet that goal, our team recently launched a new way for users to make a direct impact in improving our sites. Our user feedback tool will play a hugely valuable role in helping us design better and more useful websites.

There are several challenges we're keeping in mind as we work to improve.  These sites need to be accessible, efficient, and easy-to-use for a broad range of users. Throw in some government rules that haven't quite kept up with the technological times, and the job gets even more challenging.

That's what makes your input so important. Your voice will help us make data-driven decisions about how we can improve the FCC.gov experience. And you can be a part of our continued emphasis on public participation and engagement in our online work.

Oh, and one more thing. Behind the scenes, we're preparing for a major redesign of FCC.gov this year. This feedback will be a valuable part of the data we consult in this redesign process -- and we want as many website users as possible to take part. The National Archives recently solicited citizen feedback on how to best serve their audiences through a redesigned page. The team at the National Archives deserves recognition for running an open and participatory process – and their work will definitely inform ours moving forward.

Take a simple step and tell us what you think.

Posted in Office Of Managing Director
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Openness and Transparency: A Digital Dialogue

Posted July 22nd, 2010 by Benjamin J. Balter

Benjamin BalterThe internet’s continued evolution has given rise to countless avenues of communication not imagined just two-decades earlier. Today, executives can leverage the power of e-mail to broker deals halfway around the globe at near-instantaneous speed. Former classmates can exchange photos or reminisce about their favorite elementary-school teachers, countless years after graduation. Scientists and researchers can share their latest findings or can query humanity’s collective knowledge, all without leaving their chair. And pet lovers across the country can upload more than 300,000 videos of their kittens. At the FCC, this innovation provides ever-evolving avenues for openness, transparency, and continued dialogue between government and the citizens it seeks to serve.

For the FCC, openness is not simply about making information obtainable for those who seek it, but rather, making sure that information is well known, easily accessible, and freely open to all. Whether on this blog, Facebook, Twitter, MySpace, or the FCC’s numerous RSS feeds, the agency makes information regarding its actions – past, present, and planned – readily available across today’s most popular social media platforms for users to share, comment, and most importantly, learn what the government is doing on their behalf.

In today’s multimedia-rich digital age, the information necessary to ensure the FCC’s transparency comes in many forms. While /data serves as a robust clearinghouse for the agency’s traditional forms of knowledge, such as reports or databases, increasingly, transparency can be found in the pixels of the images and videos posted on the FCC’s Flickr photostream and YouTube channel. 

That information, however, requires context to gain true meaning, generated by the FCC’s commitment to continuing an ongoing dialogue with, and among the public. A truly innovative approach to governance, the FCC’s Broadband and Open Internet Idealscale forums allow citizens to add their voice to the discussion, brainstorm ideas with others, and vote for ideas they think are best. The FCC’s Reboot Uservoice forums bridge decision-makers and those most affected by decisions in a collaborative approach to online services, information, and engagement.

These are just a handful of the various tools the FCC uses daily, and an even smaller sampling of the online tools available today, let alone what innovation tomorrow may bring.  What tools are we not using? What could we use better? As we continue on the journey together toward increased openness, transparency, and continued dialog, I encourage you to share your thoughts both in the many avenues listed above, and in the comments section below.

Posted in Open Government Office Of Managing Director
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Americans with Disabilities Act 20th Anniversary Celebration

Posted July 21st, 2010 by George Krebs

 On Monday the country marked an extraordinary milestone as we celebrated the twentieth anniversary of the Americans with Disabilities Act (ADA). To commemorate the occasion the FCC, along with the White House and the Department of Commerce, held a technology showcase displaying the remarkable advances in assistive technology. A short program followed featuring a host of speakers including Chairman Genachowski (whose remarks you can read here) and the President’s Special Assistant for Disability Policy, Kareem Dale. Awe-inspiring performance troupes dotted the event. The piece performed by the stunning Wild Zappers, an all male deaf dance company, marked a high point. This video was shown as an introduction to the program.


Posted in Events
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