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In several recent actions, the FCC has imposed severe fines on broadcast licensees for operating auxiliary facilities without a license.  These actions highlight the importance of insuring that your broadcast stations have all of the licenses that they need to operate the technical facilities that they are using. 

In a decision issued today, the FCC fined a Regent radio station $7000 for failing to file a required form on a timely basis and for operating an FM translator station without authority.  According to the decision, Regent had inadvertently failed to include the translator on the renewal application for the main station.  Seven months later, it discovered the oversight, filed the renewal, and requested temporary authority to continue to operate the station.   The Commission imposed a fine of $3000 for failing to timely file the renewal, and $4000 for operating for the 7 months without authority.

Two weeks ago, the FCC released another Notice of Apparent Liability, proposing a $6600 fine for the late filing of two renewal applications for earth stations used by a public television licensee.  One renewal was filed about 2 months late, the second about 2 years late.  The FCC again imposed fines both for the late-filing, and for the operation without authorizations for the operation during the period after the licenses had expired and before the late renewals and STA requests were submitted.

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The FCC today released the full text of its Order amending the procedures to be used when making changes in the FM Table of Allotments, and allowing city-of-license changes for all radio services to be processed as minor change applications, which should substantially speed their processing.  The text, which provides the details of the decision announced earlier this month (which we summarized in our posting of November 3) can be found on the FCC's website, here.  The changes in the procedures will be effective 30 days after publication in the Federal Register.  We will provide a more detailed summary of this decision later today. 

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Just a reminder that as of December 31, 2006, the Commission's EAS rules will be extended to most digital services.  Specifically, as of December 31st, digital television, digital cable, digital radio (including LPFMs), and satellite digital radio, will be required to comply with Part 11 of the Commission's Rules, which require participation in all national EAS activation.  Furthermore, like their analog brethren, digital services will be required to conduct monthly and weekly tests of the EAS procedures consistent with the Commission's Rules. 

Digital television and digital radio airing multiple streams of programming are required to make EAS messages available to viewers and listeners on all program streams, including both free and subscription based channels.  Stations airing multiple programming streams have a bit of flexibility to determine how the message will be provided over the multiple streams.  For example, DTV stations and HD Radio stations can either transmit the emergency signal separately over each stream, or carry the message on one stream and force tune the other streams to that main channel. 

Participation in state and local Emergency Alert Systems by digital television and digital radio remains voluntary, but if stations elect to participate in such activations, they must comply with the Part 11 EAS rules.  Also, it is noted that  Direct Broadcast Satellite television has been given slightly longer to comply with the EAS rules, and must comply with these rules by May 31, 2007. 

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For the last 10 years, since the liberalization of ownership rules under the 1996 Telecommunications Act, the broadcast industry has been in the process of putting together cross-market platforms in radio, television and newspapers in markets across the country.  In the flap over media ownership that began with the FCC's 2003 multiple ownership decision, and which continues through the current proceeding, media critics have sought the shrinking of big media companies, which they hold responsible for everything from violence and indecency on the airwaves to the lack of new music on radio.  Now, suddenly, 2006 has brought a restructuring of big media, without any government intervention whatsoever.  What impact will this restructuring have on the current proceeding?

The announcement by Clear Channel Communications that it is being sold, and at the same time it's selling all of its television stations and over 400 of its radio stations in 90 smaller markets, is but the most recent example of that emerging trend.  CBS, which itself was split off from Viacom, is in the process of selling off a number of its radio properties in smaller markets.  ABC also has a deal to sell off the bulk of its radio properties, and announced in its comments in the current multiple ownership proceeding that it did not care what the FCC did, as it had no intent of acquiring any additional broadcast stations or newspaper properties.  Similarly, Tribune is exploring strategic options that reportedly include splitting its broadcast and newspaper properties.  The New York Times has also announced that its exploring spinning off its television properties.

All of this unforced media divestiture should have an impact on the current multiple ownership proceeding.  On a practical level, who is going to push for the current proceeding to be completed?  Many of the players who were active in the past no longer seem like they will care about the outcome of this proceeding, and others seem like they will be preoccupied, at least in the short term, with their business deals.  While the FCC has announced the scheduling of its second field hearing (in Nashville on December 11), it still has 4 more promised hearings to hold at some point in the future.  Unless these are scheduled quickly, and without the big players pushing the FCC to move quickly, the decision could easily drag.  

So who is left to actively push the FCC to reach a decision in this proceeding?  On the TV side, Fox and Sinclair seem likely to be the most active proponents of great deregulation - and, based on past history, most likely to pursue court actions to obtain ownership relief if the FCC does not move quickly on the current proceeding.  Gannett and the Journal Corporation own newspaper and TV stations and may push for more relief.  Clear Channel had been the major proponent of further radio deregulation.  Will their activity continue?

 

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The FCC has announced that there will be a freeze on the filing of all FM minor change applications during the filing window for the initial applications (on Form 175 ) for Auction 70.   We gave more details on the upcoming auction in a posting last week.  The filing window, for an auction of 121 new FM channels, will open on December 6, 2006 and close on December 19, 2006. In addition to the freeze on all FM minor change applications during the filing window, a freeze on any proposal to amend the FM Table of Allotments for any of the 121 channels goes into effect immediately, and will last through the Auction 70 filing window.

The freeze will allow Auction 70 applicants to select transmitter sites without fear of the allowable area for their transmitter site changing beneath them as they plan their filings.  Auction applicants can, but don't need to, specify in their Form 175 applications a particular site that they will use if they are the successful bidder in the auction.  This allows auction applicants to protect preferred sites as, following the close of the Form 175 application filing window, the Media Bureau will not accept any applications or counterproposals which do not fully protect preferred site coordinates specified in Auction No. 70 Form 175 applications.

A copy of the Commission's Public Notice on the freeze can be found here.

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On Friday, just as parties are getting ready to submit applications due this week for an FM auction for "leftover" channels, the FCC announced the dates and procedures for its next FM auction.  The next auction will feature the 121 new FM channels listed in an appendix to the Public Notice.  The Public Notice sets out the rules and procedures that will govern the auction.  The auction itself will begin on March 7, 2007, with short-form applications (expressing an intent to bid on some or all of the channels) due between December 6 and December 19.

Other auction deadlines include the requirement for posting Upfront Payments necessary to compete in the auction on February 5, 2007.  An Auction Seminar will be conducted on December 6 in Washington to go over all the auction processes and procedures, and a Mock Auction, to allow applicants to practice with the electronic bidding system, will be held on March 5. 

So check the list to see if there might be a channel in which you might be interested.

 

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At its open meeting this morning, the FCC unanimously adopted a Report and Order streamlining the process of modifying the community of license for FM and AM stations.  According to the comments at this morning's meeting, and the Commisison's News Release, the Order will do the following:

• Allow AM and FM stations to seek a community of license change on a first-come, first-serve basis on an FCC Form 301 minor modification application.  Previously, AM stations were required to wait for a filing window, and FM stations had to endure a rule making proceeding before it could file a change to the community of license.   Such changes will be allowed on a Form 301 application if they are mutually exclusive with the station's daytime facilities, and must include a 307(b) showing demonstrating that the change in community is in the public interest. 
• Require local public notice by FM stations to both the community it is moving into and the community that it is leaving.  The proposed community of license changes will also be published in the Federal Register and no action will be taken for 60 days in order to allow for public comment.
• These community of license procedures will extend to noncommercial educational licensees as well.
• The rule making filing fee will be required at the time that an applicant files a Form 301 application.
• Allow electronic filing for allotment proceedings.
• Defers consideration of a limit on the number of proposals that can be filed simultaneously until the Media Bureau can evaluate the impact of the new rules.
• Leaves unchanged the current case-by-case review of proposals to relocate a community's sole local service to be another community's first local service.
• And finally, the freeze on FM rule makings will be lifted when the new rules become effective, which will be 30 days after publication in the Federal Register. 

In addition to lifting the freeze that has been in place for a year and a half, this streamlining Order will greatly accelerate the process of modifying a station's community of license.  Previously, the two-step process of a rule making followed by an application for the change of community of license of an FM station took an estimated two years to complete.  Such changes for AM stations took twice that time, due to the fact that applicants had to wait for the FCC to open a filing window for such changes.  More details will be available once the text of the Order is released, so check back in the future. 

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As anticipated, the FCC adopted a Notice of Proposed Rule Making (NPRM) at this morning's open meeting, which seeks input on measures to protect migratory birds from communications towers.  Based on the comments at this morning's meeting, the NPRM tentatively concludes that the FCC has the authority to enact rules to protect migratory birds from communications towers and facilities, but requests further comment on whether the available evidence supports FCC action, or whether other statutes, such as the Migratory Bird Treaty Act, compel FCC action.  The FCC's News Release regarding this item is available here.

Having tentatively concluded that it has the authority to act in this arena, the NPRM contains a number of proposals aimed at mitigating the effect of communications towers on migratory birds.  For example, the NPRM suggests that the FCC's rules conform to the FAA's approach of preferring medium strength white strobe lights over red lights.  The NPRM also requests input on other lighting regimes, such as using red strobes rather than white.  Most significantly, the item seeks input on whether the FCC should adopt guidelines on guy wires, height, and location of communications towers, as well as measures to encourage the co-location of antennas on existing structures.  Comment is also sought regarding the impact that any FCC rules in this area would have on other environmental issues, such as historical preservation and wetland protection.  Finally, the item addresses how applicants would prepare an environmental assessment under the FCC's rules if it is determined that a particular project would have an impact on migratory birds. 

Further information, as well as the specific dates for submitting comments in this rule making proceeding, will be forth coming and we will be sure to keep you posted so that interested parties can file comments on this issue. 

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The FCC's Order implementing the recently adopted changes to the FCC's Children's Programming Rules has now been published in the Federal Register, meaning that the effective date for the new rules is January 2, 2007.  These new rules are summarized in our earlier entry of October 24, below, and in our recent Bulletin.  Most notably, the Order affirms the requirement that DTV stations broadcasting multiple streams of programming must increase the amount of kid vid programming in proportion to the amount of additional free video provided.  Accordingly, DTV stations that are multicasting programming on multiple streams should ensure that they have enough children's programming lined up by January 2nd to meet the new requirements. 

A revised version of the FCC Form 398 Quarterly Children’s Programming Report has already been approved for use, and licensees will begin using the new form to report their core children’s television programming, including their digital core programming, as of the first quarter of 2007.  Beginning with the report filed on April 10, 2007, stations must report their DTV children’s programming as well as their analog programming. 
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Just a reminder that there will be a freeze on the filing of minor modifications for commercial and noncommercial FM radio stations from November 6 through November 13, 2006.  This week-long filing freeze on minor mods corresponds to the opening of the filing window for the submission of FCC Form 175 short form applications for participation in FM Auction No. 68.  As we reported earlier on this blog, Auction No. 68 will offer 9 construction permits that were previously unsold from earlier FCC FM auctions.   The filing freeze will allow auction applicants to specify preferred site coordinates for these nine allotments as part of their short form applications.  The filing window will officially open on noon ET Monday, November 6th and close at 6PM ET on Monday, November 13th, so plan your filings accordingly. 

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