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All commercial broadcasters (AM/FM/TV and even LPTV) have to file their Biennial Ownership Reports on December 1, beginning a very busy month in the broadcaster's regulatory world.  December 1 is also the deadline for noncommercial ownership reports to be filed by noncommercial radio stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont, and noncommercial television stations in Colorado, Minnesota, Montana, North Dakota and South Dakota (see our Advisory here).  Annual EEO Public File reports are also due to be in station files for stations in all of the states where noncommercial stations have ownership filings (see our Advisory on the EEO Public File Report here).  License renewals for radio broadcasters in Georgia and Alabama are also due on that date (see our License Renewal advisory here) , as are the Commission’s cut of the ancillary and supplementary revenues made by digital television broadcasters (our summary here).  And all full-power broadcasters need to file their reports on the results of the recent Nationwide EAS Test by December 27 (see our post here).

December also brings a Commission meeting, at which the CALM Act rules will be adopted according to the tentative agenda for the December 12 meeting.   The CALM Act is intended to eliminate loud commercials.  These rules are required by statute to be adopted in December (see our summary of the proposed rules here).  Comments on a number of other FCC proposals in rulemaking proceedings are also due. The FCC just announced  that comments in the proceeding to determine if FM digital operations using the IBOC technology (so-called HD Radio) can operate with different power levels on each side of the main channel are due by December 19 (see our summary of this proceeding here). Comments on the controversial proposal for the online public inspection file for television stations are due on December 22.

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In an eagerly anticipated case involving TV stations in the Honolulu market, the FCC's Media Bureau determined that a programming swap that permitted one company to hold the licenses of both the NBC and CBS affiliates in a single market, and to also provide technical and office services and news programming to a third station in the market, was permissible under current rules.  However, the Commission warned that it would consider in its upcoming Notice of Proposed Rulemaking in its Quadrennial Review of the multiple ownership rules whether similar situations should be permitted in the future, and seemingly implied that even this combination could be subject to further review in future licensing proceedings.  The permissibility of shared services agreements has been a question raised by public interest groups for quite some time (see our post here), and has also been raised by certain cable and satellite television operators as such combinations can result in one broadcaster negotiating carriage agreements for multiple stations in a market.  Based on this case, and the issues raised in connection with previous decisions, this will no doubt be a very controversial topic when the Commission considers the upcoming multiple ownership proceeding.

The Honolulu case began with one owner - Raycom - holding two licenses in the market - one an NBC affiliate, and the other an affiliate of the MyTV Network.  As there are 8 independently owned television stations serving Honolulu, the combination of these two stations, only one of which is a Top 4 station in the market, was permissible.  Raycom then entered into a deal with the owner of the local CBS affiliate, where the parties swapped call letters and network affiliations.  Raycom also purchased many of the non-license assets of the station, and received an option to purchase the station, and agreed to pay the licensee, over time, $22 million.  Raycom also entered into a shared services agreement with the owner of the station that had become the MyTV affiliate where Raycom would provide back office services, sales personnel, and a physical location for the station's studio and transmitting antenna, in exchange for 30% of the stations revenues, and a flat monthly payment.  As detailed below, the Commission determined that the swap of call letters and network affiliations was not subject to review at this time as there was no licensing transaction before the FCC, and the shared services agreement did not violate current FCC policies.

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The FCC has set the date for comments on the proposal for television stations to maintain an online public inspection file, including an online political file (see Federal Register notice here).  Comments are due on December 22.  Replies are due on January 6.  Happy Holidays from the FCC!  We summarized the FCC's proposals here and here.  While the proposed new rules will relieve stations from the burden of hosting the files themselves (as the FCC is proposing to host all of the files on its own servers), it still requires that stations upload their information - including all information that is put in their political file, into a new electronic reporting system to be devised by the FCC.  As we described in detail in our summary of the proposal for the online public file, the FCC is asking whether certain new public file obligations should be added to those currently in place.  These include possible posting of comments on programming that come from the station's social media efforts in addition to the letters and emails currently required; a proposed requirement to place in the public file information about sponsorship identification of all "pay for play" material that is broadcast on a station (currently only broadcast, not kept in any paper form); a requirement to provide information about shared services agreements and the programming that they provide to a station; and a requirement that all information about fines and other enforcement actions taken against a station be posted to the online file.  So how much does the FCC think that this will cost stations?

As we wrote yesterday, in adopting rules, the FCC is currently bound by the Paperwork Reduction and the Regulatory Flexibility Acts, both of which require some assessment of the impact of new regulations, particularly on small businesses.  In the Federal Register publication, the FCC's assessment of the regulatory burden of these proposed new obligations is broken down into several pieces.  The burden for the new online public file requirement, including the posting of the political file, is set forth as follows:

Respondents/Affected Parties: Business or other for-profit entities; Not for-profit institutions; Individuals or households

Number of Respondents and Responses: 25,422 respondents; 59,833 responses

Estimated Time per Response: 1 to 104 hours.

Frequency of Response: On occasion reporting requirement; Recordkeeping requirement; Third party disclosure requirement

 Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C 151, 152, 154(i), 303, 307 and 308

Total Annual Burden: 2,158,909 hours

 Total Annual Costs: $801,150.00

Stations should look at and evaluate these numbers as part of their response, as the FCC has invited a cost-benefit analysis of the proposed new rules.  How is it that the FCC assumes that the regulatory burden would be over 2 million hours, but that the costs would be less than a million dollars?  How will this work be done and paid for?  It is also interested in that the number of respondents is listed as 25,422.  As there are only 1,782 full-power television stations and about 450 Class A stations according to the last FCC Report on station totals, who else is expected to report on this form?  The FCC, in its Notice of Proposed Rulemaking, specifically exempted radio from the obligations for an online public file - at least for the time being.

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In recent weeks, there seems to be a competition to make the FCC more responsive, and to mandate that, before it adopts any new regulations, it take into account the costs of the proposed regulations and the burden that they place on those being regulated.  The Communications and Technology Subcommittee of the House Energy and Commerce Committee adopted a bill (The FCC Process Reform Act of 2011) that would, if adopted by the full House and the Senate, require that the FCC, before adopting any new regulations, take several steps to make sure that regulations were really necessary (see a summary of House bill here).  Before adopting any rule, the Commission would have to survey the marketplace, determine that there was a market failure or specific consumer harm, then take into account the cost of complying with regulations before the new regulations are adopted.  The proposed legislation would also require that the FCC adopt deadlines on many FCC actions ("shot clocks"), perhaps in response to a Study commissioned by the House Committee looking at the length of time that many FCC proceedings take.  The FCC adopted its own proposals for making its regulations less burdensome by reviewing the continuing need for existing rules, following the President's call for all agencies to take such action.  The FCC report, after making the seemingly obligatory bows to broadband adoption that the Commission seeks to foster, talked about many of the same issues that the Congressional committee seemed to be addressing - deleting unnecessary regulation wherever possible.  What changes will these efforts bring to the FCC?

Call me cynical, but I doubt that the proposed changes will really lead to any significant differences in the way that the FCC does business.  The FCC is already bound by all sorts of laws that demand that it take into account many of the same considerations that are included in the plans of Congress and the FCC.  The Paperwork Reduction Act has already stopped certain regulations from going into effect, including the Form 355 (which sat in limbo for 4 years and the FCC is only now considering reviving in a somewhat more abbreviated form).  The FCC also must take into account the Regulatory Flexibility Act, looking at the impact of any regulation on small entities who would be subject to any new rule.  Congress itself has already enacted other requirements that the FCC review regulations on a periodic basis - for instance the required Quadrennial Review of the FCC's multiple ownership rules.  And what do these accomplish?

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The FCC has just announced another of its regular EEO audits, though this time its just for cable systems (see the FCC Public Notice and list of affected systems here).  The FCC will audit 5% of all broadcasters and cable companies each year to assess their EEO compliance, so be prepared in case you are next.  Broadcasters were last audited in August (radio stations only), so expect another group to be required to submit their information for scrutiny in the not too distant future.  Our Advisory on complying with the EEO obligations of broadcasters is available here.

This audit also serves to remind broadcasters of their obligation to annually prepare and file an EEO Public File Report, detailing information about hires made and employment recruiting sources used in the prior year, as well as on the "supplemental efforts" that they have engaged in to educate their communities about opportunities in broadcast employment.  Station employment units in Alabama, Colorado, Connecticut, Georgia, Massachusetts, Maine, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont need to have their reports in their public file, and on their website, by December 1. For more information about that requirement, see our Advisory on the EEO Public File Report here.

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When the FCC last month started a new proceeding to mandate an online public file for television stations, the Commission promised to soon initiate another proceeding to look into the need for a new form to document the public interest programming that TV stations provide.  The FCC today fulfilled that promise, and issued a Notice of Inquiry ("NOI") to start the process of adopting a new form for TV stations to complete to report on various categories of "public interest programming," however that might be defined.  In 2007, the FCC had adopted Form 355 to accomplish that task.  But, after an outcry from stations about the paperwork burden that the form would impose, the FCC never submitted it to the Office of Management and Budget for approval under the Paperwork Reduction Act, and thus the form never became effective.  The adoption of the Form 355 was vacated last month in the online public file proceeding.  But the Commission now proposes its return - in some fashion.  So what does the Commission now propose to require from TV stations to document their public interest programming?

First, the FCC asks a series of questions about how such a form should be structured, and how the information should be collected to be meaningful for those that want to analyze it, but not overly burdensome for the TV stations.   The Commission seems to conclude that the form is necessary - not even asking questions on that basic issue of whether to adopt a standardized form.  The NOI states:

We continue to believe that the use of a standardized disclosure form will facilitate access to information on how licensees are serving the public interest and will allow the public to play a more active role in helping a station meet its obligation to provide programming that addresses the community's needs and interests

The Commission then goes on to discuss the Quarterly Programs Issues lists  ("QPIs") that are currently required to be placed in a station's public file every three months - describing the issues that station management sees as important in the community and the programs that the station has broadcast to address those issues (see our most recent advisory on this obligation, here).  The Commission states that these quarterly reports should be replaced, as broadcasters have been uneven in their recordkeeping of such lists.  Of course, that may be because the FCC has never proscribed any specific form for these reports, nor specifically said what is acceptable and what is unacceptable in connection with such reports.  Seemingly, replacing one form with another (albeit a more complete, detailed new form) may well accomplish nothing if the new report does not have clear and unambiguous instructions - something never adopted for the Quarterly Reports.

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By December 1, 2011, all commercial and noncommercial full power digital television (DTV) stations, as well as all digital low power, Class A, and television translator stations must electronically file an FCC Form 317 with the FCC. This Form reports whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2011. Under the Commission's Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis. Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.  If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service.

All full power DTV stations -- regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority -- must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. In addition, all licensees of digital low power television stations, digital television translator stations, or digital Class A television stations must also file a Form 317 by December 1st.  The Form 317 is brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the FCC's CDBS filing system. 

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Now that we've completed last week's first-ever Nationwide test of the EAS system, designed to alert Americans in the event of an emergency, the FCC is in the process of collecting information about the successes and failures of the test, through the submissions of participants.  Forms reporting on the results of the test are due by December 27.  At the same time, there has been at least one Congressional call for an expansion of the system in order to provide alerts not only by broadcast, cable and direct broadcast satellite systems, but also through on-line social networking communications tools. 

According to press reports (see, e.g. this article from the NY Times), the nationwide test uncovered many shortcomings in the system, as many broadcast stations (including all stations in two states) never received the alerts from the station that they were monitoring, in some cases because the message was never delivered to primary stations which were supposed to start the relay of the message to other stations along the daisy-chain system that is supposed to be in place.  Cable and satellite also had many problems.  Despite the fact that there may have been issues at your station or in your area, all participants should report on how their facilities fared in the test.  The FCC will take this information to assess what needs to be done to repair the problems that were witnesses.  The necessary Forms to report on the results of the test are available on the FCC's website.  In adopting the rules for the test, the FCC stated that it was not intending that the reporting system be a way to punish stations whose facilities did not receive or transmit the test, but instead to be a diagnostic tool to determine whether or not the system worked.  So the failure to file the forms to report on the success of the test on your stations is much more likely to bring an FCC enforcement action against your station than is reporting that, for one reason or another, the test did not work.  These forms are due on December 27.

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If your station engages in children's programming and maintains a website or web page directed to children under the age of 13, this case may be of interest to you. 

The operator of a website called Skid-e-Kids, a self-described “Facebook and MySpace for kids,” has learned that it is not enough merely to have a privacy policy that requires parental consent prior to obtaining personal information online from children under the age of 13. Such website operators must actually abide by that policy as well. The Federal Trade Commission (FTC) reinforced that lesson via an enforcement action and settlement with the company this week.

Skid-e-Kids (skidekids.com) advertises itself as “Safe, Fun and very educational.” Their target group is children ages 7-14. The Children’s Online Privacy Protection Act of 1998 (COPPA) and corresponding FTC rule require parental consent before children under the age of 13 can be requested or required to provide personal information online.

Skid-e-Kids had a Privacy Policy that “requires child users to provide a parent’s valid email address in order to register on the website.” In practice, however, that was not the case. Children were required to provide a birth date, gender, user name, password and email address prior to using the website. Once that information was provided, the child was automatically registered on the website. Worse still, Skid-e-Kids did not even request a parent’s email address and made no attempt to notify parents or obtain parental consent.

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The Commission today released its further Public Notice establishing the filing dates and adopting the procedures for the upcoming auction of 119 New FM Radio channels, scheduled to start on March 27, 2012.  The auction has been designated as FM Auction No. 93 and offers vacant FM allotments in various communities across the country.  Although the Commission removed four allotments from the slate of available channels, the remaining 119 channels are up for grabs.  A full list of the licenses available in the auction can be found here.  Anyone potentially interested in bidding on these new FM stations should start doing their due diligence now (and see our earlier posting for tips about specific issues to consider). 

The auction process will start with a filing window from January 3 to January 12, 2012 for the submission of an FCC Form 175 "short form" application expressing interest in the auction.  All potential bidders must submit a Form 175 by 6:00 PM ET on January 12, 2012 in order to be eligible to bid.  Next, applicants will need to make an Upfront Payment by 6:00 PM ET on February 22, 2012, in order to deposit funds with the Commission equal to the starting price for at least one of the licenses for which they are interested in bidding.  In order to be eligible to participate in the auction, bidders will need to follow both steps and timely file an acceptable short form application and wire a sufficient upfront payment.  The FCC will hold a Mock Auction on March 23, 2012 to allow bidders to test the bidding software and familiarize themselves with the auction process, and the real auction will kick off on Tuesday, March 27, 2012. 

In connection with Auction 93, the FCC will temporarily freeze the submission of all minor change applications for both commercial and noncommercial FM stations from January 3 through January 12, 2012.  This freeze will prevent existing stations from filing minor modification applications that might be mutually exclusive with the preferred allotment site coordinates that a potential bidder might specify on its short form application.  Licensees of existing stations should plan accordingly and file any minor modifications before January 3rd lest they have to wait until the freeze is lifted following the close of the Auction filing window on January 12.

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Tomorrow (November 9) will be the first ever Nationwide test of the Emergency Alert System, and last minute questions and issues continue to come in.  One caution relayed to us from a very experienced broadcast technical consultant concerns post-test news coverage.  This consultant surmises, probably accurately, that news reports, and perhaps comedy writers, will want to do bits about the test, and may be tempted to use a recording of the test itself in their on-air programs.  As we wrote several months ago, if your station broadcasts the EAS tones in any such story or comedy bit, the tones will trigger the EAS monitoring system of any station down the 'daisy chain" line, and thus the emergency information associated with these tones (in this case a national emergency) could end up being broadcast on other stations.  The broadcast of the EAS tones where there is no real emergency is a violation of the FCC's rules - so warn your on-air staff now to avoid any use of the real tones in post-alert broadcasts.

Second, there have been many questions about the forms to be used to report on the tests.  The instructions to the on-line forms have been posted (here), even though only Form 1 is still the only form available (not Form 3, which will actually report the results of the test, and which will apparently form the basis of the paper form that stations can file if decide not to file electronically).  The instructions make clear several points.  This includes the fact that each full-power station should file a separate report, even if they are commonly owned and operate from a common studio with common EAS equipment. The Instructions also suggest that the FCC would like to get information about translators, boosters and other secondary stations that carry the test, so that the FCC can get a complete picture as to how far the test was disseminated.  While the instructions suggest that information about the translators can be filed in a separate paper filing (and that information about translators is apparently a request, rather than an order), they do indicate that some reference to that filing should be made, presumably in a comment section in the as yet unavailable Form 3.  So look carefully at these instructions, so that you can be ready to supply the information requested by the FCC by the December 27 filing deadline.  For more information about the test, see our previous posts here and here. 

Update - 11/09/2011 - The FCC late yesterday issued a public notice reiterating our concerns about stations using the EAS tones in news reports or other coverage of the Nationwide Test. 

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There have been many reports about the attempts by Sirius XM Radio to license music directly from record labels, bypassing any royalty rates set by the Copyright Royalty Board.  Direct licensing would have Sirius pay the record labels or copyright holders for the rights to use music, avoiding any dealings with SoundExchange, which normally collects the royalties for the public performance of sound recordings under the statutory license.  The most recent report about Sirius' efforts was in the New York Times, here.  Sirius, like webcasters, pays royalties set by the CRB (if they cannot be negotiated among the parties) that cover the public performance of all legally released sound recordings.  While webcasters currently have royalties that are in place through 2015, the royalties for Sirius end in 2012, and are being litigated now (see our story here on the last royalties set by the CRB for Sirius).  To avoid the uncertainty of litigation, with which webcasters are very familiar, Sirius has been attempting to license music directly from the copyright holders.  This is not a new story - Rhapsody reportedly tried the same thing earlier this year, and Clear Channel tried to get royalty waivers from independent artists several years ago in exchange for more exposure for their music (see our stories, here and here).  Each time a music service suggests that it might want to license music directly to try to recognize some savings over the rates established through CRB litigation, the music community objects - see, for instance, the statements of unions AFTRA and AFM here, that of SoundExchange here, and that of A2IM (the association of independent record labels), here.  But what is really wrong with the efforts of services to negotiate lower royalties?  If you believe the testimony of SoundExchange's own witness in the Copyright Royalty Board proceedings - nothing at all.  In fact it is to be expected. 

In the CRB proceeding that was held in 2005-2006 (and from which, most of the settlements arose that now govern the royalties for sound recordings played by Internet radio stations), SoundExchange relied on a number of witnesses, including one expert, Michael Pelcovits, an economist whose model was the principal testimony relied on by the CRB in establishing the rates they determined to be reasonable.  In his written testimony, Mr. Pelcovits stated as follows:

...a rate that is set too low may have serious economic dangers.  By setting a rate too low, inefficient entry may be encouraged, and inefficient levels of production will be encouraged, which can hinder the development of an efficient market.  It is also worth noting that setting the statutory rate too high will not necessarily be harmful to the market.  If the price is too high, parties can (and are almost certain to) negotiate agreements for rates lower than the statutory standard.  Thus, a rate that is set too high is likely to "self-adjust" because of the sellers' natural incentive to meet the market. 

(Emphasis added).  The statutory rate referred to in this quote is the rate that is set by the CRB.  What this quote says is that, if that rate is set too high, then parties will naturally negotiate after-the-fact to try to find what the real market rate should be, and that such negotiations should be expected - not feared as many seem to be claiming as these attempts to cut deals come to light.  In other words, the music community seemed to favor (and expect) such negotiations, before they were against them it in their statements today. 

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Last week, I did a presentation on the issues facing broadcasters at the Kansas Association of Broadcasters annual convention (a copy of the slides from my presentation is available here).  I spoke about some of the day-to-day issues that can get broadcasters into trouble, as well as some of the big policy issues that broadcasters need to consider.  My presentation was preceded by a session conducted by the agent in charge of the Kansas City field office of the FCC, who emphasized the many issues that the field agents discover at broadcast stations that can lead to fines.  In the week since I returned from Kansas, it seems like the FCC has wanted to demonstrate the examples given by their agent, as there have been a large number of fines demonstrating the breadth of technical issues that broadcasters can face.  Fines (or "forfeitures", as the FCC calls them) were issued or proposed for issues ranging from faded tower paint, tower light outages, EAS problems, operations with excess power, and the ubiquitous (and very costly) public file violations.  Fines of up to $25,000 were issued for these violations - demonstrating how important it is not to overlook the day-to-day compliance matters highlighted in my presentation.

The largest of these fines was for $25,000.  This fine was imposed on a station for failing to have operational EAS equipment, not having an enclosed fence around the antenna site, and a missing public file.  The fine was originally proposed in a Notice of Apparent Liability (the first step in imposing an FCC fine, when the FCC spells out the apparent violation and the fine proposed, and the licensee is given time to respond to the allegations), released in July (see our post here).  The licensee failed to respond to the Notice of Apparent Liability, thus the fine is now being officially imposed.

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With less than a week to go before the first ever Nationwide Test of the Emergency Alert System ("EAS"), changes are being made for the November 9 test.  In a Public Notice released today, the FCC announced that the EAS message that will be conveyed will be only 30 seconds long, not the two or three minutes that were originally planned.  There were some concerns expressed by certain groups, include groups representing cable television operators, that while the test was underway, certain automatic systems would kick in, overriding the visuals from the programming channel being broadcast.  The automatic EAS alerts that would be transmitted in a textual format would not specifically say that they were being conveyed as part of a test.  While the audio accompanying the test would provide that information, representatives of the hearing-impaired community were concerned that some people might believe that a real emergency was taking place.  While the FCC and FEMA had initially indicated that a two or three minute test was necessary to make sure that the message could be conveyed throughout the whole daisy chain system and that the system would be capable of conveying a long message that might be necessary in the event of a real emergency, it appears that they have now agreed that a 30 second message will be sufficient, and less likely to start a "War of the Worlds" panic among those who don't hear the audio message from the test.

The EAS Handbook for this Nationwide test (which we wrote about last week, here) is supposed to be at the control point of all stations and has been revised to take into account the new length of the test.  The revised handbook is available here.  Also, the Commission has made heard complaints about Form 1 on its on-line reporting system for this test, which we also wrote about last week.  One complaint was that the form required information about the location of the station in geographical minutes in decimal format, not in the minutes and seconds as expressed on the face of FCC licenses and in most FCC databases.  Many broadcasters had complained about that requirement - not knowing how to convert from minutes and seconds to minutes in a decimal format.  In response to those complaints, the Form has been revised to provide a link to a decimal converter program - where you can put in the minutes and seconds as expressed on your license and get the decimal expression of the transmitter site location.  Other minor changes in the form have also been made - including making some information (like a cell phone number for someone at the station) optional.

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The Third Circuit Court of Appeals today issued its decision in the case dealing with the FCC's fine for the Janet Jackson "clothing malfunction" Super Bowl incident.  The Court once again rejected the FCC decision - essentially upholding a 2008 decision that had found the FCC's indecency fine to be an arbitrary departure from prior precedent.  The Court found that the Commission had a policy of not finding a "fleeting image" actionable, and the Commission did not explain why it was changing its policy, or even acknowledge that it was in fact changing policy. The 2008 decision had been remanded to the Third Circuit by the Supreme Court after the Court's decision on the Golden Globes case (see our summary here and here), dealing with "fleeting expletives", to determine if the Supreme Court's decision had any impact on this case.  In today's decision, the Court also found that a fine cannot be imposed on a party who did not know that the conduct in which it was engaging could lead to a fine.  Bob Corn-Revere and Ronnie London from our firm litigated this case, and have written a much more detailed explanation of the Court's decision.  That explanation can be found here.  The full Third Circuit decision can be found here. 

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The FCC adopted rules for the digital operation of FM radio stations (known as HD Radio or the Ibiquity In Band On Channel system - IBOC for short) in 2007 and allowed the Media Bureau to amend those rules as technical developments warranted.  In 2010, the Bureau authorized an increase in the power level of the digital portion of the FM signal by 6 db in all cases, and up to 10 db upon a showing that such an increase would not cause significant interference to adjacent channel stations (see our summary here). As the digital signal is carried on "sidebands" of the analog signal, which operate on part of a station's assigned  frequency that is closer to adjacent channel radio stations, an increase in power on these sidebands has the potential for causing interference to closely spaced stations.  In a Public Notice released today, the FCC asked for comments on whether it should allow stations to increase power at different levels on each sideband.  As set out by the Bureau, in some situations, a station may be closely spaced to another station on one side of its frequency, on a channel either higher or lower than the one on which the station operates, but not on the other side of its channel.  By increasing power on only the sideband furthest from the adjacent channel station, the station can protect the adjacent channel station, yet still enjoy the possibility of expanded coverage that the higher power provides.

As set forth in the Notice, this proposal is advanced by Ibiquity (the company that holds the patent on the digital radio system) and NPR, which has been very active in promoting its use.  According to studies that they have produced (and which are linked to in the public notice), a digital operation with greater power to one sideband than another is technically possible.   The FCC asks if it is a good idea, and gives interested parties 21 days to file comments (measured from the date that this notice is published in the Federal Register) and an additional 14 days to file replies to the initial comments.  In the past, we have found digital radio operations to be among the most controversial topics about which we write, with some who feel that the system is not working and will never work, and others who see much promise in the digital sound and multiple channels allowed by the system.  We look forward to seeing the comments filed in this proceeding, to see whether these attitudes continue to persist within the industry.

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