Broadcast Law Blog

The Commission today published notice in the Federal Register revising the dates for submitting comments in its rule making "In the Matter of Promoting Diversification of Ownership in the Broadcasting Services."  If you will recall, this is the rule making proceeding that seeks comment on a number of new proposals, including whether to revise the definition of "Designated Entities", possibly expanding the FM band to include TV channels 5 and 6, possibly adopting rules to allow AM expanded band stations to retain those stations or transfer them to Designated Entities, and whether Class A LPTV stations should be afforded must-carry rights on cable systems. 

Although the FCC had initially pegged the comment date at July 15th when it first published notice a couple of weeks ago, apparently that date was a miscalculation.  Thus, the dates for commenting have now been revised, and Comments in the proceeding are now due on or before June 30, 2008, and Reply Comments are due on or before July 14, 2008.  This means that interested parties have a couple of weeks less than initially thought to prepare and file comments in this proceeding, so start drafting now.  See our earlier summary of this proceeding for more information.  A copy of today's Federal Register notice can be found here. 

Posted By Brendan Holland In AM Radio , EEO Compliance , FM Radio , FM Translators and LPFM , Low Power Television/Class A TV , Multiple Ownership Rules | Permalink | 0 Comments | Email entry

In recent months, the broadcast industry has experienced one of the most active periods of regulatory activity in recent memory. Since November, the FCC has adopted enhanced disclosure obligations concerning the public interest programming of television broadcasters and requirements for an on-line public inspection file; rejected most calls for increased deregulation of broadcast ownership (allowing only the cross-ownership of broadcast stations and newspapers in the largest markets); established specific prohibitions against advertising practices that involved “no Spanish, no urban dictates”; placed mandatory disclosure obligations on television broadcasters in connection with promotion of the DTV transition; proposed rules that could favor low power FM stations over improvements in full-power broadcast services and existing FM translator licensees; and proposed sweeping regulation of broadcasters which could potentially require specific amounts of nonentertainment programming by all stations, restrict the flexibility of broadcasters' location of their main studios, require 24-7 live staffing for all stations that operate on that basis, and perhaps even evaluate the music selection process of radio operators. Rumored to be in the offing are proposals to regulate embedded advertising, to adopt enhanced rules on sponsorship identification in connection with video news releases and payola-like practices, and perhaps even expand EEO reporting requirements (as the FCC recently asked for public comment on the employee-classification information for its long-suspended requirements for the filing of FCC Form 395 – the Annual Employment Report in which stations categorize all their employees by their employment duties, race and gender). And Congress has not been idle, with proposals introduced for the adoption of a performance royalty on over-the-air radio for the use of sound recordings, hearings about potential restrictions on prescription drug advertising, and a proposal to roll back the limited ownership reform adopted by the Commission in December.

With all this activity in a six month period under a Republican administration with a Republican majority on the FCC, during a time of great turmoil in the broadcast industry itself, as television prepares for the digital transition and broadcast revenue growth is slow or nonexistent (based on a variety of factors including general economic conditions and competition from the plethora of new media choices), many broadcasters are wondering what’s going on? And some fear even more changes could come about in any new administration that may come to Washington after the November elections, no matter what the result of that election. The one candidate with the most experience in the regulation of broadcasting, Senator McCain who has chaired the Senate Commerce Committee which regulates the broadcast industry, has by no means been a captive of the broadcast industry – leading efforts to enhance the use of LPFM and at one point pushing a spectrum tax proposal for television broadcasters for the use of the digital spectrum.

Posted By David Oxenford In Advertising Issues , Digital Television , EEO Compliance , FM Translators and LPFM , General FCC , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 3 Comments | Email entry

Just over a week ago, the FCC decided to freeze the dismissal of FM translator applications of applicants who had more than 10 applications still pending at the FCC.  As we have written, the FCC had ordered all applicants in the 2003 FM Translator filing window to dismiss all but 10 of their remaining applications.  The Commission took this action in response to the request of advocates of Low Power FM (LPFM) stations, who argued that the numerous pending translators blocked too many opportunities for new LPFM stations.  While translator applicants opposed the Commission's action, and filed Petitions for Reconsideration of that decision and a request for stay of the deadline for selecting the applications for dismissal, the deadline for selection of the applications to be dismissed came and went.  Only after that deadline did the Commission issue a Public Notice announcing that it would not process the dismissal requests until it resolved the pending Reconsideration petitions. 

While the dismissals of applications by parties with more than 10 applications have been frozen, the processing of applications filed by other applicants will be allowed to go forward. So, presumably, unless these applications are mutually exclusive with some of the frozen applications, we will see some new translator applications processed and granted, and perhaps even settlement windows opened in cases where there are mutually exclusive applications by parties with less than 10 applications pending.  For all other applicants, either applications by those with more than 10 pending applications or applications which are mutually exclusive with such applications, they will remain pending until the Reconsideration requests are resolved.  So we should, at long last, see at least some new FM translator applications processed and granted in the near future.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 2 Comments | Email entry

In November, the FCC adopted an Order limiting to 10 the number of FM translators from the 2003 translator filing window that a single applicant could pursue.  This Order was adopted by the Commission at the urging of LPFM advocates who believed that the large number of FM translator applications filed in 2003 foreclosed some opportunities for new low power FM stations (see our description of the Order here).  Last week, the FCC released a Public Notice telling translator applicants to choose which 10 applications that they will continue to prosecute.  Applicants have until April 3 to make that choice and notify the Commission of their choice.  If no choice is made by that date, the FCC will continue to process the first 10 applications that were on file, dismissing any remaining applications by that applicant.

The Commission is expecting to then continue to process the remaining applications, opening a settlement window after the dismissal process is complete so that the remaining applicants can sort out possible engineering solutions or other settlements that would resolve conflicts between remaining mutually exclusive applications.  However, there are a number of Petitions for Reconsideration that were filed against the Order establishing the 10 application limit (including one filed by our firm on behalf of a number of clients).  We'll see if the Commission takes any action on the Reconsideration petitions (and an accompanying Petition for Stay of the selection deadline) or if the Commission marches on and continues to process these applications.  For now, applicants should be ready to make their selections on or before April 3.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 0 Comments | Email entry

Federal Register publication of the Further Notice of Proposed Rulemaking on Low Power FM (LPFM) stations and their relationship to FM translators and upgrades of full-power FM stations occurred today.  This sets the comment dates in that proceeding - with comments due April 7, and replies on April 21.  This proceeding looks at technical issues of whether LPFM stations (which were originally authorized as secondary stations, subject to being knocked off the air if they caused interference to full-power stations (including new stations or increases in the facilities of existing stations), should be protected against interference from such new FM facilities.  Also, the proceeding looks at whether LPFM should get a preference over FM translators, perhaps even being able to bump existing FM translators off the air to make way for new LPFM stations.  We wrote more about this proceeding, here.  FM station and FM translator licensees should be sure to file comments with the FCC on how this proceeding could affect their operations.

Posted By David Oxenford In FM Radio , FM Translators and LPFM | Permalink | 2 Comments | Email entry

The Commission's Localism Report and related Notice of Proposed Rule Making seeking comment on a slate of proposed new rules has been published in the Federal Register.  Accordingly, Comments in this rule making proceeding must be filed with the Commission by March 14 and Reply Comments must be filed by April 14.  This is a very short period of time in which to comment on a number of significant proposals that are poised to return the broadcast industry to the regulatory structure of the 1980s.  As we reported earlier, the Commission proposes to re-regulate broadcast stations, and the NPRM suggests a number of substantive rule changes, such as effectively re-instating ascertainments, eliminating the unmanned operation of broadcast stations, imposing quantitative programming requirements, and requiring that main studios be maintained within a station's community of license.  This NPRM proposes a number of potentially burdensome requirements, many of which were eliminated by the Commission long ago, and many of which go beyond what the FCC has ever required.

Given the potential impact that the FCC's proposed rules could have on broadcast stations, broadcasters are encouraged to file comments in this important rule making proceeding. 
Comments can be filed with the Commission in paper or electronically through the FCC’s Electronic Comment Filing System.  When submitting comments, commenters should be sure to reference the docket number for this rule making, MB Docket No. 04-233.  

Posted By Brendan Holland In AM Radio , Digital Television , FM Radio , FM Translators and LPFM , General FCC , Programming Regulations , Public Interest Obligations/Localism , Television | Permalink | 0 Comments | Email entry

Last week, we published a note that the FCC had published the new rules on Low Power FM (LPFM) stations in the Federal Register, starting the comment period on the issues raised in the Further Notice of Proposed Rulemaking in that proceeding - principally addressing the relationship between LPFM stations and FM translators and improvements in full power FM stations.  But we were wrong about the comment date.  In an unusual action, the Federal Register publication only contained that portion of the FCC's order actually adopting new rules on ownership and transferability of LPFM stations, limiting the number of FM translator applications that one entity can process from the 2003 filing window, and announcing interim processing rules with respect to situations where interference to an LPFM station would be caused by upgrades to FM stations.  The section of the document which constitutes the Further Notice of Proposed Rulemaking were omitted from the Federal Register publication, even though it had been acted on simultaneously with the new rules that are going into effect, and even though the language dealing with the Further Notice was released together with the new rules, in a single document back in early December.

So the comment date on the relationship between LPFM stations, FM translators and the upgrades of full-power stations remain to be set - watch for the date to be set soon. 

Posted By David Oxenford In FM Radio , FM Translators and LPFM | Permalink | 0 Comments | Email entry

[Correction 1/24/2008- we have published a correction to this entry, here, noting that the Federal Register publication described below contained only half of the FCC's order in its LPFM proceeding, omitting the portion seeking public comment.  That section of the order will apparently be published in the Federal Register at a later date - so the February 19 comment date set out below is incorrect.  Everyone has more time to prepare their comments.  The actual filing date will be set in the future.]

The FCC Order establishing new rules for Low Power FM (LPFM) Stations was published in the Federal Register on January 17.  This sets the date of February 19 for the filing of comments on the question of the relationship between LPFM stations and both FM translators and full-power FM stations.  These comments will address two issues, (1) whether LPFM stations should remain secondary stations, subject to being knocked off the air by new full-power FM stations and (2) whether LPFM stations should get some sort of priority over some or all FM translator stations.

LPFM stations have been "secondary" stations, meaning that they could be knocked off the air when a new FM station came on the air, or when improvements to the facilities of an existing FM station were constructed, if the new full-power FM facilities would be caused interference from the existing LPFM station.  As we wrote here, at its November meeting, the FCC decided that it needed more information to determine whether LPFM stations should continue to be secondary to new or improved FM stations.   While not reaching a final determination on that issue, the FCC adopted temporary processing policies which essentially force the full-power stations to deal with LPFM operators in cases where such interference arises - potentially blocking improvements in the facilities of a number of FM stations. 

Posted By David Oxenford In FM Radio , FM Translators and LPFM | Permalink | 1 Comments | Email entry

At last Tuesday's FCC meeting, the Commission adopted a controversial order, over the objection of two Commissioners, that could limit the processing of some applications for improvements by some full power FM stations, and would restrict translator applications, all in the name of encouraging Low Power FM (LPFM) stations to provide outlets for expression by groups that cannot get access to full-power radio stations (see our summary of that action here).  In recent weeks, two ideas have received some publicity providing an alternative outlet for these prospective local broadcasters - and both provide a simple solution (one more immediate and ad hoc than that other), but both leading to the same result - why not just extend the FM band by using TV channel 6?

The current FM band begins at 88.1 MHz, a channel that is actually immediately adjacent to TV Channel 6.  The FCC has for years restricted operations of noncommercial FM stations (which operate from 88.1 to 91.9 on the FM dial) in areas where there are Channel 6 TV stations in order to prevent the radio stations from creating interference to the reception of the TV stations.  That's while you will often find fewer noncommercial stations, or ones with weaker coverage, in communities that have TV Channel 6 licensees.  TV stations use an FM transmission system for their audio.  Thus, you will also find that most FM receivers (especially ones without digital tuners) will pick up the audio from TV channel 6 if tuned all the way to the left of the dial.  The short-term solution to expanding the FM band came from one broadcaster who noted that fact.

Posted By David Oxenford In Digital Television , FM Radio , FM Translators and LPFM , Low Power Television/Class A TV | Permalink | 2 Comments | Email entry

In an unusually contentious FCC meeting, the FCC adopted rules that promote Low Power FM ("LPFM") stations seemingly to the detriment of FM translators and improvements in the facilities of full-power FM stations.  While no formal text of the decision has yet been released, the Commission did release a Public Notice summarizing its action.  However, given the lack of detail contained in the Notice as to some of the decisions - including capping at 10 the number of translator applications from the 2003 FM translator window that one entity can continue to process and the adoption of an interim policy that would preclude the processing of full-power FM applications that created interference that could not be resolved to an existing LPFM station - it appears that the Press Release was written before these final details were determined.  And given that the two Republican Commissioners dissented from aspects of this order supported by their Chairman (and also dissented on certain cable items considered later in the meeting), one wonders about the process that resulted in the Republican chairman of the FCC voting with the two Democratic Commissioners on an item that in many respects favors LPFM stations to the detriment of existing broadcast operators.

In any event, specific decisions mentioned in today's meeting include:

• Treating changes in the Board of Directors of an LPFM station as minor ownership changes that  can be quickly approved by the FCC
• Allowing the sale of LPFM stations from one non-profit entity to another
• Tightening rules requiring local programming on these stations
• Maintaining requirements that LPFM stations must be locally owned, and limiting groups to ownership of only one station
• Limiting applicants in the 2003 FM translator window to processing only 10 pending applications each, and requiring that they decide which 10 applications to prosecute before any settlement window opens (the two Republican Commissioners favored allowing applicants to continue to process up to 50 applications)
• Adopting an interim policy requiring that full-power FM stations that are improving their facilities in such a way that their improvement would interfere with an LPFM station to work with the LPFM to find a way to eliminate or minimize the interference.  If no resolution could be found, the full-power station's application would not be processed (which we have expressed concerns about before)
• Urging that Congress repeal the ban on the FCC making any changes that would eliminate protections for full power stations from third-adjacent channel interference from LPFMs

Posted By David Oxenford In FM Translators and LPFM | Permalink | 0 Comments | Email entry

The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27.  The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling - including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations.  The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business - even though comments on the Commission's proposals on this matter were received just a month ago.

First, the Commission is to release an Order on Low Power FM.  We have written about some of the issues that could be decided previously - including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).

On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators.  We wrote about the proposals - made as part of the Commission's DTV proceedings (though to be applicable to all TV stations), here.  Proposed rules included the standardization of quarterly issues programs lists, making station's public fies available on the Internet, and quantifying other public interest obligations. 

Posted By David Oxenford In EEO Compliance , FM Translators and LPFM , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

The FCC's proposal to allow FM translators to rebroadcast the signals of AM stations as a fill-in service has been published in the Federal Register setting the dates for comment.  Comments in the proceeding will be due by January 7, 2008, with Reply Comments due on or before February 4, 2008.  As we wrote back in August (available here), the Commission's rule making proposes to allow FM translators to rebroadcast the signal of AM stations - and potentially to originate programming during those nighttime hours when a daytime-only AM station is not permitted to operate.  The proposal is to permit AM stations to operate FM translators in an area that is the lesser of a circle 25 miles from their transmitter site or within their 2 mv/m daytime service contour.  In proposing the changes in its rules, the Commission raised a number of questions on which it seeks public comment, including whether the proposal is in the public interest, whether there should be a cap on the number of translators an AM station can employ, and whether an extension beyond the AM station's 2 mv/m contour should be permitted.  Please see the FCC's Notice of Proposed Rule Making or our earlier blog entry for further information.  Comments can be filed with the Commission in paper or electronically via ECFS, and should refer to MB Docket No. 07-172.

Posted By Brendan Holland In AM Radio , FM Radio , FM Translators and LPFM | Permalink | 0 Comments | Email entry

As the Commission held its last localism hearing in Washington on Halloween night, FCC Chairman Kevin Martin's views on how the FCC should insure that stations are responsive to their communities became somewhat clearer.  In his opening statement, the Chairman outlined a set of actions that could be taken by the FCC to insure more service to the public.  While emphasizing the importance of efforts to encourage new entrants into broadcast ownership, the Chairman's proposals to add new regulatory requirements, including requiring that a station be manned during all hours of operation, may well have the result of making it more difficult for any new entrant (or for existing smaller operators) to profitably operate their stations.  In addition, he has offered proposals that would seemingly require cable and satellite carriage of in-state television stations not in a system's DMA - a proposal sure to cause concern to stations in DMAs that straddle state lines.

The Chairman's statement includes the following proposals:

• Requirements for uniform filings by broadcasters quantifying their public service - presumably their news and information programming and the public service announcements that they provide
• Requiring that stations have manned main studios during all hours of operations (not just during business hours)
• Allowing flexibility for LPFM stations to be sold, but adopting new rules to insure that such stations are used for local programming, not something provided from a network or other programming source
• Providing television viewers the ability to get an in-state television stations on cable and satellite even if the county in which they reside is "home" to a DMA with stations in another state
• Capping the number of applications accepted from the 2003 FM translator filing window - which might result in the dismissal of hundreds of applications that have effectively been frozen for 4 years

Posted By David Oxenford In AM Radio , Cable Carriage , Emergency Communications , FM Translators and LPFM , Public Interest Obligations/Localism | Permalink | 1 Comments | Email entry

Last week, FCC Chairman Kevin Martin was quoted in several trade press reports as having told the House Small Business Committee that his office was working on an item to be circulated among the other commissioners that would ensure low power FM ("LPFM") stations "would have reasonable access to limited radio spectrum."  So what does this mean?  As we wrote recently, the FCC seems to be delaying the processing of some applications for modifications of full-power FM stations because those applications would create interference which would knock an LPFM station off the air.  The FCC is currently looking for ways to preserve the LPFM.  We've expressed concerns that this action could be a precursor to the resolution of a pending rulemaking proceeding which asks whether the protection of LPFM stations by new full power stations or ones seeking upgrades should be mandatory.  Could the Chairman's statements provide an indication of where that proceeding is going?  If so, it would be bad news for full-power FM stations.

The adoption of such an order would also raise questions of how the FCC will deal with conflicts between LPFM stations and translators.  The same proceeding that asked whether LPFM stations should be protected from increases in power by full-power stations also asked whether LPFM should have a preference over FM translators, even suggesting that a new LPFM could knock an FM translator off the air.  Given the broad investment across the country in translators and the unique service that they provide in both rural and more urban areas, often importing unique noncommercial channels, would the additional localism provided by LPFM justify the change in FCC policy?  We may well see how the FCC balances these competing interests in the near future. 

Posted By David Oxenford In FM Radio , FM Translators and LPFM | Permalink | 0 Comments | Email entry

On an NAB Radio Show panel that included the news that LPFM licenses are, in some cases, holding up the processing of certain FM applications while solutions to potential interference to the LPFM station are sought (see out post here), a representative of the Audio Services Division of the FCC's Media Bureau also revealed that the FCC is routinely accepting and processing requests for special temporary authority to allow AM stations to rebroadcast their signals on FM translators.  Such STA requests must follow the guidelines that are contained in the Commission's Notice of Proposed Rulemaking that would authorize such use on a permanent basis (see out summary of that proposal here). We have seen some of these requests already granted.

So, AM broadcasters interested in FM translators should start looking for translator stations to use for such purposes realizing, of course, that any FCC authority is temporary and could be overturned when the FCC ultimately makes its final decision in the rulemaking proceeding.  There is no window for the filing of new applications, so an AM licensee seeking to use the STA process must find an existing translator to use for this purpose.  But the opportunity is there, and AM broadcasters can take advantage of it.

Posted By David Oxenford In AM Radio , FM Translators and LPFM | Permalink | 0 Comments | Email entry

During a panel at the NAB Radio Show, FCC Audio Services Division Chief Peter Doyle was asked a question about the processing of FM applications filed under the new simplified process for upgrades in their technical facilities and for changes in their cities of license (see our post here for details about that process).  The question dealt with rumors that the processing of certain FM applications were being delayed if the proposed upgrade would cause interference problems to any LPFM stations which would threaten their existence.  We have written about our concerns that such a policy was possible, here.  According to the response yesterday, these delays are indeed taking place - meaning that LPFM stations that are supposed to be secondary services which yield to new or improved full-service stations are now blocking improvements in the facilities of these full-power stations.

Doyle explained that, at the moment, there is no policy of denying the full-service station's application - but these applications are being put on hold if they would impede an LPFM's ability to continue to operate in order to study options as to how the LPFM service might be preserved through a technical change or through agreements to accept interference.  While no final determination has been reached as to what will happen to the applications if there is no available resolution to the LPFM interference issue, he pointed to the pending rulemaking (pending for almost two years) that would give LPFM's higher status, and in effect allow them to preclude new or improved full-service operations.  There was some indication that these actions were being taken pursuant to the potential policies set out in that Notice of Proposed Rulemaking - even though these policies were simply proposals advanced for public comment and have not yet been adopted by the full Commission.

Posted By David Oxenford In FM Radio , FM Translators and LPFM | Permalink | 0 Comments | Email entry

At today’s Future of Music Policy Summit in Washington, DC, there has been much talk about issues of interest to broadcasters, including the performance right in sound recordings for terrestrial radio, multiple ownership, and many other issues. The Future of Music Coalition, whose website is here, is dedicated to bringing the voice of musicians and the public to Congress and other decision-makers in Washington. Thus, the Coalition is involved in music issues before Congress and the Copyright Office, as well as before the FCC and other agencies on issues including multiple ownership, net neutrality, and similar matters. Members of the Coalition have been involved in the Low Power FM debate. At the panel session titled "The Hill Was Alive with the Sound of Music," dealing with legislative matters affecting music that are pending or which may arise before Congress, only one issue was perceived as being likely to be considered and potentially resolved by this Congress, before the Presidential election.  That was the issue of LPFM, where bills have been introduced in Congress to eliminate the restrictions that prohibited LPFM stations from causing third-adjacent channel interference to other stations.

The panel included staffers from both the House of Representatives and the Senate, who both indicated that, while there were many other issues of importance to those in the music industry that might be considered this year, LPFM was the one issue that had a chance of actually being adopted this year, given bipartisan support for pending bills.   The pending legislation, The Local Community Radio Act of 2007, has been introduced in both the House and the Senate.  This legislation would lift restrictions on interference to third adjacent channel stations - restrictions which were adopted by Congress about 7 years ago.  We wrote about this legislation, here.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 0 Comments | Email entry

The FCC late today released its long-awaited Notice of Proposed Rulemaking proposing to allow FM translators to rebroadcast the signal of AM stations - and potentially to originate programming during those nighttime hours when a daytime-only AM station is not permitted to operate.  The proposal is to permit AM stations to operate FM translators in an area that is the lesser of a circle 25 miles from their transmitter site or within their 2 mv/m daytime service contour.  In proposing the changes in its rules, the Commission raised a number of questions on which it seeks public comment.   These include the following:

• Is allowing the rebroadcast of AM stations on FM translators in the public interest?  What would its impact be on other stations including AM and FM stations, as well as LPFM stations?
• How many translators should each AM station be permitted?
• Should daytime-only AM stations be allowed to originate programming on an FM translator during hours when they have no programming to rebroadcast?
• Should the FCC permit AM stations to begin operating translators all at once - or should the use of these translators be phased in - perhaps permitting daytimers or stations with minimal nighttime power to operate translators first for some transitional period.
• Should there be a restriction on an AM station's use of an FM translator if the AM is co-owned with an FM station in the same market?
• Can an AM station "broker" time on a translator to provide the type of service proposed in this proceeding?

In addition to these operational issues, the FCC poses a few technical issues about these operations.  These include:

• Should any extension beyond the 2 mv/m contour be permitted?  If so, how much and in what circumstances?
• How should the 2 mv/m contour be calculated - using standard FCC predictions, or allowing the measurement of the actual reach of that signal?
• Should the 25 mile zone be extended to 35 miles in Zone II (essentially the less populated areas of the country)?

Comments on the Notice will be due 60 days after publication in the Federal Register, with replies due 30 days later.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 4 Comments | Email entry

Despite rules that generally prohibit the assignment or transfer of a low power FM (LPFM) authorization, the FCC today granted a waiver of its rules and allowed Shenandoah County (Virginia) Public Schools (SCPS) to assign an unbuilt LPFM construction permit to Christian Leadership Ministries (CLM).  This action comes on the heels of a Congressional push to authorize more LPFM stations and may signal a loosening of restrictions pertaining to LPFM stations generally.  In today's decision, the FCC stated that the assignment would "advance the goal of maximizing spectrum use for the LPFM service," since CLM committed to complete construction and commence on-air operation.  Furthermore, the $1000 consideration paid by CLM was less than the costs incurred by SCPS for the engineering consultant who prepared its initial application, so the parties could certify that SCPS would not profit from this transaction.  Based on these factors, and the fact that the buyer was otherwise to qualified to hold an LPFM license under applicable FCC rules as it was a nonprofit and local entity, the FCC granted the waiver and approved the transaction.

The Commission mentioned in a footnote that "[n]o LPFM filing window is currently scheduled to take place."   One can only wonder whether allowing assignments of unbuilt LPFM permits may be a backdoor means of placating those who are clamoring for more LPFM stations until such time as the FCC opens another window.

Posted By David Silverman In FM Translators and LPFM | Permalink | 0 Comments | Email entry

In the last week, several new LPFM issues have arisen – one a Congressional push to authorize more of these stations by ignoring third adjacent channel interference to full power stations, and another involving complaints to the FCC about LPFM stations being forced to change channels or cease operation because of interference from changes made by full power stations. The latter issue has apparently arisen in the context of stations taking advantage of the FCC’s rules which made it easier to effectuate changes in the cities of license of FM stations (see our summary of the rule changes here), causing more movement of such stations. Both of these issues could present issues for FM broadcasters. 

The Congressional action was initiated by the introduction of legislation in both the House and the Senate that would eliminate third adjacent channel protections that full power stations have from LPFMs. Those protections have been the subject of controversy since the FCC authorized the LPFM service.  LPFM advocates have contended that the interference protections are unnecessary, as most FM receivers should be able to distinguish between stations on third adjacent channels. The NAB contends that the protections are needed as there are still many radios that would be affected by that interference. Full power stations, except for those authorized at short-spacings prior to 1964, are protected from third adjacent channel interference from each other. Competing engineering studies have been done, the FCC has not acted on this question (and in fact Congress had prohibited such action years ago).  But now, some feel that the time for some liberalization of the rules is in order.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 0 Comments | Email entry

Two long awaited broadcast items seem to be missing in action at the FCC. Both the final rules on digital radio ("HD radio") and the Commission’s Notice of Proposed rulemaking on using FM translators to fill in gaps of the signals of AM stations, while expected quite a while ago, have still not been released by the FCC. The digital radio item, adopting rules on digital radio, eliminating the need to file for experimental authority for multi-channel FM operations and allowing AM stations to operate digitally at night, was adopted by the FCC at its meeting in March, yet the final text of the decision still hasn’t been released.  As the text has not been released, the effective date of the new rules has not been set.  Those AM stations ready to kick on their nighttime digital operations continue to wait.

As we explained in our previous posting on this matter, here, the digital radio order also contains a Further Notice of Proposed Rulemaking, addressing issues such as the public interest obligations of broadcasters on their multicast digital channels. That was one of the items that was supposedly delayed the action that finally occurred at the March meeting, and perhaps it is delaying the release of the text of the order in this proceeding

Posted By David Oxenford In Digital Radio , FM Translators and LPFM | Permalink | 0 Comments | Email entry

As we wrote on Friday, the Copyright Royalty Board released to the parties their decision setting the sound recording music royalties for Internet radio for the years 2006-2010 - and the rates will be increasing significantly (absent success on appeal or in settlement discussions). The rates and appeal process are set out in our post on Friday.  The parties have until Monday, March 5 at noon, to request that the Board keep portions of the decision that contain confidential proprietary information out of the public record. Thus, the text of the decision is not yet public. Nevertheless, many parties are asking for more specific information about the decision and its impact. Certainly, when the decision is public, everyone will want to make their own judgments. But, until that time (which should be soon as the Board was careful to avoid using any significant amount of confidential information), I offer some observations about the decision (from my vantage point as a party who represented some of the webcasters involved in the proceeding), as well as thoughts on some of the questions that I have seen posted on various discussion boards this weekend.

First, it is essential to understand exactly what this decision covers. The Board’s decision covers only non-interactive webcasters operating pursuant to the statutory license. Our memo, here, discusses the statutory licensing scheme, and what a webcasting service must do to qualify to pay the royalties due under this statutory license. Essentially, a webcaster covered by this decision is one which operates like a radio station – where no listener can dictate which artists or songs he or she will hear (some limited degree of consumer influence is permitted, but a webcaster must comply with the restrictions set out in our memo).  Also, the webcaster cannot notify their listeners when any specific song will play. The decision does cover the Internet transmissions of the over-the-air content of most broadcast stations. 

The royalties are paid to SoundExchange – a nonprofit corporation with a Board made up of representatives of artists and the record companies. The royalties go to the copyright holders in Sound Recordings and the performers on those recordings ( the copyright holder is usually the record label. Royalties are split 50/50 – and the artist royalties are further divided 45% to the featured artist and 5% to any background musicians featured on the recording). 

The decision by the Board was the result of a long proceeding – which began in 2005. A summary of the proceeding can be found in our posting, here. Satellite radio also has to pay similar royalties, as do services that provide background music to businesses ("business establishment services"). Separate proceedings are underway to determine rates for these services.

With that background – here are some more thoughts on the decision – obviously in very summary form. The Board is charged with determining the royalty rates that would be determined by a willing buyer and a willing seller in a marketplace transaction. The Board was clear in the decision that it would look simply for evidence of what such a deal would be – it would not look at policy reasons why certain groups of webcasters (including small commercial webcasters or noncommercial webcasters) should get some special rate.

Posted By David Oxenford In FM Translators and LPFM , Intellectual Property , Internet Radio , Multiple Ownership Rules , On Line Media | Permalink | 20 Comments | Email entry

At yesterday's NAB Leadership Conference in Washington, FCC Commissioner Robert McDowell stated that he thought that broadcasters would be pleased with the outcome of the Commission's action on the NAB proposal to allow AM stations to use FM translators to fill in holes in their coverage, or to provide nighttime coverage for daytime stations.  The Commissioner said that the proposal was working its way through the FCC.  While he would not commit to a date when action could be expected, he thought something should come out soon.  In the interim, the FCC has granted at least one AM Station Temporary Authority to use an FM translator to rebroadcast its signal - apparently as a result of a Congressional request. 

We wrote, here, about the NAB proposal when it was first advanced back in August.  Broadcasters then had hopes for quick FCC action.  While it is good news that the FCC seems to be moving on the NAB proposal, broadcasters should not think that relief for all AM stations is coming soon.  Instead, the FCC will simply release a Notice of Proposed Rulemaking, opening a formal comment window in which parties can state their support for the proposal.  There may be others who oppose the proposal - particularly the supporters of Low Power FM stations.  Given that the FCC already has an open proceeding dealing with the relationship between FM translators and LPFM stations, the proposal to give AM operators FM translators will have to be linked in some way to this other proceeding.  And, were the FCC to decide that LPFM stations have a priority over FM translators, any victory for AM stations might be hollow, as LPFM stations could preclude the operation of many FM translators.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 0 Comments | Email entry

Two recent FCC cases set confusing and perhaps dangerous precedents for the use of Low Power FM stations.  In one case, the FCC allowed a pirate operator that they had shut down for an illegal operation to then resume operations under Special Temporary Authority (apparently following Congressional intervention).  In another case, where protests were lodged about the sale and probable format change of a noncommercial station, the FCC directed the opening of a special filing window for an LPFM in that community to provide a replacement service.  While the motivation of the FCC in each case may have been laudable, do these cases establish expectations on the part of other similarly situated parties that cannot be met in future cases?

According to a news article, the FCC, at the urging of Senator Harry Reid, the Senate Majority Leader, authorized a pirate radio station to continue operations under Special Temporary Authority until the next low power FM application window opens.  After first shutting the station down for operating without a license, the FCC then permitted the station to resume operations to provide a local service to a small Nevada community.  According to the article, the expectation is that the operator would file for a permanent license once the FCC opens a window for filing applications for new Low Power FM stations.  While service to the Nevada community may be laudable, doesn't this decision encourage others to start pirate stations in unserved communities, and then ask that their service be permitted to continue under temporary authority if the FCC finds them and shuts them down?  And even if the FCC would allow such operations, these process puts the parties operating at risk, as they may continue to operate stations, and then they may face a competing applicant during the next LPFM window.  Under the FCC's policies for picking between mutually exclusive applicants, the established party could still end up not being the preferred applicant, and would have to shut the station down - taking away a service that the STA has allowed to become even more established in the community. 

Posted By David Oxenford In FM Translators and LPFM , General FCC | Permalink | 0 Comments | Email entry

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. 

Posted By Brendan Holland In AM Radio , FM Radio , FM Translators and LPFM , General FCC | Permalink | 0 Comments | Email entry

Comments are due to be filed with the FCC by this Thursday, August 24, on the NAB's proposal to allow AM radio stations to use FM translators to fill in nulls in their coverage.  Particularly for AM stations with very directional patterns, or with authorizations that specify little or no nighttime coverage, this proposal could provide an excellent way for these stations to maximize service to their listeners.  The NAB is making the filing of comments easy through an electronic filing system available on its website here.

While it is important for those supporting this proposal to file comments to urge the FCC to consider it, this is but the first step in a long process before this proposal can become reality.  The FCC here is asking only for comments on the NAB's Petition for Rulemaking.  If the FCC finds merit in the NAB proposal, then it would have to draft its own Notice of Proposed Rulemaking to suggest rules that would govern the use of such translators.  After taking comments on the Notice, if the FCC is still convinced that the idea is a good one, the Commission would then have to draft a set of final rules and an order adopting those rules.  Thus, in the best case, this is a long process.

Posted By David Oxenford In FM Translators and LPFM | Permalink | 2 Comments | Email entry