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At the NAB Radio Show in Dallas in September, FCC Commissioner Pai promised that the FCC would take action to revitalize the AM band (see our story here). For years, AM has suffered a gradual erosion in listening, as interference on the band has increased – not necessarily from other AM stations, but instead from background noise that is now part of the environment in most urban areas. This interference is caused by everything from fluorescent lights to plasma TV screens to various other electronic devices that are prevalent in the modern world. At the NAB Show in Las Vegas the week before last, Commissioner Pai reprised his discussion of AM improvements, this time moderating a panel of experts to discuss the potential remedies to the problems faced by the AM radio service. So just what remedies may be possible?

The panel set out several possible solutions to AM interference issues, all of which have potential downsides or problems. These include the following:

• — More FM translators for AM stations
• — Blanket power increases for all AM stations
• — A reduction in skywave protection
• — The adoption of a cellular architecture for AM stations
• — All-digital operation for AM stations

Let’s look at each of these options below.

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The care and feeding of the broadcaster's public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations' files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I've conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.

The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children's television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station's compliance with the Children's television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.

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Moving a station from a rural area into a more urban one was a fairly common occurrence until the recent recession – when the value of new "move-in" stations in many larger markets essentially collapsed. Soon after the collapse, the FCC stepped in to stop what the marketplace had already severely slowed, by effectively prohibiting the practice of moving stations into urbanized areas.  In its Rural Radio Order (which we summarized here), the Commission adopted “presumptions” that eliminated preferences that applicants had received for proposing a new service to large suburban communities, and preferences based solely on the number of people that a modified station would serve. A number of parties (including ones that I represented), sought reconsideration of the FCC’s order, challenging both the theory of the FCC order and some of the details. On Friday, the FCC issued its order on reconsideration, denying any fundamental changes in the policy, but clarifying some of the details of the showings to be made in evaluating city of license changes for broadcast stations, and also grandfathering under the old rules more of the applications that were pending when the new rules were adopted.

Before discussing the changes, it is worth reviewing the Commission’s processes for deciding which of competing proposals for new FM channels in different communities should be granted, and whether the change in the city of license of an existing station is in the public interest. These choices are governed by Section 307(b) of the Communications Act and the substantial case law that has built up at the FCC around that section. Section 307(b) requires that the Commission make a “fair, efficient and equitable” distribution of radio service among the states and communities. Over the years, the FCC has adopted standards for determining how to make this distribution – favoring applications that propose a “first local reception service” (or service to “white areas” – those that currently receive no predicted service from other stations), net favoring a second reception service, next giving a preference to those providing a “first transmission service” (i.e. a first station licensed to a community). Finally, if none of the preceding preferences come into play, the Commission looks at “other public interest factors” – usually the total population served by a proposal, including an evaluation of the other services from other stations available in both the gain and loss area of a proposed facility move (or in the proposed coverage areas of the new allotments that the Commission is evaluating). 

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At the NAB Radio Show, Commissioner Ajit Pai delivered an address discussing a number of topics, including a proposal for the FCC to undertake a study of AM radio and to come up with a plan to make that service more competitive. We cover many topics here on the Broadcast Law Blog, and often write about changes in service for FM radio and television, as well as the digital media, but it seems that our coverage of AM mirrors the FCC’s attention to the service in the last few years – relegated primarily to situations where struggling AMs run on a shoe string budget run into the FCC’s Enforcement Bureau because of some significant violation of the Commission’s rules. So what did Commissioner Pai propose, and is it realistic to expect real reform of the AM service?

The mere fact that the Commissioner proposed a study, and one to be completed in just over a year, is in and of itself encouraging. The NAB has been internally conducting a similar study, though no results have been released yet. The AM band has suffered from many problems, including a decrease in the quality of AM receivers as FM has become much more dominant, and the increase in background “noise” creating interference to AM service – all sorts of electronic devices that are now so common everywhere, including many of the lights now used both indoors and outdoors, create interference to the AM service that make listening, especially in most urban areas, difficult. So what can be done?

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When building a new radio station, the FCC gives broadcasters three years in which to construct.  The deadline for construction can only be extended for limited reasons (referred to as circumstances that justify "tolling" of the permit) - for a short term equal to the period that an Act of God (e.g. a hurricane, blizzard or flood that restricts access to the proposed transmitter site) delays construction, for a Court appeal of an adverse zoning ruling, or for an appeal or challenge to the underlying grant of the construction permit itself.  While waivers of these deadlines are possible - they are very rare, and usually granted only where the completion of construction misses the deadline by a matter of days.  In a case decided last week, the FCC reiterated its policy, and canceled a construction permit for a new AM station despite the fact that the station towers had allegedly been constructed, as it appeared that even that construction occurred after the construction deadline, and there was no clear time frame in which the final steps would be taken (including the proof of performance) that would allow the station to file a license application showing that all construction had been completed in accordance with the parameters set out in the construction permit.

This case demonstrates the importance that the FCC places on its construction deadlines.  Whether building a new station, or making changes in an existing one, observe carefully all construction deadlines.  As this case shows, if you miss the deadline set by a construction permit for the completion of construction, and you are not able to show one of the tolling situations exist that will stop the countdown toward the expiration of the CP, you can expect that the FCC will cancel the permit - no matter how much you may have spent to get to the point in construction at which your time ran out. 

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Just a reminder to broadcast stations in certain states of several upcoming February obligations.  First up, February 1st is the deadline for Radio Stations in Arkansas, Louisiana, and Mississippi to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory for more information about the FCC's license renewal process.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on February 1st to inform their communities of the renewal filing.  Specific language for the announcements can be found on the Commission's website here, and the post-filing announcements continue on Feb. 16, Mar. 1, Mar. 16, April 1, and April 16.

Second, the next batch of radio license renewals -- which will be filing their renewals on April 2nd -- is Indiana, Kentucky, and Tennessee, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on February 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Feb. 16, Mar. 1, and Mar. 16. 

Third, by February 1, Radio and Television Station Employment Units (SEUs) in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Annual Report on their website.  The Annual EEO Public File Report summarizes the station's or the SEU's EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Arkansas, Louisiana, and Mississippi will also be filing an FCC Form 396 EEO Report by February 1 in connection with their license renewal filing.

Finally, February 1st is the deadline for Noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey and New York, and Noncommercial television stations in Kansas, Nebraska and Oklahoma to prepare and file an FCC Form 323-E Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will next occur on Nov. 1, 2013.  A copy of our recent reminder to noncommercial stations about the February 1 filing deadline can be found here.

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Changing the city of license of an AM or FM station is getting more difficult, based on recent FCC decisions.  As we have written before, the FCC's Rural Radio order changed the manner in which the FCC reviews city of license changes.  In connection with any proposed city of license change, the FCC reviews the proposal to make sure that the change will result in a favorable arrangement of allotments, making sure that the distribution of radio channels is in the public interest.  In making that decision, the FCC has relied on a series of priorities - first insuring that all areas of the country get at least two radio reception services (Priority 1 was to provide service to "white areas" that currently receive no radio service at all, Priority 2 was to provide a second reception service to all areas).  The next priority was to provide as many communities as possible with their first "transmission service", i.e. a station licensed to that community that would have a primary responsibility to address its needs and interests.  Finally, if there was no proposal to provide a first or second reception service or a first local transmission service, the FCC  looked at Priority 4 factors, i.e. other public interest matters.  In the past, service to a greater number of people itself was a Priority 4 consideration.  Based on a case released last week, service to a greater population apparently is no longer be viewed as justification for the change in the city of license of a radio station - even if the proposed move is from a rural community that already has a significant amount of service to a similarly well served urbanized area and results in a significant increase in the population served by the station.

The Rural Radio order changed the Priority 3 preference for a first transmission service by determining that any proposal for a city of license within an urbanized area would be viewed as being a proposal for service to the entire urbanized area (meaning that, instead of being a first local service to a named community, all the stations in the urbanized area would be considered as serving the same city). Thus, a proposal to take a station from a rural area (e.g. proposing to take the third radio station from some smaller rural town) to a city without a service in a urbanized area would no longer be viewed as providing the first local transmission service to the suburban community (but would instead be viewed as being a proposal to provide just another service to a metro area that probably already has many stations that are licensed to the various communities in the urbanized area).  Some had thought that, while Priority 3 would no longer justify such a move, a Priority 4 preference would be available if the move would allow the station to serve a much larger population, and if any loss area was already well served.  In the proposed move discussed last week, the Commission relied on language in the Rural Radio Order that stated that population increases alone would not be enough to justify a city of license change when a station proposed to move into an urbanized area.  In this case, the Commission's staff found wanting a proposal to move from the well-served community of Boone, Iowa to a community in the Des Moines urbanized area - even though the proposed change would result in service to over 300,000 more people than are currently served by the station - increasing the number of people served by the station from less than 100,000 to over 400,000. The request was not denied outright, but instead the applicant was given another opportunity to supply additional information to demonstrate the public interest benefits that would result from the move. 

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Changing the city of license of a broadcast station was made more difficult by the FCC's rural radio order.  That order, about which we wrote here, imposed substantial obstacles on broadcasters attempting to move their stations from rural areas into urbanized areas - making such moves difficult if not impossible in many cases.  However, in two recent cases, the FCC clarified that decision so as to permit some changes to be made without the substantial new showings. Specifically, these cases permit the move of stations from one city within a market to another in the same market, or from one urbanized area to another, without doing the complex showing that might otherwise be required.

The rural radio decision had changed the an FCC policy that had favored, in allocations decisions, a first transmission service (i.e. the first station licensed to a community) to a large community within an urbanized area over a service to a less populous community, even if that community was outside an urbanized area.  After the rural radio decision, there was a presumption that service to any community within an urbanized area was service to the entire urbanized area - so a first service to a suburban community, instead of being treated as the first transmission service to that community, was treated as if it were the 20th (or 30th or 40th,depending on the number of stations in the entire market) service to the urban area.  Thus, the proposal would routinely not be entitled to a preference over a new service to a community outside of the urban area in the absence of a complex and convincing "Tuck showing" that analyzed a number of factors to show that the suburban community was independent of the central city in the urban area and that the proposed station would really meet the needs of this independent community, not of the whole urbanized area.  In one decision released last month, the FCC made clear that a move from one city within an urbanized are to another within the same urbanized area did not need this Tuck showing, as both were considered part of the same community for allocations purposes.  In a variation on that theme in a case released last week, the FCC's staff held that a move of a station from one urban area to an adjacent urban area did not require the showing.  Presumably this was because each urban area would have dozens of services, so that loss of one service in one market and the gain in another would be inconsequential.  Seemingly simple decisions, but ones that can save applicants significant time and trouble when filing city of license change applications for stations that are already located within urbanized areas. 

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Just a reminder that radio stations in North Carolina and South Carolina are up next in the license renewal cycle, which means that pre-filing announcements for radio stations in these states must start on June 1st.  The announcements continue on June 16, July 1, and July 16, for a total of four pre-filing announcements.  These announcements give notice to the local community that the station will be filing a license renewal application with the Commission and invite participation in the renewal process.  The precise language of the pre-filing announcements—which is dictated by the FCC’s Rules—can be found here.

The announcements should be aired in the primary language used on the station, so if the station broadcasts primarily in a foreign language, the announcements should be broadcast in that language. For commercial radio stations, at least two of the required pre-filing announcements must air on the station between 7 a.m. and 9 a.m., or 4 p.m. and 6 p.m. local time. If the station does not operate between 7 a.m. and 9 a.m. or between 4 p.m. and 6 p.m., then at least two of the required announcements must be made during the first two hours of broadcast operations. For noncommercial educational stations, the timing of the announcements is the same as for commercial stations, except that such stations need not broadcast the announcements during any month during which the station does not operate.

For more details about the pre-filing announcements and the license renewal process for radio stations, please see our recent advisory which will help radio stations prepare for the process.  A copy of the advisory is available here.  And next up in the queue will be radio stations in Florida, Puerto Rico, and the Virgin Islands, who will start their pre-filing announcements on August 1st in advance of filing their renewal applications on October 1st. 

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The FCC has issued a flurry of fines against broadcast stations in the past week or two.  While a number of these fines were for the operation of unlicensed pirate radio stations, several of the fines were for public inspection file violations, stations broadcasting with excessive power or failing to reduce power at nighttime, or for other technical violations.  Agents from the Commission's field offices have been busy visiting stations, and licensees are urged to heed these recent forfeiture actions and review their own operations to ensure compliance with the Commission's rules, starting with the main studio rules and public inspection file requirements, about which we've written often in the past.  (See here, here, and here, for example.)

While the main studio and public inspection file requirements seem basic, the failure to properly follow these rules can be quite costly.  Today's FCC releases carries news of two such fines, one for $24,000 and one for $25,000.  In the first case involving two AM stations, the Commission fined the licensee $12,000 per station for failing to maintain a local public inspection file.  A copy of the decision is available here.  The FCC increased the forfeiture from the base fine of $10,000 based on its finding of violations at other stations operated by the licensee, which in the FCC's view may indicate a "systemic compliance issue".  In the second case, available here, the Commission fined two other AM stations operated by the same licensee a total of $25,000 for public inspection file violations, failure to operate consistent with the terms of the station's license, and failure to make required annual measurements. 

Of particular note, one of the AM stations had failed to conduct the required annual equipment performance measurements, and had failed to switch from its authorized Daytime pattern to its authorized Nighttime directional pattern during the month of April.  Section 73.1590(a)(6) of the Commission's rules requires that AM stations make annual equipment performance measurements, and that the details of those measurements be kept on file at the transmitter or remote control point for two years and be made available to the FCC upon request.  These measurements ensure that the station and transmitter are operating properly and are not causing any spurious or harmonic emissions, and must be conducted every year with no more than 14 months between measurements. In the case issued today, the station had no record of the measurements and had apparently not conducted the annual equipment performance measurements. 

These fines should be a clear warning to broadcast stations -- particularly AM stations -- to review their operations and ensure that they are in compliance with the Commission's rules and their authorized parameters.  And AM stations should make sure to make their annual equipment performance measurements and retain the proper documentation in their files. 

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The FCC's decision in its rural radio proceeding addresses numerous radio issues - some of which seem to provide a solution in search of a problem.  In an era where the President has called for agencies to review their decisions to access how they will affect businesses and job creation, some aspects of this rural radio decision appear to be moving in the opposite direction - imposing new hurdles on broadcasters trying to improve their operational facilities. While the FCC in this decision adopted largely uncontested rules that would promote the development of new radio stations on Tribal lands, the Commission also adopted rules making it harder for radio stations to move from more rural areas into more urban ones - rule that were almost universally condemned by broadcasters. The decision also restricted the ability of FM translators to "hop" from the commercial to the noncommercial band and vice versa, and adopted rules that codified the determination of how AM applications are determined to be "mutually exclusive" when filed in the same window for new or major change applications.  The changes to the procedures for consideration of AM and FM station allotment and movement are summarized below.  The other changes made in this proceeding will be discussed in a subsequent post on this blog.

Easily the most controversial of the decisions made by the Commission in this proceeding was the conclusions reached as to the movement of AM and FM radio stations from more rural areas into more urbanized ones.  We wrote about some of the concerns raised by broadcasters last week.  Many of the new rules and policies adopted by the Commission were ones feared by broadcasters - though many of the policies are still undefined, and how they are enforced may well determine their ultimate impact.  That impact may well take years to sort out.  Regardless of the ultimate impact on the actual movement of stations, there is no question that these rules will require far more paperwork from broadcasters seeking to allot new channels and from those seeking to change the cities of license of existing stations, and open more moves to challenge, making the process slower and more expensive.

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At the FCC meeting next week, the Commission will be considering an item dealing with radio stations that serve rural areas, and the ability of licensees to make technical modifications to those stations that would change the communities which they serve.  While, as we wrote last week, most of the attention of broadcasters has centered on the television issues to be considered at the meeting as the Commission is to begin an inquiry on the retransmission consent process.  The rural radio issue poses real concerns for radio operators - especially those contemplating a move of a radio station from a community outside of a metropolitan area to one in a metro.  In the name of protecting service to rural areas, the Commission may well restrict minority groups, specialty programmers, and other new entrants from bringing new services to metropolitan areas - permanently entrenching those companies who currently have major market stations as the only competition in those markets.  A proposal to protect service to rural areas may well have the impact of decreasing diversity in large markets.

In virtually every large market, there is little or no potential to add new channels for FM service both because of interference protections that need to be accorded to stations in the market and because of protections to stations outside of the market but close enough to be short-spaced to any potential station in the metro area.  In some cases, creative engineering has found ways for some of these non-metro stations to be moved into the metropolitan area, or at least close enough to provide some service to those markets.  "Move-in stations" have allowed new entrants, some with specialized programming, to provide service to large cities - when such entrants could never afford the price of an existing in-market station, even if one was for sale.  Even "rim shots", those move-ins that don't provide full coverage of a metro area, may be very worthwhile for groups with unique formats (religion, Spanish language, and other targeted programming) trying to reach a small audience that is not otherwise going to get service in such markets.   

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Only last month, we wrote about the proposal of a consulting engineer for an across the board power increase for AM stations so that they could overcome the effects of interference from all the electromagnetic devices now existing in our modern world that, while making our lives easier, interferes with the signal of AM stations, particularly in urban environments.  In what seems like record time, the FCC today sent the proponent of that change a letter declining to pursue the proposal.  The FCC's Media Bureau sent Richard Arsenault, the engineer who made the proposal, a letter stating that, after review, the staff decided that the proposal would increase AM interference, in contradiction to the attempts by the FCC to reduce interference on the AM band.  Thus, the proposal was dismissed.

When we first wrote about this proposal, we expressed skepticism about how likely such a move was to get buy in from all of the potentially affected parties, including neighboring countries.  Nevertheless, we are surprised at the speed of the FCC's denial of this proposal, and its reliance on an almost 20 year old proceeding which took some initial steps to try to reduce AM interference, but which has essentially been inactive for many years.  AM stations are suffering in many places in the country, and the interference identified by Mr Arsenault is real.  We hope that, while the FCC has denied this particular remedy, it will continue to look at means to address AM issues.  One proposal still out there - moving AM to a rededicated TV channel 5 or 6.  Over time, we will see if that proposal, on which the FCC has already received public comment, has any traction at the FCC.

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A petition was recently filed at the FCC proposing to allow all AM stations to increase to 10 times their current power in order to overcome the effects of interference that has grown up in most urban areas from the operation of all sorts of electronic equipment, fluorescent lights and other devices that simply did not exist when AM power levels were first established.  The petition was drafted by an engineer, who argues that, as the amount of background noise from all sorts of electronic devices has increased, so has the noise on the AM band.   He believes that the only way to make the AM signal usable is to vastly increase power on all stations.  As the stations would maintain their relative power levels towards each other, he claims that there would not be increased interference between AM stations - but that the increased power levels would overcome the background noise.  However, because of AM skywave issues, the petition suggests that nighttime power levels remain at their current levels.

How realistic is this proposal?  The petition recognizes that, in border areas, the power increase could not happen without international coordination and the amendment of existing treaties.  But, given the proposed high power for AM stations and the cumulative effect that their signals can have on distant stations, this increase could seemingly affect international AM stations even if the US stations increasing power are far from the border.  However, the use of AM stations has been decreasing in some countries - in Canada, a number of AM stations have already ceased operating, so maybe the international implications could be overcome given enough time.

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In a recent decision, the FCC made clear that analog FM translators can rebroadcast the signal of a HD digital multicast channel from a commonly owned FM station.  For months, broadcasters have been introducing "new" FM stations to their communities via translators rebroadcasting HD-2 signals which are broadcast digitally on a primary FM station, and available only to those who have purchased HD radio receivers.  In the decision that was just released, the Commission's staff rejected an objection to the use of an FM translator taking a signal that can only be heard on a digital HD Radio and turning it into an analog signal capable of being received on any FM receiver.  In this case, the broadcaster rebroadcast his AM station on the FM HD station so that it could then be rebroadcast on the FM translator.  But, even if the HD multicast channel was a totally independent station that could otherwise only be heard on an HD digital radio, it could be rebroadcast on the FM translator and received by anyone with an FM radio in the limited area served by the translator station. 

The Commission did make clear, however, that a broadcaster cannot use another station owner's HD multicast channel and rebroadcast that on a translator if the broadcaster already owned the maximum number of stations allowed by the multiple ownership rules.  In other words, if a broadcaster is allowed by the multiple ownership rules to own 4 FM stations in a market, it could put a fifth (low power) FM signal in that market through the use of an FM translator rebroadcasting one of its own HD multicast signals.  However, if it had not itself converted its FM stations to digital so that it had its own multicast abilities, it could not do a time brokerage agreement and program the multicast signal of another broadcaster in town who had installed the digital equipment needed to do such multicasts.  An LMA or time brokerage agreement with another station for use of an HD multicast channel counts for multiple ownership purposes in the same way that such a programming agreement would if it provided for programming of a primary analog  FM station. 

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A year ago, the FCC approved the use of a computer modeling technique, known as "moment method modeling", to allow certain AM stations to do Proofs of Performance of directional antenna patterns without the costly and time-consuming process of proofing the antenna performance through the use of actual field strength measurements.  Last week, the FCC issued a Public Notice clarifying the process for the use of this process.  The Commission notes that these guidelines are issued based on the staff's current interpretation of the rules, that the notice is not intended to be precedential and to bind the Commission, and that these issues will be addressed by the staff in more detail as specific cases arise.    

The Public Notice addresses subject such as:

• Types of Antenna Systems Eligible:  Only antennas with series-fed radiators can use this method - not those with folded unipoles or sectionalized antennas
• Tower Location Tolerance: Noting that the a surveyor must certify that the antenna has been properly located and each tower is properly oriented, with a tolerance of 1.5 electrical degrees for each tower in the array
• Antenna Monitor Calibration:  Reliance on the technique requires a certification that the antenna monitor has been properly calibrated in accordance with manufacturer's specifications
• Filing Fees:  Applicants must pay the license fee and directional antenna fee for both licenses to cover construction permits or to support a new license without monitoring points.
• Specific information for accounting for base region effects when base sampling is used, agreement between calculated and measured tower base impedances, the requirement to measure impedance of sampling line with sampling device connected, and the determination of licensed parameters vs. operating tolerances is also provided

More specific information can be found in the Commission's Public Notice. 

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Last week, we wrote about the FCC fining stations for a number of violations found at the studios of some broadcast stations.  In these same cases, the FCC also found a number of technical violations at the tower sites of some of the same stations.  Issues for which fines were issued included the failure to have an locked fence around an AM station's tower, the failure of stations to be operating at the power for which they were authorized, and the failure to have a station's Studio Transmitter Link operating on its licensed frequency.

An issue found in two case was the failure to operate at the power specified on the station's license.  In one case, an AM station simply seemed to not be switching to its nighttime power - in other words, at sunset, it was not reducing power from the power authorized for its daytime operations.  The second case was one where another AM station was not switching to its nighttime antenna pattern after dark.  In that case, there were apparently issues with the nighttime antenna but, rather than request special temporary authority from the FCC to operate with reduced power until the problem was fixed, the FCC notes that the station apparently just kept operating with its daytime power.  An STA is not difficult to obtain when there is a technical issue (as the FCC does not want stations going dark if it can be avoided), and some effort is made to specify a power that avoids interference to other stations.  So, if faced with technical problems, request authority for operations that are different from those authorized by the station's license until those problems can be fixed, or risk a fine from the Commission.

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The threat from the recent fires to the tower farm on Mount Wilson from which many of the radio and television stations serving the Los Angeles area operate highlight the need for broadcasters to have an emergency plan in the event that some local catastrophe affects their tower site.  The fact that this fire comes near to the anniversary of Hurricane Katrina, where many broadcasters lost power, but where others where able to provide a lifeline to their communities, reminds broadcasters that emergencies can strike anywhere in the country, and broadcasters need to be ready.  The FCC's Public Notice issued this week, adopting special procedures for stations in the area affected by the fire, demonstrate that the FCC is ready to work with broadcasters to provide service in the time of a widespread disaster, relaxing many of its normal rules.  The FCC has been very good in helping stations in the event of a mass disaster - even helping broadcasters during Katrina cut through the red tape of other agencies in order to assure their continued operation.  But broadcasters need to familiarize themselves with the rules about emergency operations, and be ready to deal with a more isolated disaster that may not receive enough attention for the FCC to, on its own, relax these rules.

One of the rules highlighted by the FCC's public notice is Section 73.1250(f) of the Commission's Rules, which allows an AM station to operate at night with its daytime power in the event of an emergency.  As many AMs operate only during daylight hours, and others routinely reduce power at night or use a directional antenna that restricts radiation in directions which may contain significant populations, this ability to continue to operate with daytime power and antenna pattern at night can allow a station to fully serve its community in times of emergency.  However, a broadcaster taking advantage of this provision needs to observe the requirements of the rule.  First, it must notify the FCC that it is operating under this rule within 48 hours of beginning to do so.  If the station causes irreparable interference to another station, it may be forced to curtail such operations. Moreover, the operation must be on a noncommercial basis (apparently to limit any financial incentive for a station to abuse this provision).  And finally, one issue not addressed in the FCC's public notice about the Southern California fires, the use is only permitted if there is no other full-time service "serving the public need."  Obviously, that last clause is open to interpretation, but it would certainly seem to preclude an AM daytimer co-owned and simulcasting an FM station that covers the same are from suddenly operating at night.

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With today's Federal Register publication of the FCC's recent Order amending the rules governing FM Translator stations, the date is officially set at October 1st for when AM stations can begin to rebroadcast their signals on FM translators.   Beginning October 1st, the long-standing prohibition on rebroadcasting AM radio on FM translators is off the books and translators are free to pick up an AM signal.  As of that date, no further authority will be required from the FCC in order for an FM translator to rebroadcast an AM station. 

In fact, any existing STAs (Special Temporary Authority) previously granted by the Commission for such rebroadcasts will be canceled as of October 1st, as they will no longer be necessary.  Accordingly, FM translator stations that are currently rebroadcasting an AM signal pursuant to an STA should follow the FCC's standard procedures and simply file a letter with the FCC indicating the full power station that is being carried.  Just as for the rebroadcast of an FM station, a translator stations must notify the Commission in writing of any change in the station being rebroadcast. 

As we summarized earlier, the rules governing rebroadcasts of AM stations are fairly similar to those for rebroadcasting FM.  The main issue with respect to AM rebroadcasts is that no portion of the 60 dBu contour of the FM translator station may extend beyond the smaller of:  (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station.  Further, AM broadcast licensees with Class D (daytime-only) facilities will be allowed to originate programming on such FM translators during periods when the AM station is not operating.  So daytime-only AM stations can continue operating at night on a fill-in FM translator. 

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The FCC today adopted an Order revising its rules to permit the rebroadcast of AM radio stations on FM translator stations.  A copy of the Order is available here.  By this Order, the FCC formally adopted the interim policy that it has experimented with in the past year and a half since the release of the Notice of Proposed Rule Making in this proceeding.  The Commission acknowledged that the interim rule has worked well and that allowing AM stations the same flexibility to use FM translators to enhance their service is in the public interest. 

Per today's Order:  "Specifically, AM broadcast stations will be allowed to use currently authorized FM translator stations (i.e., those now licensed or authorized in construction permits that have not expired) to rebroadcast their AM signals, provided that no portion of the 60 dBu contour of any such FM translator station extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. In addition, AM broadcast licensees with Class D facilities will be allowed to originate programming on such FM translators during periods when their AM station is not operating."

Several things to note:

First, "currently authorized FM translators" means translator stations with licenses or permits in effect as of May 1st, 2009.  As expected, there is no opportunity to seek authorization for new FM translators, and by extension, there was no need for the FCC to address the issue of priorities between LPFM stations and FM translators (which the FCC says it will address in the pending LPFM rule making).  So this rule change simply allows existing FM translator stations to rebroadcast AM stations.

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In a truly eleventh-hour decision, the FCC released an Order late Friday evening suspending the filing of FCC Form 323 Ownership Reports that would otherwise be due on Monday, June 1st for certain broadcast stations.  In its recent Report and Order adopted in the proceeding devoted to Promoting Diversification of Ownership in the Broadcasting Services, the Commission revised its rules to implement a single November 1st filing deadline for all commercial broadcast stations to submit an ownership report.  The Order, however, neglected to address the fact that numerous broadcast stations faced filing deadlines under the current rules that would require an ownership report to be filed by June 1, August 1, or October 1 (depending on a station's license renewal anniversary). 

It is unclear why this issue was not addressed as part of the earlier Report and Order, which was adopted nearly two months ago on April 8th, or why today's Order was not released earlier in order to prevent stations from filing in advance of the June 1st deadline, but the clarification will be helpful for those stations that have not yet filed, or for those that would otherwise face an August 1st or October 1st ownership report deadline.  For those stations that have already filed their Ownership Reports consistent with the June 1st deadline, the Order is silent as to whether the FCC will refund the filing fees paid by those licensees, or alternatively, if those licensees will be required to pay another fee come November 1st. 

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Rural communities – do their radio stations need government protection? The FCC seems to think so, proposing a series of new rules and policies that restrict the ability of the owners of rural radio stations to move their stations into Urban areas. These rules would make it harder for entrepreneurs to do “move in” applications – taking stations from less populated areas and moving them to communities where they can serve larger populations in nearby cities. The Commission states that it is making these proposals to attempt to live up to its obligations under Section 307(b) of the Communications Act to ensure a “fair, efficient and equitable” distribution of radio services to the various states and communities in the country. While this may be a noble goal, one wonders if it is a solution in search of a problem. Are there really rural communities that have an unmet demand for missing radio services – and which can economically support such services? And do these proposals conflict with other goals of the new Commission, by effectively decreasing the opportunities for minorities and other new entrants from acquiring stations in major markets – by taking away move-in stations that are often the only stations that these broadcast station owners can afford in urban markets?  These are questions that the FCC will need to resolve as part of this proceeding. 

A Section 307(b) analysis is done by the FCC when it faces conflicting proposals, specifying different communities of license, for new AM stations or requests for new FM allotments. It is also required when an applicant proposes to move a station from one community to another, as the applicant must demonstrate that the move to the new community would better serve the objectives of Section 307(b) than would the current location of the station. In the past, the 307(b)  analysis looks at several factors, or “Priorities.” These include:

 

1. Service to white areas – when a proposed station will serve “white area,” an area where residents currently receive no predicted radio service (no “reception service” in FCC parlance). 
2. Service to gray areas – when a proposed station will serve areas that currently receive only a single reception service
3. Provision of a first local “transmission” service – where the proposed station will be the first station licensed to a particular community, and thus the first station that has the primary responsibility to serve the needs of that community
4. Other public interest factors – usually meaning which proposal will provide the service to the most people (with service to “underserved areas,” i.e. those that receive 5 or fewer “reception services,” getting somewhat more weight).

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The FCC has an open proceeding pending to allow AM stations to use FM translators.  As we have written, while this proceeding continues, the Commission is allowing AM stations to rebroadcast their signals on FM translators on under Special Temporary Authority.  In a case decided today, the FCC made clear that this is only permitted where the translator already is an authorized facility.  In this case, an applicant requested that the FCC grant it temporary authority to operate an FM translator on a frequency where no authorization has been granted or even applied for.  The Commission's staff found that it had no authority to authorize such an AM station to put its signal on the FM band unless there was an authorized translator that could be used, or until the full Commission decided differently in the pending proceeding and allows AM stations to apply for new translators.

While this seems like a fairly straightforward decision, there is one interesting issue noted in the decision.  The applicant claimed that the FCC could authorize an FM translator on a temporary basis if the public interest supports it, citing a case in Nevada where the FCC authorized the temporary operation of a Low Power FM station for which no authorization had been filed.  We wrote about that case here, and the press suggestions that this application was granted at the request of a Nevada Senator even though it was not within the normal FCC processes.  In the case released today, the Commission's staff denied that the Nevada case provided any benefits to the applicant - stating that the Nevada decision was an unpublished decision with no precedential value.  Perhaps the decision also reflects the change of administration - to one that promises to be more observant of established processes and to make decisions based on reasoned decision-making.  

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In these challenging economic times, it seems like almost every day we see a notice that a broadcast station has gone silent while the owner evaluates what to do with the facility.  This seems particularly common among AM stations - many of which have significant operating costs and, in recent times, often minimal revenues.  The DTV transition deadline (whenever that may be) may also result in a number of TV stations that don't finish their DTV buildout in time being forced to go dark.  While these times may call for these economic measures to cut costs to preserve the operations of other stations that are bringing in revenue, broadcasters must remember that there are specific steps that must be taken at the FCC to avoid fines or other problems down the road.

One of the first issues to be addressed is the requirement that the FCC be informed of the fact that a station has gone silent.  Once a station has ceased operations for 10 days, a notice must be filed with the the FCC providing notification that the station is not operational.  If the station remains silent for 30 days, specific permission, in the form of a request for Special Temporary Authority to remain silent, must be sought from the FCC.  The rules refer to reasons beyond the control of the licensee as providing justification for the station being off the air.   Traditionally, the FCC has wanted a licensee to demonstrate that there has been a technical issue that has kept the station off the air.  The Commission was reluctant to accept financial concerns as providing justification for the station being silent - especially if there was no clear plan to sell the station or to promptly return it to the air.  Perhaps the current economic climate may cause the FCC to be more understanding - at least for some period of time.

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Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored. 

With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.

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In a recent decision, the FCC adopted new rules for AM station proofs of performance that make the process much simpler.  We wrote about this proposal when it was advanced, here.  The order adopted a week ago allows stations installing new series fed AM directional antennas to avoid the time-consuming and expensive process of doing a full proof of performance, by instead using a computer modeling process plus a limited number of actual measurements.  Comments filed in the proceeding convinced the FCC that this process would be as accurate as the full proofs that had previously been required for new AM stations and for many changes to existing stations.  Providing this option to AM broadcasters should greatly simplify and expedite the process of completing AM construction and the licensing of such stations.

As part of this order, the FCC also asked for further comments to discuss whether the construction of communications towers - even those that do not otherwise fall under FCC jurisdiction because, for instance, they are too short to require tower registration which is primarily triggered by FAA considerations - near to AM directional towers should also be required to use this same computer methodology to determine the effect that new construction would have on the nearby AM station.  If so, would parties proposing such new construction have to notify nearby AM stations, or just some subset of AM operators (such as those that are themselves operating under program tests).  If notification is to be required, how much advance notification should be required?  Comments on this proposal are due 30 days after this order is published in the Federal Register. 

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Tomorrow's FCC meeting was to consider the proposal to allow AM stations to use FM translators on a permanent basis (see our post here).  However, it is not going to happen - the FCC released a Public Notice today removing that item from the agenda for tomorrow's meeting.  While a number of other items were also withdrawn from the agenda, most of them were decisions on specific cases which are not routinely decided at open meetings, and most of these matters were decided on circulation (i.e. voted on by the Commissioners without a meeting).  Two more general items, one dealing with a simplification of AM proof of performance procedures and another with requests for reconsideration of the FCC's noncommercial comparative standards, have also been decided on circulation (and we will report on these decisions when the decisions are released).  But the item on FM translators for AM stations was pulled from the agenda, and has apparently not been decided by the FCC.

Rumors that this item would be pulled circulated last week at the NAB Radio Show.  We have always expressed concerns that this item would be held up by pressure put on the FCC by LPFM advocates who fear more demand for FM translators from AM stations will make it harder for LPFM applicants to find open channels.  We have no idea if this is in fact the reason for the deletion of the item from tomorrow's agenda, and will have to wait to see when the matter reappears for final consideration.

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When we first started this blog over two years ago, one of our first posts to receive a comment (proving that at least someone was actually reading what we wrote) dealt with the FCC's proposal to allow AM stations to be rebroadcast on FM translators, a change of the Commission's long-standing prohibition on using FM translators for anything other than rebroadcasting FM stations.  While some commenters expected this proposal to be rushed through the FCC, we cautioned that the process might not be so fast, as there were parties who would be opposed to more uses of FM translators, including LPFM advocates who fear that more use of FM translators will preclude opportunities for new LPFM stations.  Well, it looks like the long wait for a decision to allow the use of translators for AM stations may soon be over, as the matter is listed as a possible topic for consideration at the FCC's September 25 meeting.  This is only a list of possible agenda items, and even were it to make it to the agenda, it can always be removed.  But even being listed as a possible item for consideration does seem to be a positive development indicating that the FCC's analysis of the matter has neared completion. 

As we have written, the FCC has already allowed some AM stations to begin broadcasts on FM translators pursuant to Special Temporary Authority.  But any STA is by its nature temporary, and can be revoked at any time.  AM broadcasters would welcome the certainty that any permanent decision will bring.  Of course, applications for new FM translators can only be filed during a window for such filings, and as the last translator window is still tied up in questions about how many applications by each party should be processed, AM licensees looking for FM translators must find existing translators (or construction permits from the last window) in order to take advantage of any rule change that the Commission may make.  Nevertheless, any change will immediately provide an important benefit to at least some AM broadcasters.

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The FCC today released its schedule for Regulatory Fees that will be paid in September of this year.  The Order set the fees to be paid by entities regulated by the FCC, increasing those fees as required by Congress by approximately 7.5% over the fees paid last year. The fees to be paid by broadcasters are set forth below.  Fees for all other services can be found in the appendix to the FCC's Order setting the fees.  The exact window for paying the fees has not yet been set, but should be announced later this month, in a public notice that will also provide more details on the filing process.  The Order also contains a Further Notice of Proposed Rulemaking, asking if the FCC should change the allocation of fees between the services regulated by the FCC.  As to broadcasters specifically, the FCC asks if it should adopt fees for Digital Television, as the current FCC fees apply only to analog television.  Comments on these issues will be due 30 days after this Order is published in the Federal Register.

In reaching its decision as to the fees for 2008, the FCC decided not to impose a fee on AM expanded band stations for the current fee cycle - but it will decide whether to do so after the FCC decides the issue raised in the pending Diversity proceeding as to whether to allow licensees to retain those AM stations if they are held by a small business entity.

Fees are paid based on the status of the station as of October 1, 2007 (so, for instance, if a station had received an upgrade in the interim, it pays based on its old facilities).  However, the licensee who owns the station as of the date that fees are due is responsible for paying those fees, even if it did not own the station as of October 1, 2007.  Fees for radio are set by a combination of the predicted population served by the station and the class of the station, while TV station's fees are paid based on TV market size.  Parties holding construction permits for new stations pay flat fees regardless of the area served by the proposed station, and there are also flat fees for broadcast auxiliaries, television stations that are authorized as satellites of other stations, and secondary broadcast stations (e.g. translators).  Noncommercial operators are exempt from the fees.  The fees for broadcasters can be seen by clicking on the "Continue Reading" link below. 

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The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television Channel 6 (and possibly Channel 5) for FM use after the completion of the television digital transition, to allow FM licensees who multicast to sell one of their multicast channels independently of the main channel, to allow certain AM stations with expanded band channels to avoid turning in one of their channels at the end of the 5 year transition period if the licensee is a designated entity (or sells one of its channels to a designated entity), and to provide Class A television stations with must-carry status.  The rulemaking proceeding will also look at whether the current definition of a designated entity (focusing on the fact that it is a small business as opposed to any review of the race or gender of its owners) is the one that the FCC should continue to use.  Thus, this is an important proceeding in which many broadcasters should be interested, and now you have more time to prepare comments on the issues that are raised.

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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. 

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UPDATE  5-29-2008-  Please note, the Commission has revised the dates for submitting comments in this rule making proceeding.  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.  A copy of the Federal Register correction notice can be found here. 

The FCC has published its Further Notice of Proposed Rulemaking on its efforts to encourage diversity in the broadcast media in the Federal Register, thus setting the dates for public comments.  The FCC is seeking comment on a number of ideas – some to restrict the definition of the Designated Entities that are eligible to take advantage of the rules promote diversity to minority groups and perhaps women, others to expand the universe of media outlets available to potential broadcast owners – including proposals to expand the FM band onto TV channels 5 and 6, and proposals to allow certain AM stations, which were to be returned to the FCC after their owners received construction permits for expanded band stations, to retain those stations or transfer them to Designated Entities.  There are numerous other issues to be considered that we summarized in detail here.  Check out the details, and file your comments, which are due on June 30. 

The Federal Register publication also sets the effective date for the Diversity rules that the FCC did adopt.  These rules will become effective on July 15.  We summarized the new rules here.  While many of these new rules are relatively uncontroversial, allowing certain limited exceptions to the multiple ownership rules for companies that help minority ownership, some have imposed new obligations that, in some cases, are not easily defined.  For instance, while no one would argue with the proposition that parties who discriminate based on race or gender should be penalized, the FCC adopted some rules that may need further clarification.  For instance, the FCC adopted new rules to require certifications that there has been no discrimination in all FCC applications seeking approval for the sale of a station (FCC Forms 314 and 315).  The FCC also adopted rules prohibiting dictates by advertisers that their advertising not run on urban or Spanish formatted stations ('no urban, no Spanish" dictates).  Yet, on neither of these rules did the FCC provide any specificity as to what they were prohibiting, or what the Commission would look at in enforcing these rules.  Watch for potential requests for reconsideration or clarification of these and perhaps other rules - which are due on June 15. 

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Quarterly Issues Programs Lists Due April 10th -- This is a eminder to all radio and television stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of January, February, and March dealing with those issues must be prepared and placed in the stations' public inspection file by April 10, 2008. The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion. See our full advisory for further details.

Please note, the New Form 355 for television stations has not yet become effective, but when it does, television stations will be required to use this new form to report on their programming content in great detail.  Stations should prepare for the implementation of this form now. 

Children's Program Reports Due April 10th --  Commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by April 10, 2008. The Reports must also be placed in the stations' public inspection files by that date. Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398. Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by April 10th.

New Form 388 Report on DTV Educational Efforts Due April 10th -- Last, and definitely not least, by April 10th full power television stations must electronically file the newly minted Form 388 reporting on their efforts to inform viewers about the DTV transition.  Although the FCC's new rules mandating educational efforts by TV stations were only effective March 31st (the last day of the quarter), the FCC nevertheless is requiring that all stations file a report detailing their DTV education efforts during the First Quarter of 2008.  Thus, stations will largely be reporting on any voluntary educational efforts undertaken in the first quarter (PSAs, news programs, etc.), as well as electing which of the three Options that they intend to employ for their DTV educational efforts going forward.  More information is available in our recent advisory. 

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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.  

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of October, November, and December dealing with those issues must be prepared and placed in the stations' public inspection file by January 10, 2008.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by January 10, 2008.  The Reports must also be placed in the stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by January 10th. 

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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.

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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

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Twice this week, the FCC released decisions denying applications proposing city of license changes for AM stations proposing to take away the only station licensed to one community and move it to another.  In its order adopting simplified city of license changes (see our previous posts including those here and here), the FCC refused to change its policy of not allowing the removal of an established radio station which is the only station licensed to a community except in cases where an extraordinary showing justifying a  waiver of the rules could be made.  The two cases decided this week show that merely moving to a community with greater population (even one which has no other station licensed to it) will not, in and of itself, justify a waiver of the rules.  Thus, stations which are the only station licensed to their communities are effectively blocked from changing cities of license without  providing a "back-fill", i.e. moving another station so that it can be licensed to the community that would otherwise be abandoned.

In one case decided this week, the broadcaster proposed to move its AM station to a community that had three times the population of the one that it was proposing to leave.  The Commission rejected the move, finding that the residents of the current community should be able to rely on continued service from that station.  This was true even though other stations could be received in the community, as the Commission reminded licensees that their primary responsibility is to serve the needs of their city of license, and that this primary service cannot be duplicated by the secondary service provided by a station licensed to another town or city. 

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In a Public Notice designed to clarify any ambiguity that has arisen from the extension of Daylight Savings Time into November, the FCC on Friday made clear that AM daytime-only stations should continue to use the power levels for October "advanced" operations for Pre-Sunrise (PSRA) and Post Sunset Authority (PSSA) during the first three days of November, until Daylight Savings Time ends on November 4.  We've written about some of the issues for AM stations with Daylight Savings Time here and here.

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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.

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of July, August, and September dealing with those issues must be prepared and placed in the stations' public inspection file by October 10, 2007.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory here for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2007.  The Reports must also be placed in the stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by October 10th.

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Last Friday, the rules on over-the-air digital radio for AM and FM stations - the IBOC system or, as it is commonly known, HD Radio - became effective.  The most immediate effect of the new rules, which we summarized here, is the ability of AM stations to operate using the IBOC system at night.  The Commission determined that such operation offered more benefits than any interference it might create.  The final rules also allowed stations to begin digital operations - and multicast operations - on a permanent basis without prior FCC approval.  As these rules take effect, some stations are beginning to look to the multicast channels to provide new programming opportunities.

NPR has, in many ways, led the efforts to utilize digital radio for multicast operations.  In today's Washington Post, there is an article about the city's NPR affiliate, WAMU, which has recently announced plans to take its multicast operations to a new level.  WAMU had in the past programmed a substantial amount of bluegrass music, a local DC favorite.  Over time, that programming had been reduced as the station broadcast more and more talk programming.  The station had moved bluegrass to a full time Internet radio stream, and has now announced plans to move all of the remaining bluegrass and roots music programming (which had been limited to Sundays) to one of its IBOC digital multicast streams - and to include live announcers during at least some of this digital programming.  The Post article quotes the station manager as saying that the local Best Buy now knows that HD Radio is different from the service that XM or Sirius provide.

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Annual EEO Public File Report Deadline - October 1

Affected States:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington

By October 1, 2007, radio and television Station Employment Units (SEU) in the states listed above must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection files of all stations comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website.  The Annual EEO Public File Report summarizes the station's or the SEU's EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  The states with the October 1 filing deadline are:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington. 

In addition to preparing the Annual EEO Public File Report by October 1, larger radio stations in Florida, Puerto Rico, and the Virgin Islands must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report.  Please note, only radio station SEUs located in these three jurisdictions with 11 or more full-time employees are required to file an FCC Form 397 by October 1, 2007.

Biennial Ownership Report Deadline - October 1

Affected States:   Radio:  Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington;  Television:  Iowa and Missouri

By October 1, 2007, radio stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington, and television stations in Iowa and Missouri must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E.  Ownership Reports are filed every other year, reporting on changes in the licensee’s ownership and updating the information requested by the form.

The timing for the filing of the Biennial Ownership Report and the preparation of the Annual EEO Public File Report is based on the anniversary of the filing of the station's license renewal.  In turn, the renewal cycles are organized by state and type of service, and are staggered based on the FCC's prearranged schedule.  Periodically, we will remind groups of stations as to their upcoming deadlines, and stations should be vigilant to make these required filings.  Copies of our complete reminder memos containing additional information on each of these requirements can be found here (Ownership) and here (EEO).

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In a very unusual process - one that is probably unprecedented - the FCC last week announced that it is opening a window for parties to file applications for a new AM station to serve Rockland County, New York.  AM stations are traditionally made available for filing on an on-demand basis - when the FCC accepts applications for new stations, parties can file in any location in the country, specifying any city of license that they select, as long as the station that they propose will not create interference to existing stations.  This is unlike FM and TV, where there is a two step process - new channels are first allotted at specific locations based on a party's request, but that party gets no rights to the channel.  Instead, after the allotment has been made, anyone can file for in a specified window seeking a construction permit to build the new station.  In this window, the FCC has adopted a unique process for an AM stations, a process much more like that used in FM and TV.  The Commission had been asked by a party for permission to operate a new station in Rockland County.  Instead of simply permitting that party to build a station without competition, the FCC decided that a new station was necessary to provide emergency information about the nuclear power plant in the Rockland area, but determined that anyone could file for that channel.  Applications for the channel (1700 AM - on the expanded band, for which there have been no applications for almost 10 years since the first set of expressions of interest were taken), will be accepted from October 1 through October 5.

In order to give parties the ability to prepare applications, the FCC is imposing a freeze on the filing of minor change applications for AM stations throughout the country during the filing window.  Any minor change application that is filed during the window will be returned.  So if you are planning an application for a technical change to your AM station, you need to plan to avoid that filing window.

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We've recently written much about Internet radio, digital radio, digital television and all sorts of new technologies to electronically deliver media content.  But the grandfather of all electronic media - AM radio - still provides significant service.  A recent Petition for Rulemaking suggests certain technical changes to increase the service provided by these stations. In particular, the proposed changes would allow longer, higher powered operations by stations that are forced to reduce power or cease operating at local sunset.  A summary of the petition prepared by the engineer who drafted it can be found here.  It proposes that AM stations who are forced to reduce power at sunset be allowed to operate with higher Post-Sunset Authority.  It also suggests that the power allotted AM stations for Post Sunset and Pre-Sunrise Authority  be computed based on the location and time of sunset and sunrise at the location of the stations which the local station could interfere with, rather than requiring reduced power when during the hours of darkness at the location of the station that has to reduce power.  These changes are particularly important in the shorter daylight hours in the upcoming winter months.  The FCC recently gave public notice of the filing of this petition, and comments can be filed at the FCC until August 20, 2007.  The Commission will evaluate these comments and determine if a formal Notice of Proposed Rulemaking is warranted, at which time further public comment would be taken.

This proposal is but one of a host of current proposals pending for the AM service.  A few months ago, we wrote about a proposal for easing proofs of performance for AM stations, and before that, we wrote several posts, here and here, about the long-pending proposal filed by the NAB seeking to allow AM stations to use FM translators.  While initial comments have been filed on the Petitions for Rulemaking in these matters, neither of these proposals has yet reached a formal Notice of Proposed Rulemaking.  Much further advanced is the FCC's Order allowing AM stations to operate digitally at all hours - which, as we wrote in May, was released two months ago after being originally adopted at the FCC's March meeting.  However, the digital order does not become effective until 30 days after publication in the Federal Register which, for some unexplained reason, has not yet occurred.  And many AM stations are waiting for this publication so that they can begin full-time digital operations, and others wait for these other actions to help this oldest of electronic media outlets. 

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This article is no longer available. For more information on this topic, see February Legal Deadlines for Broadcasters - Online Public File, Review of Incentive Auction Comments, Filing Deadline for FM Auction, and Lots of Renewals and EEO Public File Reports

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The FCC today issued the long-awaited text of its decision on Digital Audio radio - the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future - 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues - some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas - one to be used solely for digital use - upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below. 

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The FCC has asked for public comment on a change in its rules which would allow broadcasters to conduct proofs of performance for a new directional AM antenna system to be conducted by a computer modeling system, rather than the extensive system of field tests that currently are required. While generations of broadcast engineers have grown up slogging through swamps, driving through fields and even flying in helicopters to conduct field strength readings to prove that AM antenna systems are operating in compliance with the parameters specified in their applications as submitted to the FCC, this proposed new system would allow all this to be done by computer in most instances. Comments on the proposals can be filed with the FCC on or before July 23, with replies due on August 22.

This proposal was filed at the Commission by a consortium of broadcasters, broadcast engineers and antenna manufacturers who had concluded that the existing process was overly expensive and cumbersome and similar results could be achieved by current computer technology.  Whether the FCC concludes that this is in fact the case will depend on the comments filed in response to this notice. 

As these comments are requested to refresh and update the record in an existing rulemaking proceeding to assess the performance of AM directional antenna systems – a proceeding which was actually initiated by a Petition for Rulemaking filed in 1989 – the FCC could immediately issue new rules following the results of this inquiry. Thus, relief for AM broadcasters, making the process of building AM directional antenna systems much faster and cheaper, may be on the way in the short term.

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The FCC has just released a Public Notice providing guidance on various situations that may arise under the new simplified processing rules for changes in the city of license of AM and FM stations. These clarifications had been promised for many months, ever since the new rules became effective in mid-January.  The Public Notice sets out a number of scenarios as to when a broadcast station may change its channel or make a change in a city of license by using a Form 301 application, be processed on a first-come, first serve basis, not subject to competing applications, and when a more lengthy process must be used, requiring public notice and comment and the opportunity for counterproposals, before the change can be made. 

For those who have been involved in the filing of these applications since the January 19 effective date of the rules, and who have informally discussed these processes with the FCC, there are few if any major revelations in the Public Notice.  Essentially, city of license changes can be made on an application where the proposal moves a station from one city to another, when no new station could be located at the second city because of the licensed facilities of the station.  One clarification that had been discussed with the staff in preparation for applications already on file, and confirmed by this notice, is the fact that the new rules allow the change of channel of an existing station, at its current city of license, to a nonadjacent channel (one which is not precluded by the current station operation), using a Form 301 application, as long as there is no upgrade in facilities of the station.  Thus, a station could move from 92.1 to 105.3 (if it works under the FCC's technical standards), without any sort of notice and comment or competing proposal.  In some cases, the station could use this process to change channels, then file an upgrade application on the new channel, and complete a non-adjacent channel upgrade through a two step process never subject to formal comment or counterproposals. 

Even for those without applications currently pending, this public notice is worth reading, as it may give the broadcaster ideas of possible changes that can be made to improve the facilities of its stations.

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This article is no longer available. For more information on this topic, see  AM Daytime Stations to Use October Power for PSSA and PSRA Until Daylight Savings Time Ends  

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Last week, we reported on the FCC's release of a Public Notice announcing the recomputation of new power levels for Pre-Sunrise and Post-Sunset Authority for AM stations.  These computations were done because of the change in Daylight Savings Time that goes into effect this weekend.  We've heard from clients, and saw in yesterday's broadcast trade press, reports that these computations are incorrect for a number of stations - often finding interference to foreign stations where such interference should not be a concern.  While we understand that the FCC is recomputing these authorizations - if you haven't checked the authority that you received last week, do so now, and let your Washington representatives know if you think that there is a problem, so that it can be fixed before the time change this weekend.

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As we've written before, when Congress passed a new law extending Daylight Savings Time, AM stations that adjust power levels at sunrise and sunset would be affected.  Today, the FCC took action to adjust to those differences by announcing changes in Pre-Sunrise (PSRA) and Post-Sunset (PSSA) authority for all AM stations that have such authority.  Effective March 11, the first day of Daylight Savings Time under the new law, all stations with PSRA or PSSA have to begin operating with new parameters announced by the FCC today.

Any station operating with such authority should check the FCC Public Notice, and follow the link set out in that notice, to receive their new operating authority.  Stations should print out their new authorizations from that site, post the new PSSA or PSRA with their other operating licenses, and place a copy of the new authorization in their Public File with all of their other authorizations.  As all old PSSA and PSRA authorizations will be void as of March 11, stations should be sure to check this site and obtain their new authorizations and make sure that they are operating with the proper operating power.  With the FCC's recent propensity to fine stations which are not in full compliance with the FCC rules and their authorizations, stations don't want to take the risk of not operating in compliance with these new standards.

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This article is no longer available. For more information on this topic, see FCC Releases Details on the Processing of Simplified City of License Change Applications  

 

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This article is no longer available. For more information on this topic, see Big Fines for Public File Violation that Escalated 

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The FCC Order announcing a simplification of the procedures for changing cities of licenses of radio stations, and the modification of procedures for amending the FM Table of Allotments, was published in the Federal Register today.  Thus, the new rules will become effective in 30 days, on January 19.  The freeze on FM allotment changes that has been in place for the last year and a half will be lifted on that date.

Substantial questions remain about how these new rules will be implemented in practice.  Informal conversations with FCC staffers have indicated that further explanations of the procedures may be forthcoming.  Issues in the new rules include the fact that only 4 stations may be changed in any single, interrelated filing, which may hamper some of the larger, more complicated facilities changes that have become common over the last few years - and which allow many stations to improve their facilities through interrelated changes. 

There are also issues with city of license changes for noncommercial FM stations, as the new rules as written limit city of license changes to situations where the 1 mv/m contour of the station when moved would overlap with some part of the 1 mv/m service area of the station as currently licensed.  In other services, the limits are that the move must be mutually exclusive with the present facilities (e.g. the interfering and protected contours of the stations would overlap). 

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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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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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According to the agenda for its meeting to be held on Friday, November 3, the FCC will finally adopt changes to its rules on FM allotment procedures and on changes in the city of license of broadcast stations.  The FCC issued its Notice of Proposed Rulemaking in this proceeding in June 2005.  This proceeding includes a proposal to make a city of license change a "minor change," which would not require a rulemaking for FM stations, and would not require a window filing for AM stations.  This could speed the processing of such changes, allowing stations to upgrade and otherwise improve their facilities.

The proceeding also deals with a number of other procedural issues, including whether a station should be allowed to change its city of license if it is the only station licensed to a community (generally prohibited under current rules), and whether the proponent of a new FM allotment should be required to file its Form 301 application for a construction permit (and pay the required filing fee) at the same time as it files a Petition seeking the new allotment (intended to encourage only serious applicants for new channels).

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In a decision released Friday, the FCC's Enforcement Bureau imposed a fine of $7000 on a station for violation of Section 73.49 of the Rules, requiring AM station towers with the potential for RF radiation at their base  to be completely enclosed within a fence or other secure enclosure.  What was notable about this decision is that the FCC rejected claims that the station should not be fined because it did not own the tower.

The Enforcement Bureau found that Section 73.49 imposed a duty on AM licensees, not on tower owners.  Thus, the duty to fence the tower is one that the licensee is responsible for meeting, even if some other party owns the tower.

The FCC noted that for all other towers, the primary duty for maintenance and repair of a tower is on the antenna structure owner, but even then the FCC imposes a secondary duty on the licensee to make sure that all legal obligations are being met.  While the FCC left for another day the issue of what would happen if a licensee did not meet that secondary duty in some case not involving an AM station, they made clear that, for AM stations, the licensee cannot delegate the responsibility for the fencing obligation.

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This article is no longer available. For more information on this topic, see FCC Adjusts AM Stations' Authorizations to Adjust to New Daylight Savings Time

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