FM Translators and LPFM : Broadcast Law Blog

Posted on April 24, 2013 by David Oxenford

Saving AM Radio - What is the FCC Considering?

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.

Tags: AM Radio, AM on FM translators, AM power increase, FM Translators and LPFM, HD Radio, Ibiquity radio, Tell City waiver, digital AM, skywave interference, use of TV channel 5 and 6 for AM radio

Posted on April 4, 2013 by David Oxenford

FCC Processing of Translator Applications from 2003 Moves Ahead - Window for Opting Out of Noncommercial Status to Participate in the Auction

Another radio topic sure to be discussed at the NAB convention this week is the ongoing story of the thousands of FM applications translators still pending at the FCC from the 2003 FM translator window. While this has been a topic at many of the NAB Conventions in the last 10 years, it looks like the end is near. On Tuesday, the FCC adopted yet another order in the processing of these translators, allowing applicants who specified that they were noncommercial operators to amend their applications in a window from April 8 to April 17 to specify commercial operations. That is important to such applicants as, soon after these applications were filed back in 2003, the FCC adopted a policy that said that applicants who elect noncommercial processing could not participate in an auction – and that they would be dismissed if they were mutually exclusive with commercial applicants. Not allowing these applicants the opportunity to amend (as the FCC has done in several other auctions from this period), would mean that the applicants would be dismissed for a defect that had not been announced at the time of their filing.

This is but one more step in the ongoing attempts to complete the processing of these applications so as to permit a new LPFM window later in the year. This will probably mean that thousands of new FM translators will be granted in the coming months – providing opportunities for the expansion of broadcasters' signals, either in the traditional way of filling in holes in the coverage of FM broadcast stations, or by allowing for the retransmission of AM and FM-HD signals. This should prompt many discussions at the NAB Convention as broadcasters look at the opportunities that these new translator stations will present.

Tags: 2003 FM translators, Appearances, FM Translators and LPFM, Low Power Television/Class A TV, NAB Show, Noncommercial Broadcasting, noncommercial broadcaster and FCC auction, translator settlement window

Posted on March 26, 2013 by David Oxenford

April FCC Obligations for Broadcasters - Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership

April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children's television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station's public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC's proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1. Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1.

Posted on March 15, 2013 by David Oxenford

Next Step in Processing 2003 FM Translator Applications - FCC Asks for LPFM Preclusion Studies From Major Market Applicants

The next step in processing of the translators from the 2003 FM translator window is now upon us. The FCC has asked for major market translator applications – those in the "Appendix A markets" (essentially the top 150 Arbitron markets and a few additional ones in which numerous translator applications were filed) and those within 39 km of the grid used in these markets to determine whether future LPFM stations would be available – to file "preclusion studies" in a window between April 1 and April 19. A list of the applications that have to provide such showings can be found here. A preclusion study is a showing that the grant of the proposed translator will not unduly impact LPFM opportunities in that market. The FCC public notice provides the methodology for making such showings as well.

This is one more step toward the clearing of the 2003 translator backlog. Already, as we've written, 700 rural applications have been proposed for grant. Next steps include the formal identification by the FCC of what applications are mutually exclusive with each other, and the opening of a settlement window. Eventually, those applicants not being granted as "singletons" (ones not mutually exclusive with other applications), or as a result of the settlement window, will head to an auction. And the FCC is still shooting for a window in which applications for new LPFM stations can be filed in October. By then, most translators that will have to be protected by LPFM applicants should be identified by the processes that the FCC is going through now. Stay tuned as this long-running saga goes through its final episodes in the next few months.

Update, 3/18/2013 - The FCC just released another public notice detailing what it expects from Preclusion Studies.

Tags: 2003 FM translator processing, Appendix A translators, FM Translators and LPFM, LPFM filing window, processing 2003 translator applications, translator settlement window

Posted on February 28, 2013 by David Oxenford

FM Translator Processing Continues as FCC identifies Over 700 Applications that Can Be Granted - What's Next for Translator Applicants? What Should Broadcasters Be Considering?

Many of the thousands of FM translators that have been pending since 2003 may be approaching the finish line to be granted very soon. The FCC has issued a Public Notice announcing that over 700 applications are now ready to be granted. The applications that are identified on the list are "singletons", or applications that are not mutually exclusive with any other application. Applicants who find their applications on the list need only file a "long-form" application on FCC Form 349 by March 28. A long form application provides full technical information about the applicant's proposal, as well as some ownership information about the applicant. FCC officials have stated that, as long as the long-form application does not change the technical proposals set forth in the short-form applications submitted in 2003, the long form should be granted. Instructions for additional showings that need to be made if changes are made are available here.

So what's next for the 2003 applicants, and what opportunities are there for other radio broadcasters? The clear opportunity for broadcasters is that there are soon going to be about 700 new translators, with many more to come after the settlement window and auction. All of these applications were filed 10 years ago, some of them by parties whose interests may well have changed in that prolonged period of waiting. So there are bound to be at least some translators that will be granted and available for sale or some sort of programming arrangement. Once these 700 translators applications and the other applications from the 2003 window are processed, there will be no other new translators that are possible until the next time the FCC opens a translator filing window – which won't happen for at least a year (and quite possibly well after that), until after the FCC first holds the promised LPFM window later this year (with an October target date) and processes the applications from that window. So now is the time for broadcasters to be reviewing the translator applications that are being granted from the 2003 window to see if there may be opportunities for the broadcaster to find a facility to retransmit an AM station or an HD-2 signal.

Tags: 2003 FM translator window, Appendix A translators, FM Translators and LPFM, translator settlement window, translators for AM radio, translators for HD radio

Posted on February 13, 2013 by David Oxenford

FCC Dismisses 3000 FM Translator Applications from 2003 Filing Window - Next Stop, a Settlement Window?

The FCC last week issued a Public Notice announcing the dismissal of approximately 3000 FM translator applications. This was as a result of its requirement that applicants from the 2003 FM Translator Window select no more than 70 total applications to prosecute (see our articles here and here), and no more than 3 in any Arbitron market where there were significant number of translator applications filed. Applications that did not meet these limits were dismissed.

The FCC is planning to move quickly on the remaining FM translator applications in hopes that they can complete the processing of the backlog of applications so that a window for the filing of new Low Power FM ("LPFM") applications can be opened before the end of this year. So what is the next step in processing these applications? The next significant step will be for the FCC to open a "settlement window" where the remaining applicants can talk to each other and try to reach agreements as to which applications should be granted before an auction. In most FCC auctions, discussions between competing applicants in the auction are strictly prohibited – and applicants who violate the "anti-collusion rules" can be severely punished. But, in authorizing auctions, Congress permitted limited settlement windows in cases involving "secondary" services like translators – leading to the need for a settlement window in connection with these translator applications. No discussion between competing applicants is supposed to occur outside of that window. So be patient but get prepared – as the time to talk to competing applicants in the settlement window should be coming soon.

Tags: 2003 FM translator window, FM Translators and LPFM, anticollusion rule, translator settlement window

Posted on January 8, 2013 by David Oxenford

More Details from the FCC on the Processing of 2003 FM Translator Applications

Last week, we wrote about the first step in the FCC's processing of the remaining applications for FM translators filed way back in 2003. The FCC has required that applicants who have more than one application pending in a market, or more than 50 applications pending nationwide, file an election as to which applications they will continue to pursue under the newly adopted application caps (3 applications per market and 70 nationwide, with no more than 50 applications in the Appendix A markets - the Top 150 markets and a handful of others in which there were a significant number of applications pending). As we said in our article last week, the process is a complex one, as the Commission has established additional criteria that must be met for those desiring to prosecute more than 50 applications nationwide or more than one in a market. Today, the FCC released a public notice that gives examples as to how its election process is supposed to work - giving details of what needs to be filed by applicants with specific numbers of applications pending from the 2003 window. If you have applications still on file from that window, or are interested in such applications (e.g. for rebroadcasting an AM station or an FM HD-2 channel which new translators can retransmit), review this notice carefully before making your elections next week.

Tags: 2003 FM translator applications, FM Translators and LPFM, translators for AM radio, translators for HD radio

Posted on January 7, 2013 by David Oxenford

Gazing Into the Crystal Ball - What Washington Has In Store For Broadcasters in 2013

Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters' audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters. This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC's long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC's considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year.

Posted on January 3, 2013 by David Oxenford

Processing of 2003 FM Translators Continues - January 25 Deadline to Select Applications to Meet Application Caps

As we wrote last month, the FCC has issued an order attempting to resolve the remaining issues between FM translators from the 2003 FM translator window, whose processing has been frozen for over 5 years, and LPFM stations. As part of the Commission's order, it decided that translator applicants would be limited to 3 applications in any "Appendix A market" – essentially the Top 150 Arbitron markets and a handful of other markets with high numbers of translator applicants – and 70 applications nationwide, of which at least 20 must be outside of the Appendix A markets. To move the processing of these applications forward, so that the FCC can get to its goal of clearing out the translator applications so that it can open a window for the filing of new LPFM applications in October, the FCC announced in a Public Notice released just before Christmas that translator applicants with applications pending that would be in excess of either the in-market cap of 3 application or the national cap of 70 applications, need to make elections as to which applications they will pursue during a window from January 10 through January 25. If only it were so simple.

The election is not a simple one – as it goes far beyond simply submitting a list of applications that an applicant seeks to prosecute. Instead, the applicant must meet the other criteria set out by the FCC in its order last month, and information demonstrating such compliance. For applicants seeking to prosecute more than 50 applications, or more than one application in any market, the applicant must show that each of the applications they are pursuing do not have 60 dbu overlap with any other application that they are pursuing, or with any translator authorization that they currently hold. For applicants seeking to prosecute more than 50 translator application (with those applications in excess of 50 having to be outside of the Appendix A markets), the applicant must also show that, at the transmitter site that they propose, there will be an opportunity at their proposed site for at least one LPFM station to operate on another frequency in the upcoming LPFM window. For those seeking to prosecute more than one application in an Appendix A market, the applicant must show that any additional applications will not preclude the use of LPFM opportunities identified through the use of the "grids" that the Commission adopted for measuring LPFM opportunities in their March order on this issue. These are not easy showings to make, so applicants looking to take advantage of these relaxations in the application caps need to get started on their engineering reviews immediately.

Tags: 2003 FM translator window, FM Translators and LPFM, application caps on translator applications, processing 2003 translator applications

Posted on December 4, 2012 by David Oxenford

FCC Moves to Resume Processing of 2003 FM Translator Applications and Toward the Opening of a Window for New LPFM Applications

The FCC offered its solution for the remaining conflicts between LPFM advocates, applicants for new FM translators from the 2003 FM translator window, and full-power FM stations with a series of orders approved by the FCC at its open meeting on Friday. We wrote about some of the issues on the table for the FCC's resolution most recently, here. The full decision rendered on Friday as to FM translator processing was just made available moments ago, and we will analyze it shortly. From the FCC's Press Release on the matter and the statements of the Commissioners, we understand that there were several significant decisions made at the meeting, including:

Allowing applicants from the 2003 translator window to continue to prosecute up to 70 applications remaining from the window, as long as at least 20 of those applications are outside of the Top 150 markets and four other markets that had received significant applications in the 2003 window.
Allowing applicants from the 2003 window to continue to prosecute up to 3 translators in a single market – up from a limit of one in the Commission's previous decision on the matter
Allowing LPFM applicants to receive waivers of the spacing requirements to full-power stations on second adjacent channels if they comply with the same rules as do translator applicants seeking second-adjacent channel waivers – e.g. showing that there is no interference over populated areas, and agreeing to shut off operations if there is interference to the regularly used signal of any FM full-power station
Eliminating the ability for LPFM stations to apply at 10 watts, and apparently rejecting proposals to allow for a class of 250 watt LPFM stations.
Specifically allowing LPFM stations to use FM translators in certain instances
Promising to open a window for the filing of LPFM applications by October 2013.
Changing certain preferences in the point system for awarding LPFM stations

The details set out in the just-released order will be quite important, as they should provide more information about the process for processing the remaining FM translator applications from the 2003 Window, an issue very important to many broadcasters who have been looking at some of these stations as a way to provide rebroadcasts of their AM stations and their HD-2 streams. Full-power broadcasters will also be interested in the details of the complaint process that will apply to new LPFM stations that cause interference to full-power FM stations. And those interested in LPFM will be anxious to see more details on the preference changes for awards in situations where there are mutually exclusive applications for new LPFM stations – including the obligations for shared-time operations in certain circumstances. So watch for further information in the coming days.

Tags: 2003 FM translator window, FM Translators and LPFM, LPFM filing window, LPFM second adjacent channel interference

Posted on November 12, 2012 by David Oxenford

FM Translators and LPFM on FCC Agenda for November 30 Meeting - A Final Resolution for the Pending 2003 Translator Applications?

The relationship between low power FM stations and both FM translators and full-power FM stations will be addressed by the FCC at its open meeting on November 30 – the only issues on the FCC's agenda for that meeting. We expect that two controversial matters will be discussed – (1) the effect that the thousands of FM translators that remain pending from the 2003 translator window will have on LPFM availability and how to deal with those applications and (2) the interference considerations between translators and full-power stations, including issues such as second-adjacent channel interference waivers and the situations in which LPFM interference to full-power stations will require that the LPFM cease operations. For LPFM advocates and applicants, issues are also outstanding about the qualifications for LPFM applicants in an upcoming (yet-to-be announced LPFM filing window), including whether there will be obligations placed on LPFM operations for specific amounts of local program origination.

The FM translator issue has been a long and contentious one. In 2003, during the last FM translator window, thousands of applications for FM translators were filed. LPFM advocates have contended that the grant of these applications would preclude LPFM opportunities. After processing applications for a couple of years, the FCC froze the processing of all the remaining applications, and in 2007 announced that applicants would only be able to prosecute 10 of their remaining pending applications. There were many objections filed to that decision. Last year, the FCC announced a much more granular process for determining which translator applications could be processed, looking on a market-by-market basis at the prospects of LPFM interference, and deciding that translator applications would only have to be dismissed where interference limited LPFM opportunities for a given number of LPFM stations. The Commission also decided that a cap of 50 applications should be imposed on the number of applications that one entity could continue to prosecute, and limited applicants to prosecuting one application per market. See our summary of the FCC decision on the translator-LPFM issues here. These issues are all subject to petitions for reconsideration.

Tags: 2003 FM translator window, FM Translators and LPFM, LPFM third adjacent channel interference, Local Community Radio Act, second adjacent channel interference

Posted on April 6, 2012 by David Oxenford

May 7 Deadline Set for Comments on Proposed Rules on Interference to Full-Power FM by LPFM Stations, and on LPFM Service Rules (Including Proposal for 250 Watt LPFM Stations)

Determining how much interference to full-power FM stations is acceptable from LPFM stations is perhaps, in the long run, one of the most important issues discussed in the FCC's two orders released two weeks ago clarifying the rules for LPFM stations. The FCC's proposals on this issue, and several others, has now been published in the Federal Register, asking for public comments by May 7, with reply comments due May 21. As we detailed when we wrote about the proposals that have now been published in the Federal Register, while the FCC did away with strict mileage limitations on third-adjacent channel spacings between LPFM stations and full-power FMs as required by the Local Community Radio Act ("LCRA"), it did not totally eliminate all interference requirements. Instead, it proposed a two-tier system requiring more remediation efforts by LPFMs that operate at less than what had been the required spacings, and lesser interference for stations that did observe the old mileage separations. The May 7 comment deadline also applies to comments on the FCC's proposals for second-adjacent channel waivers of the required spacings between LPFMs and full-power FM stations, and on changes to the service rules for LPFMs - including allowing them to operate at powers as high as 250 watts ERP in rural areas.

The ruling eliminating the third-adjacent channel spacing rule as required by the LCRA was published in the Federal Register yesterday, meaning that the rule becomes effective on June 4, but practically that should mean little until the FCC addresses the interference-complaint resolution issues addressed in the Further NPRM. The abolition of the third adjacent channel spacing rules did leave in place one limitation, that LPFM stations cannot cause more interference than they can under present rules for stations that offer reading services for the blind.

The Further NPRM also addresses second adjacent channel interference, proposing very strict rules that require an LPFM to cease operations if it creates any interference to a regularly used FM signal - even outside of the full-power station's protected service contours. This is essentially the FM translator interference requirement - which has, in the past, caused many translators to cease operations or change their technical facilities to protect full-power stations. Further details on this proposal are available in our summary of the order. That summary, however, did not address the proposed changes in the LPFM service rules, which we address below.

Tags: FM Radio, FM Translators and LPFM, LCRA, LPFM third adjacent channel interference, Local Community Radio Act, second adjacent channel interference, translator interference standards

Posted on March 26, 2012 by David Oxenford

FCC Clarifies Rules for LPFM - Part 2 - Interference to Full Power FM Stations

In part one of our report on the FCC’s recent actions on LPFM issues, we wrote about the FCC decisions about what to do with pending FM translator applications that may have an impact on LPFM availability. In this part two, we discuss the Commission’s separate order addressing the provisions of the Local Community Radio Act eliminating third-adjacent channel spacing restrictions between LPFM stations and full-power stations and otherwise modifying the interference protection standards that apply to these stations. In a third part of this series, to be published soon, we will report on the proposals for changes in the LPFM service rules.

The impetus driving Congress in its adoption of the Local Community Radio Act ("LCRA") was the desire of LP FM advocates for the elimination of all third-adjacent channel protections between LPFMs and full-power FM stations. While the statutory changes mean that LPFM stations do not need to be spaced at any particular distance from third-adjacent channel FM stations, the changes do not completely eliminate all interference protections afforded to full-power stations. In fact, the LCRA sets up a very extensive scheme where LPFM stations must work to resolve any interference that is created to adjacent channel full-power station. The Commission set forth its reading of the statutory requirements, summarized below, and asked for public comment on that interpretation.

Tags: FM Radio, FM Translators and LPFM, LPFM interference, Local Community Radio Act, third adjacent channel interference

Posted on March 25, 2012 by David Oxenford

FCC Clarifies Rules for LPFM - Part 1 - What to Do With FM Translator Applications From the 2003 Filing Window, and Using Translators for the Rebroadcasting of AM Stations

The status of LPFM stations has been up in the air almost since they were first created over a decade ago, as the FCC has been slow to open a window for filing applications for new stations while controversies about interference with full-power FM stations and FM translators, and other issues, were being hashed out. This past week, the FCC issued two orders interpreting the Local Community Radio Act ("LCRA") passed by Congress in late 2010 (which we summarized here), and clarifying other issues affecting the service. This article will discuss the first of the two orders – attempting to resolve the priorities between LPFM stations and the thousands of applications for new FM translators still remaining to be processed from the FCC’s 2003 FM translator window. Subsequent articles will discuss the second order (which also contains a Notice of Proposed Rulemaking asking for public comment on several proposals). That order and NPRM addresses the interference protections between LPFM and full-power FM stations, the elimination of third-adjacent channel protections, and proposes some changes in LPFM rules, including proposals to allow LPFM stations to operate with up to 250 watts ERP in smaller markets, and even to operate FM translator stations of their own.

The first order attempts to resolve the issues about the FM translator applications that have been pending since 2003. LPFM advocates contend that the thousands of applications that remain to be processed will foreclose LPFM opportunities, particularly in larger markets, by using up all available spectrum. The translator applicants, on the other hand, have contended that translators provide an important service - expanding the reach of noncommercial stations and now allowing new outlets to more readily make available to the public the signals of AM stations and FM HD streams. The order sets out markets where the FCC has found that spectrum is indeed limited for LPFM opportunities, where translator applications will be dismissed to provide opportunities for a certain base level of LPFM service. The order does not fully adopt the system proposed in the FCC's July NPRM in this matter (see our summaries here and here) which would have required the blanket dismissals of all translator applications in spectrum limited markets. Instead, it provides opportunities for some translators to be processed even in these markets with limited LPFM opportunities, where it can be shown that these translators do not in fact block such opportunities. This is detailed below, as are the rules that the FCC has adopted which set local and national limits on the number of applications from the 2003 window that one applicant can continue to process and some changes in the rules regarding FM translator use by AM stations.

Tags: 2003 FM translator window, FM Translators and LPFM, FM translators for AM stations, LCRA, LPFM third adjacent channel interference, Local Community Radio Act, processing 2003 translator applications

Posted on March 1, 2012 by David Oxenford

FCC Prepares to Resolve the Conflicts Between LPFM and FM Translators - Could 10,000 Low Power FM Applications Be On the Way to the FM Band?

The long-brewing debate between Low Power FM advocates and FM translator applicants is on the FCC's tentative agenda for its March open meeting, to be held on March 21. The FCC's agenda includes two items. The first deals with the priorities between the potential spectrum available for LPFM stations and the pending applications for FM translators left to be processed from the 2003 FM translator window. This follows up on the FCC's Notice of Proposed Rulemaking issued in July, proposing to process all of the translator applications pending in certain markets, while dismissing all of the applications remaining in other markets where it appears that spectrum available for LPFM is very limited, and where the grant of translator applications would block LPFM opportunities.

The second item deals with the future processing of LPFM applications in light of the passage of the Local Community Radio Act (summarized here). The LCRA, among other things, lifted the prohibition against predicted third-adjacent channel interference from LPFM stations to full-power FM stations, and also provided for waivers of second adjacent channel interference in instances where the new LPFM would not create any actual interference to other FM users. Where interference would be created, there would be a strict policy, like that which applies to translators, that the LPFM would have to cease operations if there were any interference to a regular user of an FM station - even outside of the station's protected contour. The second item to be addressed by the Commission will give details on how they plan to implement the requirements of the LCRA.

The adoption of these two items will clear the way for a new window for LPFM applications - perhaps later this year. In anticipation of that window, an LPFM advocacy group recently issued a press release indicating that they expected 10,000 new LPFM applications to be filed in an upcoming FM window. Is that number realistic? Who knows, though we'd be surprised if there was really that much pent up demand, especially given the ownership limits on LPFM applications, essentially limiting most parties to one application. But if anything even approaching that number of applications is filed, look for potential problems in the FM band.

Tags: 2003 FM translator window, FM Translators and LPFM, LPFM third adjacent channel interference, Local Community Radio Act

Posted on February 14, 2012 by David Oxenford

FCC Letter Questions Multi-Hop Move of FM Translator - Limits on Availability of Translators for AM Stations?

An FCC letter to the licensee of an FM translator owner asking very specific information about a series of applications to move that translator to a larger market raises question as to whether the FCC is shutting the door on moves of translators from one market to another - where they have often been used to rebroadcast the signal of an AM or an FM HD signal, adding new competition. While this letter does not explicitly say that multi-hop moves of translators are impermissible under FCC rules, the fact that an investigatory letter from the FCC to one applicant is published in the FCC's general releases indicates that a message is being sent by the Commission. And the letter questions whether the large move accomplished by a series of small hops is an abuse of the FCC's processes. The letter asks for the details of each move in the series - where the station was built, who gave permission to use the transmitter sites that were used, how long the station operated at each location, what primary station's signal did the translator rebroadcast at each site, and what the applicant's ultimate purpose in the moves was.

We've written about the FCC's apparent crackdown on FM translator moves - first by simply slowing the processing of such applications, then entering into a consent decree with a monetary penalty and the forfeiture of a translator license by a translator licensee who apparently did not have reasonable assurance of every transmitter site in a multi-hop move, then suggesting that such moves were an abuse of process (while, at the same time, making more limited moves easier). Now it seems to be actually taking steps to enforce the thinking that, where there is an intent to accomplish a "major change by multiple minor change applications", there is an abuse of process. Thus, the FCC seems to be drawing the noose tighter around the ability to move these stations large distances.

The FCC, when it authorized the use of FM translators for AM stations did so with the caveat that only translators that had been granted as of the date of its 2009 order would be allowed to be used for such rebroadcasts. In many markets, this put a premium on existing translators, as there were not enough translators to rebroadcast all the stations that wanted to be rebroadcast - even where the spectrum to locate such translators existed. A number of broadcasters found translators in other communities that could technically fit in the community where the broadcaster operated, and agreed to buy them if they could be moved. Outside a "major change window", translators can only be moved by "minor changes", i.e. where their existing contour overlaps the proposed new contour. During translator windows, larger moves are permitted, but the last translator window was in 2003. Another is not expected for at least another year or, most probably, two or more. To get around the limitation on major changes, translator licensees would file a series of minor change applications to move a translator from one site to another (commonly referred to as a "hop"), build the translator at each site, and, through a series of minor changes, ultimately move to the city where there was an AM station or HD signal that wanted to use that translator. For a time, the FCC seemed fine with this process.

Tags: FM Translators and LPFM, FM translator minor change, FM translator moves, FM translators for AM stations, FM translators for HD signals, moving FM translator

Posted on February 2, 2012 by David Oxenford

Pirates, Pirates Everywhere - Fines Up to $25,000 for Unlicensed Radio Stations

For an industry that some say is about to be made obsolete because of its digital competition, there are still many people who want a piece of the FM spectrum. We've written much about the contest between LPFM and translator proponents seeking their piece of FM spectrum - a contest that we should see resolved by the FCC in the very near future. One topic that we have not written much about is "pirate radio," stations that operate illegally - without FCC authority. This week, the FCC issued several orders, fining individuals up to $25,000 for operating pirate radio stations in various places around the country (see decisions here and here, and two other fines of $20,000 or more noted below). Pirate radio has been and remains a big problem for many broadcasters and, despite the fines in cases like this, pirates seem to continue to crop up - especially in urban markets.

The pirate radio problem has always been with broadcasters. In the past there was both the romance of the outlaw radio operator and concerns over the snake oil salesmen who were broadcasting from stations in Mexico, and there was a famous religious broadcaster who lost a battle with the FCC over the Fairness Doctrine in connection with a real radio station and then resumed operations from a boat off the coast of New Jersey. But in the last 20 years pirates have been much more localized, low power operators, trying to reach audiences largely in urban areas. Despite a series of court decisions rejecting any First Amendment claim of pirates, and denying any claim that these low-power, local stations did not implicate the FCC's power over interstate commerce regulation, pirates have never gone away. In many ways, the FCC introduced the concept of Low Power FM stations in the 1990s as a way to provide an outlet for those who might otherwise be inclined to operate an unlicensed station. In fact, one of the big arguments at the time of the initiation of LPFM was whether former pirate radio operators should be allowed to apply for LPFM stations.

Tags: FCC Fines, FM Translators and LPFM, pirate radio, unlicensed radio operators

Posted on October 19, 2011 by David Oxenford

FM Translator for HD-2 Signal Shut Down By FCC After Interference Complaints - Can't Remedy Complaint By Giving Phones With Internet App to Complaining Listeners

The FCC this week ordered an FM translator in Detroit to shut down as it caused interference to the reception of a full-power FM station from Toledo. The translator had been rebroadcasting the HD2 signal of another area station, in effect introducing a new analog station in the Detroit area, to bring back a smooth jazz format that had left the city a few years ago. But the translator caused interference to the reception of the Toledo station in areas where the Toledo station was regularly used and, in the eyes of the FCC, the translator's operator was able to provide no relief to the complaining listeners. Thus, it was ordered off the air. Translators are required to shut down if they create interference to the regularly used signal of a full-power station, even outside of that station's protected contour. This happens somewhat regularly, so that part of the FCC decision is not particularly unique. What is unique was that the FCC rejected attempts to resolve the interference by giving the complaining listeners mobile phones capable of picking up the Toledo station's programming through a mobile "app" on the phone. The case also chastised the translator licensee for posting the names of the complaining listeners on its website.

As we wrote in a recent post, Section 74.1203 of the FCC rules requires that a translator cease operations if it interferes with the regularly used signal of a full-power FM station. Objectors need to show that there are specific listeners who regularly listen to a full-power station, and that the translator creates interference to the reception of that signal in areas where these listeners had heard the station before the translator started to operate. In the past, to get rid of these objections, translator operators have purchased the listeners who complain filters for their radios, or even new radios or other devices to overcome the interference objections. In this case, the translator licensee went further when such traditional methods did not resolve the interference. The translator operator bought the objectors mobile phones with an iHeartRadio mobile app that could receive the primary station (a Clear Channel station). The FCC rejected that solution, finding that a non-broadcast solution to broadcast interference imperiled broadcast service - "a free over-the-air system that is and must remain a vital source of news, information and programming for all Americans" (emphasis in the original). Thus, the translator was required to sign off unless and until it could resolve all interference claims. Given that the Toledo station had only provided objections from those who complained about interference inside of the station's protected contour, the FCC said that it would anticipate that many more objections would be submitted if it accepted the mobile app solution, and that it was likely that it would have to look at all sorts of different solutions to those future objections. The Commission ordered the translator station off the air, and suggested that it might be difficult for it to restart operations on its current channel, which was co-channel with the Toledo station.

Tags: FM Translators and LPFM, FM translator interference, Section 74.1203, interference from translators, translators for HD radio

Posted on September 2, 2011 by David Oxenford

New Policy on FM Translator Moves - Bigger Moves Permitted In One Hop, But Multiple Hops are an Abuse of FCC Processes

The FCC today made it easier to move an FM translator from one location to another, but at the same time adopted new policies that seemingly restrict how far a translator can be moved. Today's decision uses a waiver process to relax the rules so as to permit a move of a translator a greater distance in a single application, but the decision also labels multi-hop moves as an abuse of the Commission's processes. As translators have become more important to broadcasters as a way to bring AM and HD-2 signals to a wider audience, this decision will have an immediate and significant impact on many broadcasters, once it becomes clear exactly what are the parameters set by the Commission.

Under Section 74.1233(a) of the FCC rules, a minor change for an FM translator requires that the facilities proposed in an application have a 60 dbu contour that overlaps with the translator's current licensed 60 dbu. In effect, this is saying that part of the protected service area of the proposed new facility must overlap with the current protected service area served by the station from its licensed facility. As major change applications can only be filed during designated translator windows (and there has been no FM translator major change window since 2003), to make any move in a translator, it must be a minor change. The decision today allows, through a waiver of the rules, a minor change application to be used if the licensed facilities preclude construction of the new facilities, i.e. if the interfering contour of the licensed facilities of the translator overlap with the protected contour specified by the application for new facilities. A the interfering contour goes much further than the protected contour, this allows the FCC to approve in a single application a move of a greater distance than would be allowed under a strict reading of the rule. However, there were significant conditions imposed on the application of this new waiver policy that may preclude longer moves that have been common in the last few years.

Tags: FM Translators and LPFM, FM translator minor change, FM translator moves, FM translators for AM stations, FM translators for HD signals, moving FM translator

Posted on August 29, 2011 by David Oxenford

FCC Extends to September 6 the Comment Deadline for LPFM/FM Translator Proceeding

The FCC just issued a public notice extending the comment deadline in its proceeding to determine how to process the FM translator applications pending from the 2003 FM translator window so as to not unduly preempt opportunities for new LPFM stations. Comments were originally due to be filed today, but the deadline has now been extended to September 6, based on transportation and communications concerns in light of the disruptions caused by Hurricane Irene. Reply comments will now be due on September 20. We summarized the issues in this proceeding here and here. Many are awaiting the conclusion of this proceeding - including those who have had an 8 year wait for the processing of FM translator applications from the 2003 Window as well as those looking forward to the opening of a window for applications for new LPFM stations. Presumably, this short delay in the comment deadline will not unduly delay this highly contested proceeding, as the Commission will no doubt have many technical and legal issues to resolve, some stemming need to interpret the meaning of the Local Community Radio Act enacted by Congress late last year.

Tags: FM Translators and LPFM, FM Translators and LPFM, LPFM filing window, Local Community Radio Act

Posted on July 29, 2011 by David Oxenford

August 29 Deadline for Comments on LPFM and FM Translator Processing - Looking to Unfreeze 2003 FM Translator Applications and to Open a New LPFM Window

August 29 will be the deadline for initial comments on the FCC's proceeding to set the relationship between applications for new LPFM stations and those for FM translators, a date set forth in a Federal Register publication of the FCC's Notice of Proposed Rulemaking on this topic. We wrote about the FCC's NPRM here. But it bears emphasizing that the decisions made in this proceeding will impact the processing of the thousands of FM translator applications still pending from the window opened for these applications back in 2003, and the potential for a new filing window for LPFM applications in the near future. The NPRM also will decide whether FM translators can be used for the rebroadcast of an AM station if that translator was granted after the FCC first authorized the rebroadcast of AM stations by FM translators. Up to this point, AM stations can only use translators granted before May 1, 2009 to rebroadcast their signals.

Issues to be addressed in this proceeding include:

Whether the FCC's proposal to use a market based analysis to determine which 2003 translators can continue to be processed (dismissing all translators when there were few opportunities for new LPFM stations) is justified?
Whether the technical basis of that analysis is accurate (as the FCC used the same model to assess the availability of channels in a market - overlaying a grid onto each market, and determining if LPFM opportunities existed at set points on that grid - the grid size was uniform in all markets, even though markets obviously are not uniform in size and shape)
Whether the assumptions about the number of LPFMs that are needed in each market were justified (the FCC concluding that there should be opportunities for at least 8 LPFMs in the Top 20 markets, 7 in Markets 21-50, 6 in Markets 51-100, and 5 in Markets between 101 and 150 and in smaller markets where at least 4 translator applications are pending - if there were not that many opportunities available, then all the FM translators pending in that market were proposed to be dismissed).
How should future opportunities for filing new LPFM and FM translator applications be handled? What would be the priorities between such applications?

In addition, while this proceeding is pending, all "move-ins" of FM translators into rated markets, where they have become much in demand to rebroadcast AM signals or signals from HD-2 stations, are frozen. So, many are anxious for the resolution of this proceeding - not only those with 2003 FM translator window applications still pending and those who are anxious to file for new LPFM stations, but also those looking to move a translator into a larger market (and we're sure that the FCC is anxious to resolve this matter too). So file your comments by the August 29 deadline, and your replies by September 12.

Tags: 2003 FM translator window, FM Translators and LPFM, FM translators for AM stations, FM translators for HD signals, LPFM filing window, priority between FM translators and LPFM stations

Posted on July 12, 2011 by Brendan Holland

FCC Adopts Rule Making to Chart a Path to the Licensing of New LPFM Stations

At today's FCC open meeting, the Commission adopted a Notice of Proposed Rule Making ("NPRM") to begin the process of implementing the Local Community Radio Act of 2010, passed by Congress last year, and to chart a path to the licensing of new LPFM stations. (See our earlier posting here regarding the Local Community Radio Act of 2010.) While today's item does not attempt to address all of the issues raised by the Act, it starts the implementation process and seeks to develop processing policies for FM translator applications, resume the licensing of pending translator applications, and establish a framework for licensing new LPFM stations.

One of the most significant aspect of the NPRM is the Commission's tentative conclusion that the earlier "ten application limit" that it previously imposed on pending FM translator applications would not further the statutory mandate of licensing new LPFM stations, as the limit does not take geographic or market differences into consideration and the remaining translator applications would still block new LPFMs in numerous markets, according to the Media Bureau's analysis. In today's item, the Commission proposes to eliminate the earlier ten application limit and consider other alternatives for potentially dismissing previously filed translator applications in order to ensure that new LPFM applications can be granted. Specifically, the FCC seeks comment on several options, including: 1.) Dismissing all pending FM translator applications and make plans for a new joint window for both LPFM and FM translators; 2.) Not dismissing any FM translator applications, but rather establish a priority for future LPFM applications; and 3.) Adopting a market-specific translator application dismissal processing policy to clear out pending FM translator applications in certain markets.

The NPRM also raises questions regarding how the Commission should assess the needs of the local community -- which the Act instructs it to consider when making licensing decisions between LPFM and translators. These questions go to the fundamental nature of each class of station and the type of service they can, and/or must, provide to the public consistent with their respective licensing rules. In addition, the NPRM seeks input on how to interpret the Act's requirement that translators and LPFMs are to be afforded "equal status". Here, the Commission starts with the question of whether the Act's mandate that it treat LPFM and translator "stations" co-equal allows it to give priority to later-filed LPFM "applications" over pending FM translator "applications". Reading the NPRM it is clear that the broadly worded Act was big on goals and short on specificity, as today's item now seeks to put the rubber to the road and figure out how to balance the two services, and how exactly to process applications from the two services while ensuring opportunities for new LPFM stations on the one hand, and yet treating FM translators on a "co-equal basis" on the other hand.

The Commission also seeks comment on processing policies to deter the potential for speculative abuses among translator applicants, and comment on the use of FM translators to rebroadcast the signals of AM stations. Both the NPRM and several of the Commissioners support the use of FM translators to rebroadcast AM stations, however, the current policy only authorizes such rebroadcasts on FM translators that had licenses or permits as of May 1, 2009. The FCC asks whether it should extend that policy to permit AM rebroadcasts on FM translator applications that were on file as of May 1, 2009. The FCC is moving quickly on this proceeding, and Comments will be due 30 days after publication in the Federal Register, with Reply Comments due 45 days after publication.

Tags: AM on FM, FM Translators and LPFM, FM translators, LPFM, Local Community Radio Act, low power FM, low power window

Posted on June 15, 2011 by David Oxenford

The Bumpy Road of Using FM Translators to Rebroadcast AM Stations or HD-2 Channels

In recent years, FM translators have become more and more important to broadcasters, as they are being used to rebroadcast AM stations and HD-2 channels, giving the programming broadcast on these over-the-air signals new outlets in many markets. However, there have been some bumps in the road to the introduction of these new outlets. These bumps have arisen both from attempts to move these translators significant distances without observing all the obligations of FCC rules and policies, and in connection with translator stations that have started operations only to find that there were interference complaints from a broadcaster on an adjacent channel in some nearby market. So, while translator stations have provided many opportunities to broadcasters, those looking at translators to rebroadcast one of their signals should be aware of these potential pitfalls that have arisen in a few cases.

Perhaps the worst case involved an translator licensee in Florida, who was attempting to move translators from the Florida Keys into the Miami area. Under current rules, an FM translator licensee can only move a translator from one location to another if the current coverage of the translator overlaps with the proposed coverage area of that station, unless the applicant waits for an infrequent translator window (the last was held in 2003) where the application can file a "major change" and would be subject to competing applications, . Because of this requirement, it sometimes it takes multiple "hops" to move a translator from one location to another where someone might want to use it to rebroadcast an AM station or an HD-2 signal. At each hop, the translator licensee must build the station, get it licensed, and then file to move to the next location until it is ultimately located at its desired location. Each hop can take months to process by the FCC, to build and operate. The recent case shows the problems that can arise in connection with these hops if an applicant attempts to cut corners.

Tags: FM Translators and LPFM, interference from translators, translators for AM radio, translators for HD radio

Posted on June 9, 2011 by David Oxenford

Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine

The FCC today heard from its Future of Media task force, when its head, Steven Waldman presented a summary of its contents at its monthly meeting. At the same time, the task force issued its 475 page report - which spends most of its time talking about the history of media and the current media landscape, and only a handful of pages presenting specific recommendations for FCC action. The task force initially had a very broad mandate, to examine the media and how it was serving local informational needs of citizens, and to recommend actions not only for the FCC, but also for other agencies who might have jurisdiction over various media entities that the FCC does not regulate. Those suggestions, too, were few in the report as finally issued. What were the big headlines for broadcasters? The report suggests that the last remnants of the Fairness Doctrine be repealed, and that the FCC's localism proceeding be terminated - though some form of enhanced disclosure form be adopted for broadcasters to report about their treatment of local issues of public importance, and that this information, and the rest of a broadcaster's public file, be kept online so that it would be more easily accessible to the public and to researchers. Online disclosures were also suggested for sponsorship information, particularly with respect to paid content included in news and informational programming. And proposals for expansion of LPFMs and for allowing noncommercial stations to raise funds for other nonprofit entities were also included in the report.

While we have not yet closely read the entire 475 page report, which was tiled The Information Needs of Communities: The Changing Media Landscape in a Broadband Age, we can provide some information about some of the FCC's recommendations, and some observations about the recommendations, the process, and the reactions that it received. One of the most important things to remember is that this was simply a study. As Commissioner McDowell observed at the FCC meeting, it is not an FCC action, and it is not even a formal proposal for FCC action. Instead, the report is simply a set of recommendations that this particular group of FCC employees and consultants came up with. Before any real regulatory requirements can come out of this, in most cases, the FCC must first adopt a Notice of Proposed Rulemaking, or a series of such notices, and ask for public comment on these proposals. That may take some time, if there is action on these suggestions at all. There are some proposals, however, such as the suggestion that certain LPFM rules be adopted in the FCC's review of the Local Community Radio Act so as to find availability for LPFM stations in urban areas, that could be handled as part of some proceedings that are already underway.

Tags: FM Translators and LPFM, Fairness Doctrine, Local Community Radio Act, Noncommercial Broadcasting, Payola and Sponsorship Identification, Programming Regulations, Public Interest Obligations/Localism, Zapple Doctrine, enhanced disclosure, fundraising for noncommercial broadcasters, future of media, information needs of communities, online public file, public service obligations, public trustee

Posted on May 10, 2011 by David Oxenford

FCC to Study Economic Effect of LPFM on Full-Power FM - But Not the Economic Impact of Any Interference that May Be Caused

As part of the Local Community Radio Act which, among other things, repealed restrictions against protecting full-power FM stations from third-adjacent channel interference from LPFM stations, Congress required that the FCC conduct a study of the economic impact that such stations will have on full-power FM stations. The FCC began the process of conducting that study, asking for public comment on a series of questions designed to look at that impact. Comments are due on June 24, 2011, with reply comments to be filed by July 25. The Commission asks for comments in two general areas, asking what impact LPFM will have on full-power stations' revenues and on their audience share, but tentatively decided that it would not look at any economic impact that interference from LPFM would have on full-power stations.

What led the FCC to this tentative conclusion? The FCC said that the Act did not specifically require any study of the economic impact of interference and, since the principal purpose of the Act was to set out how the FCC should deal with interference remediation, Congress had already addressed all that needed to be considered about any potential interference. This view was bolstered by the inclusion in previous legislation of a specific directive to study interference, which led to the report from the MITRE Corporation. That report concluded that there would be no substantial interference from LPFM to full-power stations, which opened the door to the passage of the Act. Thus, the Commission reached the tentative conclusion that no additional study of the economic impact of LPFM was necessary, but they seek comment on that tentative conclusion. We expect that there will be such comments.

Tags: FM Radio, FM Translators and LPFM, LPFM third adjacent channel interference, MITRE report on LPFM interference, impact of LPFM on full power stations, underwriting announcement

Posted on December 20, 2010 by David Oxenford

Bill Changing LPFM Spacings But Protecting FM Stations Passes Congress - After NAB Assures More Protections to Broadcasters

The Local Community Radio Act has been pending in Congress, ready to be approved for many months, but held up by the Senate. This weekend, as the Congressional term was drawing to a close, both the House and the Senate approved a bill modifying the interference standards for Low Power FM radio stations, opening the possibility that more channels will be available for LPFM use when the next window for filing new LPFM applications opens. However, this bill is substantially modified from the LPFM bill that was just passed by the House of Representatives earlier this year (see our summary of the House version of the bill). The NAB has been working with the LPFM advocates to adopt a bill with substantially more protections for full-power stations, while still allowing LPFMs to locate on channels third adjacent to full power stations. The bill passed by Congress and soon to be signed by the President makes substantial changes to the original House version, and seemingly provides many such protections. Specifically, the final legislation is different from the old bill in many ways including:

It does away with all the introductory language in the original House bill that contained many Congressional findings about the value of LPFM stations, language that could have been used to justify FCC actions in the future that would be unfavorable to the interests of full-power stations.
It specifically forbids the FCC from amending the distance requirements between LPFM and full-power stations for first and second adjacent channel operations. It does allow for waivers of these separations, but requires LPFMs to cease operations if complaints of interference to a full-power station are received.
It makes clear that LPFM stations are secondary to full power stations, both as they currently exist and as they may be modified in the future.
The law specifically requires that the FCC treat LPFM and FM translators and FM boosters as being equal in status, and secondary to full-power stations (both existing and modified full-power stations) – thus seemingly ending some of the LPFM proposals that would allow LPFM stations to preempt existing FM translators.
For LPFMs that are located at less than the full distance from a full-power station set out by the LPFM rules, even on a third adjacent channel, the LPFM must provide the same protections that translators give to other stations under Section 74.1203, which includes the requirement that a new secondary station (like a translator or LPFM) cease operations if it interferes with the reception of any regularly used FM signal (even if the signal is outside of the existing station’s primary service contour)
The bill adds a provision to protect stations in certain densely populated states (principally if not exclusively New Jersey) by imposing the translator interference rules on LPFM stations (seemingly the same provision as provided for stations in other states when the LPFM is operated at less than the current spacings.

This bill does contain some provisions that are not entirely clear, and in some cases, provisions that seem a bit contradictory. These issues will no doubt be sorted out by the FCC, and potentially by Congress itself, in the future.

Tags: FM Translators and LPFM, priority between FM translators and LPFM stations, processing 2003 translator applications, third adjacent channel interference

Posted on May 3, 2010 by David Oxenford

FM Analog Translator Can Rebroadcast FM Digital Multicast Programming - Opportunities for New Signals in Local Markets

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.

Tags: AM Radio, Digital Radio, FM Radio, FM Translators and LPFM, FM translators for AM stations, FM translators for HD signals, FM translators multiple ownership rules, HD radio multicast channels, originating programming on FM translator

Posted on January 7, 2010 by David Oxenford

Looking Into the Crystal Ball - What Can Broadcasters Expect from Washington in 2010?

Another year is upon us, and it’s time for predictions as to what Washington may have in store for broadcasters in 2010. Each year, when we look at what might be coming, we are amazed at the number of issues that could affect the industry – often issues that are the same year to year as final decisions are often hard to come by in Washington with the interplay between the FCC and other government agencies, the courts and Congress. This year, as usual, we see a whole list of issues, many of which remain from prior years. But this year is different, as we have had a list topped by issues such as the suggestion that television spectrum be reallotted for wireless uses and the radio performance royalty, that could fundamentally affect the broadcast business. The new administration at the FCC is only beginning to get down to business, having filling most of the decision-making positions at the Commission. Thus far, its attention has been focused on broadband, working diligently to complete a report to Congress on plans for implementation of a national broadband plan, a report that is required to be issued in February. But, from what little we have seen from the new Commission and its employees, there seems to be a willingness to reexamine many of the fundamental tenants of broadcasting. And Congress is not shy about offering its own opinions on how to make broadcasting "better." This willingness to reexamine some of the most fundamental tenets of broadcasting should make this a most interesting, and potentially frightening, year. Some of the issues to likely be facing television, radio and the broadcasting industry generally are set out below.

Television Issues.

In the television world, at this time last year, we were discussing the end of the digital television transition, and expressing the concern of broadcasters about the FCC’s White Spaces decision allowing unlicensed wireless devices into the television spectrum. While the White Spaces process still has not been finalized, that concern over the encroachment on the TV spectrum has taken a back seat to a far more fundamental issue of whether to repurpose large chunks of the television spectrum (if not the entire spectrum) for wireless users, while compressing television into an even smaller part of what’s left of the television band – if not migrating it altogether to multichannel providers like cable or satellite, with subscription fees for the poorest citizens being paid for from spectrum auction receipts. This proposal, while floated for years in academic circles, has in the last three months become one that is being legitimately debated in Washington, and one that television broadcasters have to take seriously, no matter how absurd it may seem at first glance. Who would have thought that just six month after the completion of the digital transition, when so much time and effort was expended to make sure that homes that receive free over-the-air television would not be adversely impacted by the digital transition, we could now be talking about abolishing free over-the-air television entirely? This cannot happen overnight, and it is a process sure to be resisted as broadcasters seek to protect their ability to roll out new digital multicast channels and their mobile platforms. But it is a real proposal which, if implemented, could fundamentally change the face of the television industry. Watch for this debate to continue this year.

Posted on October 18, 2009 by David Oxenford

House Committee Passes Bill to Allow for More LPFM Stations - With Some Protections for Existing Broadcasters

Last Thursday, the possibility of more Low Power FM (LPFM) stations came a step closer, as a subcommittee of the House of Representatives Energy and Commerce Committee passed a bill (the text of which is here) which would remove existing Congressional restrictions on the FCC adopting rules to ignore potential interference from new LPFM stations to full power FMs operating on third-adjacent channels. With this committee approval coming at the same time as the Senate Judiciary Committee's approval of a bill that would authorize a sound recording performance royalty on radio broadcasters' over-the-air programming, this was not a good day legislatively for traditional broadcasters. But it certainly could have been worse, as the LPFM bill does contain new provisions that would serve to extend some protection to existing broadcasters from interference from new LPFM stations. Perhaps because of these new protections, the committee action was unanimous.

The new protections built into the bill include the following:

Protection for third-adjacent channel full-power FM stations providing reading services for the blind
Providing protection for FM translator input signals from interference from new LPFM stations
For a year after a new LPFM goes on the air, it must broadcast notices that any listener who experiences interference to another FM station or FM translator from this new LPFM should report that interference to the LPFM station. In the event that interference is reported:
- The LPFM must notify the FCC and the third-adjacent channel station that is getting interference
- The LPFM station must address the interference that arises
- The FCC is charged with looking for ways to assist the LPFM in remediating interference, including allowing co-location of the LPFM at the same tower site as the FM station or FM translator to which interference is being caused
- The FCC will investigate allegations of interference from an FM broadcaster or FM translator, no matter how far that interference is from the station, and even if the interference is to mobile reception

The bill does not say, however, what happens if the interference is not remediated. Under current FCC rules for the FM translator service, a new translator must sign off if interference to existing stations cannot be resolved. The bill does not specify that remedy for LPFM. This issue remains to be resolved if the bill eventually passes Congress.

Tags: FM Translators and LPFM, FM translators for AM stations, LPFM interference, TV channel 6 used for radio, interference protection of translator input channels, low power FM stations, priority between FM translators and LPFM stations, reading services for the blind, use of TV channel 6 for LPFM

Posted on September 1, 2009 by Brendan Holland

Beginning Oct. 1st AM Radio Comes to the FM Dial

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.

Tags: AM Radio, AM on FM, AM rebroadcasts, FCC, FM Translators and LPFM, FM translators, rebroadcasting AM, translators

Posted on June 29, 2009 by Brendan Holland

FCC Adopts Rules Permitting AM Rebroadcasts on FM Translators

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.

Tags: AM, AM Radio, AM on FM, FM Radio, FM Translators and LPFM, FM translators, FM translators for AM stations, rebroadcast AM

Posted on June 22, 2009 by David Oxenford

LPFM - When a Secondary Service Becomes Primary

When the Low Power FM service was first authorized, it was as a "secondary service," though a recent court decision shows how that secondary status is becoming less and less a reality. A secondary service is traditionally one that can be allotted where there are no other uses for a particular frequency, and which is subject to being bumped off the spectrum should there be another demand for that spectrum by a "primary" user. LPFM stations were originally supposed to provide service to areas between full-power FM radio stations, and to be bumped off the air if there was a new FM station authorized or a change in the frequency or power of an existing station. A decision of the Court of Appeals released earlier this month , upholding an FCC order giving more protections to LPFM stations, puts this secondary service into question.

The Court decision upheld the Commission's decision, about which we wrote here, determining that waivers of second adjacent channel interference limitations between LPFM and full power stations should be permitted to help preserve LPFM service. In addition, the Court upheld the FCC's process in adopting a new "interim" policy which provides that, where an LPFM is providing 8 hours a day of local programming and would be knocked off the air by an upgrade or city of license change of a full-power station, the LPFM station could apply for a waiver of its secondary status, and there would be a rebuttable presumption in favor of such a waiver. If the waiver is granted, the LPFM station would be preserved, and the application of the full-power station dismissed. Thus, effectively, LPFM would no longer be secondary, but instead will have assumed a primary, protected status.

Tags: FM Radio, FM Translators and LPFM, FM translators for AM stations, FM upgrades, LPFM interference, LPFM protection, adjacent channel interference, secondary service

Posted on June 16, 2009 by David Oxenford

FCC Seeks More Comments on Possible HD Radio Power Increase - Should LPFM Be Protected?

Last month, the FCC released a Public Notice requesting further comments on the proposal to increase the power of HD radio operations. We have written about that proceeding a number of times, including posts here and here. The increased power for the digital radio signals has been sought by many broadcasters who believe that current HD radio power levels do not produce strong enough digital signals to penetrate buildings and fully serve radio markets. On the other hand, other broadcasters fear that the increased power for the digital signals will create interference to existing analog stations operating on adjacent channels. Today, the FCC set the dates for the filing of these additional comments - comments are due on July 6, with replies due on July 17.

While comments have already been filed on the proposal to increase digital power, the FCC has raised a number of specific issues on which it wants comments, especially in light of the studies sponsored by NPR in cooperation with a number of other broadcasters, which seek to do a comprehensive review of the interference potential of higher powered digital operations. NPR is shooting to have that report to the FCC in September. The specific questions raised in the new FCC notice are:

Whether the FCC should wait to decide on the power increase proposal until after the NPR study is done
Whether current operations by radio stations operating in HD, and the various tests that have already been run, demonstrate the need for higher power operation on a permanent or provisional basis
Whether new standards of interference to adjacent channel stations should be adopted, and if the interference should also protect LPFM stations
Whether there should be specific procedures adopted to resolve any interference issues that do arise.

Tags: FM Translators and LPFM, HD Radio, HD radio interference, Higher power for HD radio, IBOC, LPFM, LPFM interference, LPFM protection, low power FM

Posted on February 19, 2009 by David Oxenford

FCC Denies Temporary Authority for AM Station to Use FM Translator Frequency For Which No Authority Had Been Granted

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.

Tags: AM Radio, FM Translators and LPFM, FM translators for AM stations, Nevada LPFM, do you need licensed translator to rebroadcast AM station, temporary authority for FM translators

Posted on September 24, 2008 by David Oxenford

Proposal for FM Translators for AM Stations Deleted From FCC Agenda - Along With Many Other Broadcast Items

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.

Tags: AM Radio, AM proof of performance, FM Translators and LPFM, FM translators for AM stations, General FCC, LPFM

Posted on September 8, 2008 by David Oxenford

AM Stations on FM Translators to be Considered at Next FCC Meeting?

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.

Tags: AM Radio, AM on FM translators, AM stations, FM Translators and LPFM, special temporary authority

Posted on August 23, 2008 by David Oxenford

What to Do With TV Channels 5 and 6 - Proposals to Turn Them Over to Radio Services

The Digital Television conversion has allowed the FCC to reclaim significant portions of the TV spectrum for wireless and public safety uses - television channels above 51 will no longer be used for broadcast TV at the end of the analog to digital transition. But, as part of the FCC's Diversity proceeding (see our post here), a proposal dealing with the other end of the TV spectrum is being considered - whether to remove Channels 5 and 6 from the television band and instead use these channels for FM radio. These channels are adjacent to the lower end of the FM band. Because of this adjacency, the existence of TV Channel 6 in a market can limit the use of the lowest end of the FM band (used for Noncommercial Educational stations) to avoid interference to the TV station. Similarly, Channel 6's audio can be heard on many FM radio receivers, a fact that has recently been used by some LPTV operators to use their stations to deliver an audio service that can be received by FM radios (see our post on this subject). In comments filed in the Diversity proceeding, parties have taken positions all across the spectrum - from television operators who have opposed using the channel for anything but television, to those suggesting that the channels be entirely cleared of television users and turned into a digital radio service. Proposals also suggest using the band for LPFM operations, and even for clearing the AM band by assigning AM operators to this band to commence new digital operations.

In comments that our firm submitted on behalf of a group of noncommercial FM radio licensees who also rebroadcast their signals on a number of FM translator stations, we suggested that Channel 6 could provide a home for LPFM operations, instead of trying to squeeze those stations into the existing FM band. There are currently proposals to squeeze more LPFM stations into the FM band by supplanting some FM translators (see our summary of some of those proposals here). In these comments in the Diversity proceeding, we pointed out that, as there are currently radios on the market that receive 87.9, 87.7 and even 87.5, using these three channels for LPFM service would provide an immediate home to these stations, and far more opportunity for than LPFM would have in the already congested FM band. These opportunities would exist even in most of the largest radio markets in the country, except in the handful of markets where a Channel 6 television station will continue to operate after the digital transition. By adopting this proposal, the service that would be provided by FM translators would not be threatened.

Tags: AM station, Digital Radio, Digital Television, FM Radio, FM Translators and LPFM, FM translator, LPFM, LPTV, NCE station, analog TV, broadcast diversity, channel 5, channel 6, digital TV, digital transition, noncommercial educational station

Posted on May 29, 2008 by Brendan Holland

REVISED Comment Date for FCC Diversity Proceeding -- Comments now due June 30th

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.

Tags: AM Radio, AM expanded band, EEO Compliance/Diversity, FM Radio, FM Translators and LPFM, Low Power Television/Class A TV, Multiple Ownership Rules, designated entities, diversification of ownership

Posted on May 15, 2008 by David Oxenford

Broadcasters and the Regulatory Pendulum - Swinging Toward More Regulation

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

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

Tags: Advertising Issues, Digital Television, EEO Compliance/Diversity, EEO regulation, FM Translators and LPFM, Form 395, General FCC, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, broadcast regulation, enhanced disclosure, main studio, marketplace regulation, media business, media competition, public inspection file, public interest, reregulation

Posted on April 12, 2008 by David Oxenford

FM Translator Applications to be Processed, But Some Dismissals Postponed

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

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

Tags: 2003 translator window, FM Translators and LPFM, FM translators, LPFM, low power FM

Posted on March 10, 2008 by David Oxenford

Deadline for FM Translator Applicants To Select 10 Applications to Continue to Prosecute

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

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

Tags: FM Translators and LPFM, FM translator, LPFM, engineering solutions, low power FM, settlement window

Posted on March 6, 2008 by David Oxenford

Dates Set for Comments on the Relationship Between Low Power FM Stations, FM Translators, and Full Power FM Upgrades

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

Tags: FM Radio, FM Translators and LPFM, FM translators, FM upgrades, LPFM, low power FM

Posted on February 13, 2008 by Brendan Holland

Comments in Localism Proceeding due March 14

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.

Tags: AM Radio, Digital Television, FM Radio, FM Translators and LPFM, General FCC, Programming Regulations, Public Interest Obligations/Localism, Television

Posted on January 24, 2008 by David Oxenford

Correction - Comment Date Not Set on LPFM/Broadcaster Relationship

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

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

Tags: FM Radio, FM Translators and LPFM, FM interference, FM translators, FM upgrades, LPFM, low power FM

Posted on January 17, 2008 by David Oxenford

Comment Date on the Relationship of Low Power FM Stations to FM Full Power Stations and Translators Set

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

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

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

Tags: FM Radio, FM Translators and LPFM, FM interference, FM translators, FM upgrades, LPFM, low power FM, secondary service

Posted on November 30, 2007 by David Oxenford

Who Needs LPFM? - Why Not Just Expand the FM Dial?

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

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

Tags: Digital Television, FM Radio, FM Translators and LPFM, FM band, FM channels, FM receivers, LPFM, LPTV, Low Power Television/Class A TV, TV channel 6, digital transition, low power FM, low power TV, pirate radio

Posted on November 27, 2007 by David Oxenford

FCC Meeting Adopts Rules Favoring LPFM, Restricting Translator Applications, and Possibly Impeding Full Service FM Station Upgrades

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

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

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

Tags: FM Translators and LPFM, FM applications, FM translator, FM translators for AM stations, LPFM interference, LPFM sale, LPFM transfer, city of license changes

Posted on November 20, 2007 by David Oxenford

FCC Meeting to Consider LPFM Reform, Public Interest Requirements for TV Stations, and Minority Ownership Proposals

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

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

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

Tags: EEO Compliance/Diversity, FM Translators and LPFM, LPFM, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, Quarterly Issues Programs List, broadcast ownership, minority ownership, new entrants, public file, public interest obligations

Posted on November 6, 2007 by Brendan Holland

Comment Date Set for Proceeding Regarding Use of FM Translators by AM Stations

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.

Tags: AM, AM Radio, AM on FM translators, AM stations, FM Radio, FM Translators and LPFM, FM translators

Posted on November 4, 2007 by David Oxenford

Shape of Things To Come: New Public Interest Obligations, Changes in TV DMAs and More Flexibility For LPFM

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

Tags: AM Radio, Cable Carriage, DMA, EAS, EDP, Emergency Communications, Equity Debt Plus, FM Translators and LPFM, FM translators, LPFM, Public Interest Obligations/Localism, in state TV, localism, main studio, mandatory PSA, manned studio, minot emergency, public interest obligation

Posted on October 14, 2007 by David Oxenford

Another Indication that LPFM Could Get More Protections

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

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

Tags: FM Radio, FM Translators and LPFM, FM upgrades, LPFM interference, low power FM, secondary service

Posted on September 30, 2007 by David Oxenford

FM Translators for AM Stations - Start Your Engines

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.

Tags: AM Radio, FM Translators and LPFM, FM translators for AM stations, special temporary authority

Posted on September 28, 2007 by David Oxenford

LPFM Slowing Processing of Full Power FM Stations

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

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

Tags: FCC rulemaking, FM Radio, FM Translators and LPFM, FM upgrade, LPFM, LPFM interference, city of license change, low power FM

Posted on September 17, 2007 by David Oxenford

LPFM Set to Move?

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

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

Tags: FM Translators and LPFM, Future of Music coalition, LPFM, low power FM, third adjacent interference

Posted on August 15, 2007 by David Oxenford

FCC Finally Releases Notice of Proposed Rulemaking to Allow FM Translators to Rebroadcast AM Stations

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

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

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

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

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

Tags: AM nighttime, FM Translators and LPFM, FM translators, LPFM, driectional AM stations, low power FM, translators for AM stations

Posted on August 8, 2007 by David Silverman

FCC Allows Assignment of LPFM Construction Permit

this article is no longer available. For more information on this topic, see Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine

Tags: FM Translators and LPFM, LPFM assignment, LPFM qualifications, LPFM sale, low power FM, low power FM sale

Posted on July 2, 2007 by David Oxenford

LPFM v. FM - More Stations Coming?

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

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

Tags: FM Translators and LPFM, FM city of license changes, FM upgrades, LPFM, secondary broadcast, third adjacent channel interference

Posted on May 15, 2007 by David Oxenford

Radio Items Missing In Action at the FCC

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

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

Tags: AM digital radio, Digital Radio, FM Translators and LPFM, FM translators, HD radio rules, broadcast public interest obligations, digital radio rules, public interest obligations, translators for AM radio

Posted on March 3, 2007 by David Oxenford

More on the Copyright Royalty Board Decision on Internet Radio Music Royalties

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

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

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

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

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

Tags: FM Translators and LPFM, Intellectual Property, Internet Radio, Multiple Ownership Rules, On Line Media

Posted on March 2, 2007 by David Oxenford

McDowell: Broadcasters Will Likely Be Pleased by FCC Action on FM Translators for AM Stations - But One AM Doesn't Wait

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

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

Tags: FM Translators and LPFM

Posted on February 11, 2007 by David Oxenford

Fun With Low Power FM

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

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

Tags: FM Translators and LPFM, General FCC

Posted on November 3, 2006 by Brendan Holland

Order Adopted Streamlining Changes to the FM Table of Allotments

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.

Tags: AM Radio, FM Radio, FM Translators and LPFM, General FCC

Posted on August 21, 2006 by David Oxenford

FM Translators for AM Stations?

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

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

Tags: FM Translators and LPFM