Noncommercial Broadcasting : Broadcast Law Blog

Posted on May 15, 2013 by David Oxenford

FCC Adopts More Lenient Standards on Certain Fines to Student Run Noncommercial Broadcast Stations

Fines against noncommercial stations may that are primarily student run may not be as harsh as they have been in the past under a ruling issued by the FCC’s Media Bureau earlier this week. The new policy came about as part of a consent decree entered into by an Iowa college-owned broadcaster whose student-run station had failed in its obligation to keep quarterly issues programs lists during most of the prior license renewal term, and also was late in meeting its obligations to file biennial ownership reports with the Commission. Instead of imposing what could have been as much as a $25,000 fine on the broadcaster, the FCC instead agreed to a consent decree by which the broadcaster contributed only $2500 to the government and agreed to certain ongoing obligations to insure its compliance with FCC rules going forward. The FCC also announced, as part of its decision in the case, that it would apply this policy of more leniency in other cases involving student-run stations in the future. See, for instance, this decision from last year for evidence of how this policy marks a change in the FCC's policy.

However, this new policy will apply in only very limited circumstances – only to noncommercial stations that are primarily student run. In the decision, the FCC recognized that these stations often had very limited budgets and also a high staff turnover as students graduated and new students took their place. As such, the potential for these kinds of errors increased, and yet the ability to pay for fines was small. In this case, the station involved had an annual budget of less than $7000. Were the Commission to impose big fines, these stations might be forced off the air, as the Commission noted a trend where many noncommercial student-run stations had been sold recently by colleges and universities – often leading to protests about the sales and inevitable format changes (see, for instance the decision we wrote about here).

Tags: FCC Fines, Noncommercial Broadcasting, noncommercial radio fines, public inspection file, student run radio station

Posted on April 23, 2013 by David Oxenford

$3000 Fine Against Noncommercial Station for Underwriting Violations - With Discussion of PSAs as Public Interest Programming and Cigarette Ads in Classic Radio Program

In a decision granting the license renewal of a noncommercial radio station, the FCC’s Media Bureau addressed a number of interesting issues – including the requirements for noncommercial underwriting announcements, whether PSAs meet a station’s public service obligations, and the ability of stations to run cigarette ads in historical radio programs from early radio days. These issues all came up in a decision to renew the station’s license despite a petition from a former manager alleging that the station had violated a number of Commission rules or policies – a petition raising all of these issues.

The $3000 fine that the FCC proposes to levy on the station was for what the FCC found to be improper underwriting announcements. Two different issues were found to violate FCC standards – one fairly straightforward, one less so. The relatively easy issue was whether the underwriting announcement by a musical group stating that it was voted “Canada’s #1 bluegrass band” made a qualitative claim. The station argued that the #1 claim was simply a statement of fact based on the vote in Canada. The FCC, not surprisingly, found that the “#1” label, no matter how it was derived, was a qualitative claim and thus prohibited as part of an underwriting acknowledgment on a noncommercial station. Such announcements cannot be commercial in nature - meaning that they cannot contain a call to action, price information or qualitative claims about the products or services offered by the sponsor. See articles that we have previously written on underwriting issues: here and here and here, as well as a presentation on that issue that is discussed here.

Tags: Noncommercial Broadcasting, Public Interest Obligations/Localism, cigarette advertising, public service announcements, public service obligations, underwriting announcement, underwriting spots on noncommercial stations

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 27, 2013 by David Oxenford

Noncommercial Radio Operator Fined $10,000 for Not Providing Immediate Access to Public File - FCC Provides A Good Primer on the Public File Rules for All Radio Broadcasters

The FCC proposed that a noncommercial broadcaster be fined $10,000 for its failure to allow a visitor unquestioned and immediate access to the public inspection files for 6 noncommercial radio stations operated from the same main studio. Though the delay in allowing access was only a few hours long, that delay, together with questions asked of the person who requested access as to his reasons for the inspections, led to the Notice of Apparent Liability issued by the FCC. In the decision, the Commission reminded all broadcasters that their obligation is to make the file available immediately upon a request made during normal business hours. The person inspecting the file cannot be asked why they want to see the file, or for their business or professional affiliation.

In this case, an individual apparently representing a competing broadcaster showed up at the station at about 10:30 in the morning. While it was disputed as to whether the individual immediately asked the receptionist to see the public file, or whether he simply asked to talk to the general manager of the station, the Commission found that both parties agreed that, when the general manager was reached by phone, the individual did ask to see the file. The general manager did not immediately tell his staff to allow inspection of the file, instead telling the visitor that the manager would return to the office at about noon, and the file could be seen then. It was that delay – putting the visitor off for a few hours- that the Commission found was sufficient to trigger the violation. In the decision, the FCC went further to make this case instructive for broadcasters by laying out some of the specifics of the obligations of a broadcaster to allow access to its public file.

Tags: FCC Fines, Noncommercial Broadcasting, access to public file, online public inspection file, public inspection file

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 3, 2013 by David Oxenford

More Patent Issues for Media Companies - Mission Abstract Data Patent Asserted in Law Suits Against 4 Radio Broadcasters, and a New Patent Claim Raised Against Podcasters, Including Public Broadcasters

In the digital world, it seems that everything is reinvented, and someone claims that they have a patent on that reinvention. In the last few weeks, we have seen news about patent claims asserted against radio broadcasters for their digital music storage systems, against public broadcasters for podcasts, and even against companies trying to comply with the FCC's new guidelines for E-911 (emergency communications over wireless and VoIP networks) providers. These claims highlight that media companies and others in the communications industry have to be prepared for patent litigation almost as a cost of doing business – and need to consult with patent lawyers about strategies if they are faced with such claims, and consider the potential of concerted defenses with others similarly situated if the defense does not violate other laws (such as the antitrust laws). What claims have been raised recently?

Over the last two years, thousands of radio stations across the country have received letters claiming that their digital music storage systems violated a patent from a company called Mission Abstract Data. While the patents in question have a checkered history at the Patent Office – after being issued, they were reexamined and their basis questioned, with the Patent Office ultimately agreeing that the patents, as limited through the reexamination, were in fact valid. But that decision was itself challenged by equipment manufacturers whose music systems could infringe on the patent. That further reexamination is still underway. Nevertheless, as that reexamination continues, the company that currently has rights to the patent, Digimedia, has sued four radio station owners in Texas claiming that they are violating these patents controlled by the company. These suits are in addition to a long-pending case against a number of large broadcasters, which has been stayed pending the outcome of the Patent Office reexamination (though the patent holder has asked that the stay be lifted – an argument to be considered later this month). Some observers have suggested that these new suits may be a precursor to other actions to try to convince reluctant broadcasters to take out a license rather than fight a lawsuit.

Tags: Intellectual Property, Noncommercial Broadcasting, On Line Media, Website Issues, mission abstract data, patent claim against radio music scheduling software, patent infringement

Posted on January 17, 2013 by David Oxenford

FCC Seeks Comments on Biennial Ownership Report - Seeking Social Security Numbers From All Attributable Owners - and Some Who Are Not

The FCC this week released a Public Notice announcing comment deadlines on rulemaking proposals relating to the FCC Biennial Ownership Reports. The first set of proposals deals with a Notice of Proposed Rulemaking issued earlier this month, proposing a series of changes to the process for filing these reports. The proposals include a requirement that the all persons with attributable interests in broadcast stations get a unique FCC Registration Number (an "FRN"), which will require filing their Social Security numbers with the FCC. The second proceeding is one released in 2009, but is only now being published in the Federal Register triggering the comment deadline. This proposal suggests that certain nonattributable owners be identified and reported on these Biennial Ownership Reports despite their nonattributable status. Comments on these proposals will be due on February 14, 2013, with reply comments due on March 1, 2013.

The Biennial Ownership report, in its current form, was initially adopted in 2009. The new reports were to gather information not just about the ownership of broadcasters, but also about their race, ethnicity and gender, so that the FCC could get a better handle on the presence of minority owners in broadcasting. The first report on the new form was to be filed in November 2009, but that deadline was pushed back to July 2010 when issues with the new form developed. The second Biennial Ownership report was to have been filed by commercial stations in late 2011 (two years after the original date), and the next is due later this year. The information in the first two reports was compiled into the information that formed the basis of the FCC's December request for comments on the impact of proposed changes in the multiple ownership rules on minority ownership.

Tags: EEO Compliance/Diversity, FCC registration number, General FCC, Multiple Ownership Rules, Noncommercial Broadcasting, attributable interest, biennial ownership report, social security numbers for FCC ownership reports

Posted on December 2, 2012 by David Oxenford

Will the 9th Circuit Overrule Holding That Noncommercial Broadcasters Can Run Political Ads?

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act's prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing the decision of the initial three judge panel, has indicated that the case should not be relied on as precedent in any other court decision until the full Court can complete its review. While one must be careful in pre-judging any court decision, especially when all we have to divine the intent of the Court is a two sentence order, this at least hints that the full Court may have misgivings about the initial decision in this case.

The initial decision by the three judge panel suggested that the limits on political speech placed unjustified burdens on the First Amendment, and that there was no overriding non-speech related objectives served by these restrictions. The panel suggested that political ads were different than other commercials trying to sell a service or product, as political speech did not sell a commercial product, but instead encouraged civic discourse not unrelated to the educational mission of noncommercial stations. Many noncommercial stations saw the potential that this decision could lead to a new source for revenue to support their operations, while others expressed fears that it could erode the noncommercial nature of educational stations. The FCC, while questioning the decision, had initially stated that it would allow stations in the Ninth Circuit to accept political ads as soon as the panel's decision became effective (in the FCC's notice of proposed rulemaking asking for comments on other noncommercial fundraising issues). Given the Court's order in this case, we will wait to see if the FCC revisits this finding as to stations in the Ninth Circuit. Look for a final decision in this case in the coming year. In the meantime, stations outside the Ninth Circuit should not look for any immediate relief, and stations in the states in the circuit should proceed cautiously in considering any political advertising on their stations.

Tags: Noncommercial Broadcasting, Political Broadcasting, advertising on noncommercial stations, political ads on noncommercial stations

Posted on November 7, 2012 by David Oxenford

FCC Announces Simplified Waiver Process for Noncommercial Station Fundraising Appeals for Hurricane Sandy Relief

Hurricane Sandy (or "Superstorm Sandy as it now seems to be called) has resulted in an outpouring of support from broadcasters across the nation, looking for ways to raise funds for those that have been affected by the storm and its aftermath. Noncommercial broadcasters who are interested in joining in the fundraising efforts were aided by a Public Notice released by the FCC yesterday, adopting a form of a simplified waiver of its policies against noncommercial broadcasters engaging in on-air fundraising activities on behalf of any entity other than the station itself if that fundraising "substantially alters or suspends regular programming" of the station. As we have written before (see for example these articles about Tsunami relief, and aid to victims of the Haitian earthquake), the FCC has previously granted liberal waivers of its policies to allow noncommercial stations to engage in fundraising efforts where there is this type of mass disaster. The process for filing for one of these simplified waivers is set out in the Public Notice.

In our previous posts about these blanket waivers, we have commented how, in our opinion, this policy may well have outlived its usefulness as noncommercial broadcasters should be able to make these decisions about what programming best serves their listeners on their own, just as do commercial stations. The Commission has itself asked whether the policy should be changed, initiating a Notice of Proposed Rulemaking on the subject, with comments that were filed just a few months ago (see our summary of the proceeding here, including a description of the many limitations that the Commission suggested be retained even if the rules were somewhat relaxed). While some noncommercial broadcasters were supportive of a relaxation of the policy to allow them to make their own decisions, others were concerned. In particular, some stations were concerned that the relaxation of the rules would put too many demands on these stations from various charities looking to raise money on the stations – and it would be a difficult process for stations to pick and choose among these groups. Some of these broadcasters also felt that such efforts could overwhelm the audience, change the nature of the noncommercial service, and affect the station's own fundraising appeals. Supporters of the liberalization ask why the broadcasters can't avoid these problems by applying their own judgment, but having a government prohibition to rely on does simplify the choices that a broadcaster might otherwise have to make. We will watch with interest how this policy issue plays out as the Commission considers the comments filed in its rulemaking proceeding in the coming year.

Tags: Noncommercial Broadcasting, broadcasters and disaster relief, fundraising for noncommercial broadcasters, noncommercial educational station fund raising, third party fundraising by noncommercial stations

Posted on October 4, 2012 by David Oxenford

Early October Regulatory Requirements - Quarterly Issues Programs Lists, Children's TV Reports, Captioning of Internet Programs, Noncommercial Ownership Reports, EEO and Renewal Obligations

October is a very important month in the regulatory world, and broadcasters need to be aware of the regulatory deadlines that have already arisen this month, or which will come up in the next few days. This week, TV Newscheck published our latest summary of the state of many of the most significant legal issues facing TV broadcasters at the FCC and in Congress. In looking at the list, it is clear that this month is particularly important for broadcasters. For instance, this is the month that most TV stations outside of the Top 50 markets will first have to deal with the online public file – having to post their Quarterly Issues Programs Lists and Children’s Television reports on their sites. The FCC this week issued a Public Notice of increased functionality of the online public file, partially to handle these obligations. Of course, radio stations also need to have their Quarterly Issues Programs Lists in their paper public file this week – as the lack of these lists is source of many of the fines that are issued during the license renewal process.

Also this month is the start of the obligation for Internet captioning of any programming that had previously aired with captions on TV. The obligation applies to any full TV program that was captioned when broadcast over-the-air after September 30 and is then posted in full on the Internet. The FCC just issued a reminder about this obligation, emphasizing its importance.

Tags: Children's Programming and Advertising, EEO Compliance/Diversity, EEO public file report, General FCC, Internet Video, Noncommercial Broadcasting, internet video captioning, license renewal prefiling announcements, noncommercial broadcast station ownership information, quarterly issues programs lists

Posted on April 26, 2012 by David Oxenford

FCC Proposes to Liberalize Rules Against Noncommercial Stations Fundraising For Third-Party Non-Profit Groups

The FCC has adopted a Notice of Proposed Rulemaking suggesting, with significant limitations, a liberalization of its rules that prohibit noncommercial broadcasters from raising funds for an entity other than the station itself if the fundraising suspends or alters normal programming of the station. As we've written before, the FCC prohibits noncommercial broadcasters from raising funds for charities and other non-profit organizations through telethons or other special programming. The prohibition has been in place for some time, and was reaffirmed by the FCC's orders in the early 1980s which established the basic rules that still today govern most noncommercial fundraising and sales activities.

The prohibition on third-party fundraising reflected the Commission's concern that educational stations are "licensed to provide a noncommercial broadcast service, not to serve as a fund-raising operation for other entities by broadcasting material that is akin to regular advertising." Doing too much fundraising for these third parties, in the Commission's view when the rule was adopted, would distract stations from their principal mission of service to the public. While the Communications Act was changed in the early 1980s to allow noncommercial broadcasters to accept paid promotional spots for nonprofit groups, the FCC did not change the rule on third-party fundraising that disrupts normal programming. In the NPRM just adopted, the Commission recites that they still believe the justification for the rule to be true, even though noncommercial stations can now run what is essentially paid advertising for nonprofit organizations, as long as those spots are incorporated into the normal programming of the stations. What the Commission now proposes is a limited degree of liberalization of the third-party fundraising prohibition, subject to many conditions set forth below.

Tags: Noncommercial Broadcasting, advertising on noncommercial stations, third party fundraising by noncommercial stations, underwriting spots on noncommercial stations

Posted on April 13, 2012 by David Oxenford

Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations - Analyzing the Issues

The Communications Act's ban on noncommercial broadcast stations running political and issue advertising was struck down as unconstitutional by the US Court of Appeals for the Ninth Circuit. While the Court upheld the prohibition on commercial advertising for products and services, the majority of the Court felt that the ban on political advertising could not be justified. Bob Corn-Revere of Davis Wright Tremaine's DC office, who is quite experienced in First Amendment litigation and is a frequent speaker and author on these issues, offers this summary of the constitutional issues raised by this case:

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A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment. The court left intact another provision that prohibits commercial advertising on public stations. The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored. At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.

Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.” The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.” The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations. Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires. That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.

Tags: First amendment, Noncommercial Broadcasting, Political Broadcasting, advertising on noncommercial stations, political advertising on noncommercial stations

Posted on April 9, 2012 by David Oxenford

On the Schedule for the April 27 FCC Meeting: Television Public Interest Obligations, TV Channel Sharing and Third-Party Fundraising by Noncommercial Broadcasters

Three broadcast items are tentatively scheduled for the next FCC meeting, to be held on April 27, according to the tentative agenda released today. In one expected action, though perhaps moving more quickly than many thought possible, the FCC has indicated that it will adopt an Order in its proceeding requiring TV broadcasters to place and maintain their public files on the Internet. A second broadcast item will adopt rules for channel sharing by TV broadcasters as part of the plan for incentive auctions to entice TV broadcasters to give up some of their spectrum for wireless broadband use. Finally, the FCC proposes to adopt a NPRM on whether to amend current policies so as to permit noncommercial broadcasters from interrupting their regular programming to raise funds for organizations other than the station itself.

The first item is to determine whether to require that the broadcasters maintain an Online Public Inspection File, is a controversial issue about which we wrote last week. The proposal for the online file grew out of the FCC's Future of Media Report (renamed the Report on the Information Needs of Communities when it was released last year, see our summary here). In that same report, it was suggested that the FCC relax rules applicable to noncommercial broadcasters that limit their on-air fundraising for third-parties, if that fundraising interrupts the normal course of programming. The Future of Media Report suggests that this restriction be relaxed so that noncommercial broadcasters be able to do block programming from time to time to raise funds for other noncommercial entities

Tags: Broadband Report, Digital Television, Form 355, Noncommercial Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television, online public file, public inspection file, public service programming, repurposing of TV spectrum for broadband, spectrum reallocation, third party fundraising by noncommercial stations

Posted on November 30, 2011 by David Oxenford

December 1 Deadline for Biennial Ownership Reports Begins A Busy Regulatory Month for Broadcasters

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

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

Tags: Broadcast Auctions, Digital Radio, FCC Fees, General FCC, License Renewal, Noncommercial Broadcasting

Posted on October 31, 2011 by David Oxenford

Financial Challenges to Noncommercial Broadcast Funding - What Is the FCC Doing?

As Federal funding to public broadcasters faces serious challenge in a Washington looking to cut the budget for all but the most essential government services, and where voluntary contributions to all noncommercial broadcasters have been constrained by the economic issues faced by the entire nation, more and more noncommercial broadcasters are facing tough questions about the future. We've seen colleges and municipalities sell stations that have been community fixtures for decades, and noncommercial groups (including some religious broadcasters) deciding to call it a day and liquidate their holdings. At the same time, the ratings success of many noncommercial broadcasters (both public broadcasters and those owned by religious or other community organizations), especially in the radio world, are showing much success in developing a large listening audience. With noncommercial stations, by law restricted to raising funds without commercial advertising, many are looking for new ways of operating. How are FCC regulations and interpretations reacting to these new realities?

The FCC's Future of Media Study (and the resulting Report on the Information Needs of Communities that we summarized here) recognized the importance of the diversity provided to communities by noncommercial broadcasters and, without detailing any proposals, indicated support for the development of new funding sources for those stations. Similar general statements were echoed in the hearing on the report recently held by the FCC in Arizona. But the options of the FCC in pursuing solutions are limited. In a recent decision, a noncommercial entity that operated a number of stations in small rural markets asked for a waiver of the FCC's underwriting rules to allow it to air a limited amount of advertising for commercial entities, restricted to the top of the hour, and presented so as to not break up normal programming. The applicant justified the request on the current financial climate that made donations and grants hard to come by, especially in the rural areas where this group operates its stations. While the Commission's staff expressed sympathy for the applicant's financial plight, it stated that it was powerless to waive the Communications Act, which prohibits noncommercial stations from broadcasting "any advertising." Faced with this prohibition, and a fear of opening the floodgates to similar requests, the FCC denied the waiver.

Tags: Noncommercial Broadcasting, fundraising for noncommercial broadcasters, noncommercial educational station fund raising, underwriting announcement, underwriting spots on noncommercial stations

Posted on August 5, 2011 by David Oxenford

FCC Makes Clear Noncommercial Broadcasters Get No Breaks on FCC Fines, Nor on Financial Hardship Showings

Noncommercial broadcasters get no breaks when dealing with proposed FCC fines, said the Commission's Media Bureau in two cases released this week. While many noncommercial broadcasters may yearn for a day when they were treated leniently if violations were discovered - getting off with perhaps an admonishment letter - those days are over, as they have been for some time. In one case released this week, the FCC specifically states that noncommercial broadcasters are no different than commercial ones when dealing with fines (or "forfeitures" as they are called by the FCC). If the noncommercial broadcaster violates a rule, they will be treated just like a commercial broadcaster, and have to pay the same fine as would the commercial broadcaster.

Noncommercial broadcasters have often argued that they cannot afford to pay big fines, as their budgets are limited. Even when noncommercial stations are owned by colleges or local governments, they have limited budgets, and fines don't figure into them. But, in two recent cases, the FCC has rejected arguments for the reduction of proposed fines based on financial hardship, in both cases finding that the budget of the station was not important - it is the total budget of the licensee that is important in assessing if a fine is too much (see our post about how the FCC determines if a fine should be reduced because its payment would create a financial hardship on a station). In the case cited above, the FCC said that it was the local government agency (a metropolitan school district) that was the licensee, and its financial resources should have been assessed in determining whether the proposed fine was too great. In a second case, it was a state university that owned the station, and the FCC said that it would look to the overall finances of the university in determining if the fine was too high - not the amount budgeted for the station. In neither case had the licensee put forward a financial showing for the full licensee organization, so the FCC rejected the requests for reductions of the fines based on financial hardship.

Tags: FCC Fines, FCC forfeitures, Noncommercial Broadcasting, financial hardship for FCC fine, noncommercial radio fines, reduction of FCC fine

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 June 9, 2011 by David Oxenford

When Can Underwriting Announcements Be Run on Noncommercial Radio and TV Stations?

The question has recently arisen as to when underwriting announcements can be aired on noncommercial radio and TV stations. The New York Times recently quoted me on the subject in an article discussing the plans of PBS to experiment with putting underwriting announcements in programming, rather than merely in the breaks between the end of one program and the beginning of the next. The FCC rules for both radio and TV state, in italics, that the scheduling of underwriting announcements "may not interrupt regular programming." What does that mean?

In 1982, in adopting the rules as to the timing of sponsorship announcements and the acknowledgment of donations, the FCC relied on what was then a recently-enacted statute addressing the sponsorship of public broadcasting programming. The House of Representatives report adopting that legislation contained language interpreting the meaning of the prohibition against these announcements interrupting regular programming. The FCC relied on that language in adopting the rules currently on the book. There, Congress said that announcements could be run "at the beginning and end of programs,...between identifiable segments of a longer program" or, in the absence of identifiable segments, during "station breaks" where the flow of programming was "not unduly disrupted." For radio, this seems like a much easier test to meet, as there are always breaks in programs, e.g. between stories on a news program like Morning Edition, between guests on a program like Fresh Air, or between music sets on a noncommercial music-oriented station. For TV, the issue is somewhat more complicated, thus the questions that the Times wrote about in connection with the PBS tests.

Tags: Noncommercial Broadcasting, PBS sponsorships, public broadcasting commercials, public broadcasting sponsorships, sponsorship acknowledgment, underwriting announcement, underwriting spots on noncommercial stations

Posted on April 27, 2011 by David Oxenford

Assessing Control of the Noncommercial Broadcaster - FCC Looks to Board of Directors

How do you determine who is control of a noncommercial broadcaster governed by a self-perpetuating Board of Directors? That question was addressed in a recent FCC decision, dismissing an application for a new noncommercial FM station that had not properly disclosed its owners on its FCC Form 340 application. In that case, the applicant had reported to the FCC that it was controlled by one individual, the head of a Monastery. No other officers or directors or members of the applicant nonprofit corporation were listed in the application. A competing applicant searched state records, and determined that its articles of incorporation reflected that the applicant was to be governed by a Board of Directors, and required at least three directors. Moreover, the state filings had listed 6 directors - including two individuals who were not US citizens. When challenged, the applicant admitted that the applicant corporation was set up in the manner set out in the state filings, but contended that the directors were all members of the same religious order, and could not challenge the decisions of their superior - arguing that this gave the superior effective control over the entity. The FCC rejected the argument - relying on state laws that said that a company is governed by its Board of Directors - and concluding that the individuals on that board therefore had control of the applicant. Any attempt to now list the 5 other members on the FCC application would be a major change in the control of the board (and would raise alien ownership issues because of the two directors who were not US citizens), so the application was dismissed.

This case illustrates the Commission's general rule that, when evaluating control of nonprofit entities that don't have shareholders or other owners, as do commercial enterprises, the FCC looks to the governing body of the entity that holds the FCC license to define where control lies. But the rules for noncommercial entities have never been completely clear - as the FCC has for over 20 years had a rulemaking to establish rules governing changes in control of noncommercial entities. While this proceeding has been pending, the FCC looks at these issues through an interim policy based on the rules proposed in that proceeding. Under that policy, the FCC assumes that nonprofit boards will have periodic changes in composition. It requires that, when a majority of the governing board changes due to these normal, gradual changes, a noncommercial broadcaster file a Form 316 short-form transfer of control - an application routinely processed by the FCC in a matter of days. But, if there is a sudden change in control of the Board where a controlling interest changes all at once (e.g. if members of a nonprofit entity vote out a majority of the Board, or if there is some sort of mass resignation), then the company should obtain FCC approval on an FCC Form 315 "long form" application, that is subject to petitions to deny. In the context of any application for a new station, a long-form transfer will result in a dismissal of an application for which the filing window has closed, while short-form changes will be permitted.

We wrote about these issues when the FCC commenced its still-pending proceeding to require noncommercial broadcasters to file their ownership reports on the same biennial schedule as commercial entities. With license renewal approaching, noncommercial licensees should review their ownership, and make sure that its ownership information is correct, and that any transfers that have occurred based on these policies have been properly reported and approved.

Tags: Noncommercial Broadcasting, long form application, noncommercial broadcast station ownership information, noncommercial station transfer of control, nonprofit nonstock corporation

Posted on April 19, 2011 by David Oxenford

FCC Makes Clear It Doesn't Regulate Formats - Rejects Petition Against Sale of Noncommercial Station

The sale of a noncommercial radio station is often controversial, especially when it's clear that the format of the station will change after the transfer. In a decision released last week denying a Petition to Deny challenging the application for the sale of KTRU, the noncommercial radio station owned by Rice University, the FCC again made clear that they are not in the business of regulating the formats of broadcast stations. For 30 years, the FCC has held firm to its position that the marketplace is best for deciding on what format a station should broadcast. Thus, when Rice University students argued that the sale of their station and the loss of the diverse format that the station had programmed would harm localism and diversity, the FCC rejected the argument. Seemingly, that decision makes sense, as we don't want a government agency becoming a czar of the programming offered by broadcast stations. When we see decisions from the regulatory bodies in the United Kingdom or Canada sanctioning stations that don't stick to their legally proscribed formats, we wonder how such a system could possibly function in the US. Can you imagine the FCC fining a station because it played too many hits on an alternative station? Of too much rock on an Adult Contemporary station? Once the FCC or any government agency gets into regulating formats, these sorts of decisions will follow. Luckily, based on this decision and the prior 30 years of precedent, we won't have to worry about such an eventuality.

The Commission also rejected other objections to the sale of KTRU. The Petitioners had challenged the noncommercial purpose and educational plan of the buyer - an argument summarily rejected as the buyer was already the licensee of another noncommercial station in the market. The ownership of that station led to another argument - that the sale would violate ownership limits by concentrating too many noncommercial stations in the hands of one operator. But the FCC made clear that there are no ownership limitations on how many noncommercial stations one company can own.

Tags: Noncommercial Broadcasting, Programming Regulations, Public Interest Obligations/Localism, format changes, petition to deny, sale of broadcast station, sale of noncommercial radio station

Posted on March 24, 2011 by Brendan Holland

FCC Radio License Renewals Close at Hand; Pre-Filing Announcements Start April 1st for Stations in DC, MD, VA, and WV

The start of the FCC's license renewal cycle for radio stations is close at hand, and we have issued an advisory to help radio stations prepare for the process. A copy of the advisory is available here, and contains information about the pre- and post-filing announcements that stations are required to air, as well as information about recent changes to the FCC Form 303-S License Renewal application, and guidance on what radio stations should be doing as they head toward the filing date.

Radio stations in Maryland, Virginia, Washington, DC, and West Virginia are the first batch to file on June 1st, just over two months away. Even more pressing for stations in these states, however, is the requirement that they begin broadcasting their pre-filing announcements on April 1st. The announcements continue on April 16, May 1, and May 16, for a total of four pre-filing announcements. These announcements give notice to the local community that the station will be filing a license renewal application with the Commission and invite participation in the renewal process. The precise language of the pre-filing announcements—which is dictated by the FCC’s Rules—can be found here.

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

Next up in the queue will be radio stations in North Carolina and South Carolina, who will start their pre-filing announcements on June 1st in advance of filing their renewal applications on August 1st.

Tags: FCC license renewal, FCC renewal process, FM Radio, General FCC, Noncommercial Broadcasting, Public Interest Obligations/Localism, pre-filing announcements, radio renewals, renewal

Posted on March 17, 2011 by David Oxenford

FCC Sets Out Procedures for Noncommercial Station Fundraising For Japan Relief

Under FCC policies, stations licensed as noncommercial educational (NCE) stations cannot conduct fundraising for parties other than the station licensee if such fundraising will disrupt the normal program schedule of the station. So the Jerry Lewis Telethon and similar charitable programming efforts cannot be conducted by noncommercial stations without a waiver from the FCC. In recent years, when there have been major disasters, like Hurricane Katrina and the Haitian earthquake, the FCC has adopted a liberal waiver policy to allow noncommercial stations to join the rest of the world in aiding the victims of such tragedies. This week, the FCC adopted a similar policy for noncommercial stations wanting to conduct fundraisers for Japanese relief efforts, issuing a Public Notice setting out that policy. Waiver requests can be filed by an email to the head of the Audio or Video Division of the FCC (depending on whether the request is coming from a radio or TV station), setting out the following information:

a. the nature of the fundraising effort;

b. the proposed duration of the fundraising effort;

c. the organization(s) to which funds will be donated; and

d. whether the fundraiser will be part of the licensee's regularly scheduled pledge drive or fundraising effort.

As we wrote when the Haitian Notice was issued, there does not seem to be a need, under FCC precedent, for stations to have to request permission from the FCC if these fundraising appeals will not interrupt regular station programming. Yet it might be safest to ask for that permission if the requests will be regularly run during the course of programming on the station - to avoid any question about such activities. Of course, the question could be raised as to whether the FCC really needs to have this rule any longer - or if it might not be more appropriate for noncommercial stations to use their own discretion to make programming decisions about the fundraising that they want to do in the public interest. But that is a question for another day - as stations have a good cause to which they can contribute now, and the FCC has given them the ability to do so on an expedited basis.

Tags: Japan relief fundraising, NCE third party fundraising, Noncommercial Broadcasting, fundraising for noncommercial broadcasters, noncommercial educational station fund raising, third party fundraising by noncommercial stations

Posted on February 11, 2011 by David Oxenford

FCC Underwriting Rules for Noncommercial Radio and TV - A Seminar on the Issues

Fines for noncommercial broadcasters who air acknowledgments of their donors and contributors that sound too much like commercials have been a problem area for many noncommercial educational radio and television stations, and have resulted in significant fines from the FCC. The FCC allows "enhanced underwriting announcements" that identify a sponsor, what their business is, and where they are located, but such information must be provided in an objective, non-promotional manner. Earlier this week, I conducted a seminar for noncommercial broadcast stations who are members of the Maine Association of Broadcasters and the Connecticut Broadcasters Association. During the seminar, we discussed the FCC rules that govern fundraising done on such stations. The PowerPoint slides from that presentation are available here, and provide an outline of the FCC rules on underwriting, promotions, fundraising and related issues, with samples of announcements that have led to FCC fines for noncommercial stations.

We have written many times about FCC issues related to fundraising and other matters relevant to noncommercial stations. We have written articles about cases where the FCC fined stations for enhanced underwriting announcements that were too enhanced, and violated FCC standards by containing prohibited calls to action, inducements to buy, price information or qualitative claims (see, for instance, articles here and here). Another article discussed fines issued by the FCC for improper underwriting announcements where the announcements were of excessive length, and where the announcement ran in programming that was not originated by the station and from which the station received no consideration. Another article discussed the FCC prohibition on noncommercial stations interrupting their regular programming to raise funds for charitable groups other than the licensee. You can scroll though other articles we have written on other legal issues for noncommercial broadcasters by clicking here. Watch our blog for other issues that relate to noncommercial broadcasters to stay up-to-date on the latest developments about which you should be aware.

Tags: Appearances, Connecticut Broadcasters Association, FCC Fines, Maine Association of Broadcasters, Noncommercial Broadcasting, call to action, enhanced underwriting, fundraising for noncommercial broadcasters, sponsorship acknowledgment, underwriting announcement, underwriting spots on noncommercial stations

Posted on February 10, 2011 by David Oxenford

Big FCC Fines for Public File Violations for Commercial and Noncommercial Stations

The FCC today issued fines of as much as $12,000 for public file violations. Together with the fine issued earlier this week for a station that did not allow unrestricted access to its public file, these actions make clear how seriously the FCC takes the obligations of broadcast stations to maintain and make available their public inspection files. The fines issued today went to both commercial and noncommercial stations, with two noncommercial stations each receiving fines of $8000 for not having complete public files. Violations are expensive - even if your station is owned by a noncommercial entity.

The largest fine, $12,000, went to a commercial station that, when inspected by FCC Field Inspectors in March 2010, could not produce anything in its public file more recent than 2006. While the licensee claimed that the documents were kept at the office of the station owner several hundred miles away, the FCC found that the violation of having nothing from more than 3 years of operation was so egregious that an upward adjustment from the standard $10,000 public file fine was warranted. The two fines issued to noncommercial stations were not as egregious, but still resulted in significant fines. A review of the details of those cases are instructive as to the excuses and mitigating circumstance that the FCC rejected when the licensees tried to argue for a significant reduction or elimination of the fine.

Tags: FCC Fines, Noncommercial Broadcasting, financial hardship for FCC fine, public inspection file, quarterly issues programs lists, when is an FCC fine too big

Posted on December 8, 2010 by David Oxenford

When Is An FCC Fine Too Big? - Analyze Licensee Gross Income to Determine Hardship (For Noncommercial Licensees Too)

In three cases released in the last week, the FCC grappled with the issue of when the amount of a fine (or a "forfeiture" as the FCC refers to it) imposed on a broadcaster for a violation of an FCC rule is too much to be sustained. Clearly, the FCC wants a fine for a violation of its rules to be meaningful, so as to discourage bad behavior. But in some cases, the fine could be so great as to impact the public service provided by a station - or to even put it out of business. Thus, the FCC has adopted a test where it will look at the gross revenues of the licensee of the station to see if the licensee can pay the fine. And these cases make clear that it is the entire gross revenue of the licensee - not just the revenue of radio operations that is considered in this analysis. And, even for noncommercial or nonprofit broadcasters, these same tests apply.

One case very clearly demonstrates that the FCC is looking at a licensee's full revenue - not just that revenue available to the broadcast station. This case involved a school district that submitted financial information about its noncommercial radio operations in an attempt to reduce a $7000 fine for a late-filed license renewal. The FCC rejected that ground for reduction (though it did reduce the fine to $5600 based on the applicant's prior history of compliance), saying that the entire funding of a licensee must be reviewed before a hardship reduction would be granted. As no information about the district's revenues was provided, no hardship reduction was in order. In another case, the FCC looked at the revenues of the licensee (a church). As these revenues were between $391,000 and $520,000 during a three year period, the FCC determined that a $7000 fine, approximately 1.5% of the licensee's gross revenues, was not too much. There, the Commission cited cases where fines of as much as 7.9% of a licensee's revenues were not deemed excessive. Only in a nonbroadcast case, involving an individual who was found to have been operating an unlicensed radio transmitter on a government frequency was the FCC moved to decrease a proposed fine, reducing it from $10,000 to only $750 upon a finding that the individual had no current source of income from which the fine could be paid. The moral is that, if you operate a broadcast station, violate the FCC rules and have money, the FCC is going to be looking for a piece of it. One more reason to assess your operations and make sure that you are operating on the right side of the rules.

Tags: FCC Fines, FCC forfeiture, Noncommercial Broadcasting, amount of FCC fines, financial showing for FCC hardship waiver, hardship waiver for FCC fees, reduction of FCC fine, violation of FCC rule

Posted on July 9, 2010 by David Oxenford

FCC Refines Rules As to When Two Applications Can Be Granted From Same Noncommercial FM MX Group

Three months ago, we wrote about a case where the FCC held that it would grant only one application from each MX Group in the recent NCE FM window for new noncommercial FM radio stations. MX Groups arise when multiple applicants file applications that cannot all be granted without prohibited interference. In some cases, an MX Group can span several states, where not all applications are mutually exclusive with each other, but all are tied together in a chain, with each link being mutually exclusive with the next link. The FCC has just released another decision, slightly refining the decision from March. In the new case, the FCC dismissed one applicant on essentially the same grounds as in the case from March - the only reason that the dismissed application could stand on its own was because other applications with which it was mutually exclusive were themselves dismissed because of the application that was to be granted as a result of the FCC decision selecting the preferred application in the MX Group. However, in the new case, the FCC did allow for the grant of a second application in the same MX Group, where that application was no longer mutually exclusive with the winner or with other dismissed applications because its mutually exclusivity with the chain of application was broken by the voluntary dismissal of another applicant and the settlement with yet a third. Because of these two actions, the FCC said that this application was not in the same circumstances as was the application whose dismissal was upheld.

What this case seems to say is that, even after a 307B) grant order is released by the FCC, another application in an MX Group can possibly be granted if it is made grantable before the official dismissal is released, not by the dismissal of applications that are only dismissed because they lost the FCC comparative analysis, but if the actions eliminating the mutual exclusivity were caused by other voluntary actions. A slim exception - but one that NCE applicants in MX Groups where they are not technically precluded by the grant of the winning application may want to explore if they do not prevail in an FCC 307(b) analysis.

Tags: MX groups, NCE MX Groups, NCE applications, Noncommercial Broadcasting, mutually exclusive applications, noncommercial FM applications

Posted on June 17, 2010 by David Oxenford

Noncommercial FM Station Fined $12,500 for Sponsorship Acknowledgments That Were Too Commercial

Stations that are licensed as "noncommercial educational" stations are prohibited by the FCC from running commercials - seemingly a pretty straightforward prohibition. Yet drawing the line between a prohibited commercial and a permissible sponsorship acknowledgment is sometimes difficult in these days of "enhanced underwriting." In a recent case, the FCC fined a noncommercial radio station $12,500 for repeatedly airing 4 announcements from sponsors that the Commission found to have crossed the line by being overly promotional. These announcements, which appear to have been recordings of unscripted sponsor acknowledgments, demonstrate how carefully noncommercial stations must police their sponsorship announcements to avoid risking an FCC sanction.

The announcements in these cases are worth reviewing. Some have subtle promotional messages, while the areas of concern are more clear in others. But in reaching its decision, the Commission goes through a close analysis of the wording of each announcement to see if the announcement contains "comparative or qualitative descriptions, price information, calls to action, or inducements to buy, sell, rent or lease", all prohibited language in a noncommercial sponsorship identification. So, when one of the announcement referred to "beautiful Harley Davidson light trucks" sold by a local auto dealer who sponsored the station, the FCC found that this was a qualitative claim that went over the line. Similarly, statements that "we have it here" or "where we are proud to be Mexicans" (these announcements having been run on a Spanish-language station in California) were found to be attempts to qualitatively distinguish this dealer from others, or to be inducements to buy - a prohibited call to action. And a specific statement that "no downpayment" would be required on a purchase constituted the kind of price information that should not be contained in a sponsorship acknowledgment. Another announcement for a local tire store had similar problems in the content of the ads, using phrases such as stating that the company "knows about tires" and that the company's product "reduces [the] loss [of tire] pressure" and "has less risk of suffering damages . . . last longer and [is] not too expensive cause you to save more . . . [and] save more in gas per mileage."

Tags: FCC Fines, Noncommercial Broadcasting, call to action, enhanced underwriting, noncommercial educational station fund raising, sponsorship acknowledgment, underwriting announcement

Posted on March 30, 2010 by David Oxenford

Thinking of Settlement in NCE Window? Do It Now as More FCC Point System Decisions are on Their Way

Last week, we wrote about a Commission decision that said that only one application in a noncommercial MX Group can be granted even if, when the first is granted, there are other applications in that group that would not be mutually exclusive with (i.e. would not create any prohibited interference to) the winning applicant. While multiple applicants can be granted out of an MX Group if there is a settlement, only one application will be granted when the point system analysis is performed. Well - if you have an application still pending in the 2007 NCE Window and were contemplating a settlement, now is the time to do it. In February, the Commission released an order deciding the winner in 59 different MX groups. A second such decision is now circulating among the Commissioners for approval, and we hear that a third will soon follow as the FCC accelerates its review of the remaining applications from the 2007 window. Once these orders are released by the Commission, there is no more chance to settle any case decided in such an order, and thus only one application from any group will be granted. So, if you are planning a settlement, do it now.

Tags: 2007 NCE window, NCE MX Groups, NCE point system, Noncommercial Broadcasting, noncommercial FM applications, noncommercial point system, noncommercial radio comparative consideration, settlement of NCE cases

Posted on March 24, 2010 by David Oxenford

Fines For Public Inspection File Issues - Noncommercial Broadcasters Enter into Consent Decrees to Resolve Rule Violations

In two consent decrees released last week, the FCC's Enforcement Bureau agreed to significant "voluntary contributions" to the US Treasury to settle noncompliance issues reported in license renewal applications filed by noncommercial radio stations. Both stations had voluntarily reported public inspection file issues in their license renewals. One admitted to having no issues programs lists in its public file and having filed no biennial ownership reports for the license renewal period. The other admitted that it was missing several years worth of quarterly issues programs lists. In the first case, the FCC agreed to a $10,000 contribution in lieu of a fine (see the agreement here), in the other case a $1700 contribution (which was less than might normally be the case, as it was reduced by a financial hardship showing - see the order here and the agreement with the FCC here). These cases demonstrate the significance that the FCC places on public file issues - the biggest source of fines in the last license renewal cycle. With a new license renewal cycle beginning in June 2011, now is the time for all broadcasters - commercial and noncommercial - to make sure that they are ready for the beginning of this cycle by clearing up any outstanding regulatory issues.

The fines also once again demonstrate that the Commission no longer treats noncommercial broadcasters differently than commercial broadcasters - fining noncommercial stations for violations just as it does their commercial brethren (see a previous post on this subject, here). In these cases, the use of Consent Decrees also demonstrate the problems that issues arising at renewal time can cause. If a station's license renewal reports a problem, such as an incomplete public file, the application is pulled out of the routine processing pile for further scrutiny. Such scrutiny can often take a year, and sometimes several years, to resolve. While the renewal application is in this state of limbo, a sale of the station will not be approved, and sometimes other regulatory actions can be held up (in fact, in one of these cases, a transfer of control of the licensee company was delayed while this issue was being resolved). Thus, to avoid these lengthy delays, stations often decide to pursue the consent decree route to try to resolve the issue more quickly than would be the case if the application were just left with the FCC to run its course.

Tags: FCC Fines, FCC consent decree, Noncommercial Broadcasting, biennial ownership report, fines for noncommercial radio, fines reduced for financial hardship, license renewal, public inspection file, quarterly issues programs lists

Posted on March 20, 2010 by David Oxenford

FCC Decides Only One Application Will Be Granted From NCE MX Group - Even Where Second Application Can Technically Co-Exist With Granted Construction Permit

In a recent decision, the FCC upheld the dismissal of a noncommercial FM application filed during the 2007 NCE FM window, despite the fact that the application was not mutually exclusive with any other pending application. This somewhat unusual result came about following the selection of a winner from among a group of mutually exclusive noncommercial applications. That group of mutually exclusive applicants (or, as the FCC calls it, an “MX Group”) contained a number of applications in a “daisy chain.” As an example, a daisy chain would be where Applicant A was mutually exclusive with Applicant B, and Applicant B was mutually exclusive with Applicant C, and Applicant C was mutually exclusive with Applicant D, but Applicants C and A were not themselves mutually exclusive. In the case decided last week, there were actually 13 applications in the chain. When the FCC used its point system for evaluating noncommercial applications, it selected a winner and dismissed all of the remaining applicants. One of those dismissed applicants, The Helpline, asked the FCC to reconsider the dismissal of its application, arguing that, when you dismissed all of the applications that were mutually exclusive with the winning applicant, the technical facilities proposed by the Helpline would no longer be mutually exclusive with any application and thus could be granted as well. The FCC denied that request.

Why was that request denied? In its order establishing the rules governing the processing of noncommercial FM applications in the 2007 NCE window, the FCC decided that it would grant only one application out of any MX Group, even where not all of the applications in that group were mutually exclusive with each other. According to last week's order, the Commission considered allowing the grant of more than one applicant in a group, but determined that doing so could lead to the grant of an application that is “inferior” to other applications, and which would not necessarily represent the best use of the spectrum, so they decided to grant only one applicant from each MX Group.

Tags: NCE MX Groups, NCE points system, Noncommercial Broadcasting, choosing between competing noncommercial applications, daisy chain, noncommercial radio comparative consideration

Posted on February 1, 2010 by David Oxenford

$8000 FCC Fine for Noncommercial Station Not Making Public Inspection File Available Upon Request

In a decision just released, the FCC fined a noncommercial FM station $8000 for failing to make its public inspection file available when it was requested. The FCC made clear that past cases where a noncommercial station was given only an admonition for similar violations were no longer good law, finding that the public file was an important part of the station's obligations to the public and the failure to make it available was a serious violation. This case should serve as a warning to all stations, commercial and noncommercial, that they need to have people at the station at all times who know where the public file is located, and that all visitors who request access to the file need to be given such access.

This case was perhaps a bit more egregious than most, as the visitor who requested access to the fine was known to the station, as the person was employed by a college that had tried unsuccessfully to buy the station. After its request to purchase the station was turned down, the prospective buyer had allegedly filed a number of pleadings at the FCC trying to force the licensee to sell the station. When the person appeared at the station to request access to the public file, the person was first told to return another day. After protesting that was illegal, an official of the College which is the station licensee, arrived at the scene and told the visitor that he had to leave, and could only view the public file after having made a prior appointment with the college's attorney. When reached by phone, the attorney allegedly told the visitor to leave the premises or he would be arrested. Only when he returned another day, after being initially turned down yet again, was the visitor eventually able to persuade the station employees that refusal to give him access to the file was illegal. When he was finally able to gain access to the file, he stated that he found it to be incomplete.

Tags: FCC Fines, FCC public inspection file, NCE station, Noncommercial Broadcasting, access to public file, public inspection file, public interest obligation, public service obligations

Posted on January 15, 2010 by Brendan Holland

Broadcast Station Reminder: FCC Ownership Reports due Feb. 1 for Noncommercial Stations in Select States

A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.

Please note, this filing date applies only to noncommercial radio and TV stations in the states listed above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, and has revised the commercial Ownership Report – Form 323. Although commercial broadcast stations will file on a unified reporting deadline, by Order released late December 2009, the FCC has suspended indefinitely the filing of biennial Ownership Reports for commercial broadcast stations as we've posted previously. The Commission is taking additional time to address certain issues raised by petitioners and to revise the new form further. Once the FCC re-releases the form, stations will have 90 days to file the report, so stations should watch this space or the FCC's releases for future news about the return of the Ownership Report for commercial stations.

Noncommercial stations, on the other hand, continue to follow the previous rules filing biennial Ownership Reports on FCC Form 323-E, which has not been revised. The FCC is conducting a rule making proceeding to change, potentially, some of the ownership reporting rules for noncommercial licensees, but meanwhile, noncommercial broadcast stations continue to follow the existing rules. Accordingly, as Feb. 1, 2010, marks the two-year anniversary of the filing of a biennial Ownership Report for noncommercial stations in the above-referenced services and states, those stations must now file a biennial Ownership Report to update their ownership information or affirm the information currently on file. More information about this filing deadline can be found in our recent client advisory, available here.

Tags: 323, FCC, Form, General FCC, Noncommercial Broadcasting, Television, noncommercial, ownership, radio, report, rules

Posted on January 13, 2010 by David Oxenford

FCC Permits Noncommercial Stations to Raise Funds For Haitian Relief - The Limits of Third Party Fundraising By NCE Stations

The earthquake in Haiti has caused many to look for ways to help - including broadcasters. While many broadcasters are already pitching in to do their part to aide relief efforts, noncommercial broadcasters are, in some cases, limited in what they can do. Noncommercial stations cannot raise funds, even for other noncommercial groups, if that fundraising "substantially alters or suspends regular programming" of the station. Under these rules, NCE ("Noncommercial educational) stations are thus forbidden to hold a telethon or other pledge drive that suspends normal programming where the proceeds would go to a third party - even a nonprofit third party group. Thus, recognizing the magnitude of the tragedy in Haiti, the FCC has agreed to grant liberal waivers of these policies, issuing a public notice announcing that NCE stations wishing to conduct such efforts can simply file an electronic request, by email, with certain supervisors in the Media Bureau's Audio and Video divisions, setting out the nature of the programming, its length, and the beneficiary.

We obviously applaud the FCC's rapid response on this issue. But we note that it is interesting that the Public Notice states that applicants for one of these waivers also must state whether the special fund-raising effort is part of the station's normal fundraising, or if it is a separate program. The public notice does not mention that noncommercial stations can make fundraising appeals for third parties under the current FCC policies, as long as those appeals do not suspend or interfere with normal station programming. It would seem to me that such appeals would permit a DJ on an NCE station, in a normal programming break, to urge listeners to contribute to the Red Cross or some other charity, or for a regularly scheduled talk show on a station to feature a discussion of the situation in Haiti and of how people can assist with disaster relief, without needing any specific approval of the FCC. The key to whether a waiver of the FCC policies is necessary is whether there is a substantial alteration or suspension of the normal programming of the station.

Tags: NCE, NCE third party fundraising, Noncommercial Broadcasting, broadcasters and disaster relief, noncommercial educational station fund raising, station"

Posted on December 5, 2009 by David Oxenford

New Form 323 Ownership Report Expected to be Ready This Week - And FCC Provides for Temporary FRN Without Social Security Number

The new FCC Form 323 Ownership Report is expected to be available in the FCC's CDBS electronic filing database by Wednesday, December 9, according to a Public Notice released by the FCC yesterday - so that commercial broadcasters should have a month to prepare the form in time for the January 11 filing deadline. As we've written before, the form and filing deadline have been much delayed as the Commission struggled to work out kinks in its electronic filing process. In the Public Notice issued yesterday, the Commission also announced that stations can file their ownership reports on the new form even if each attributable owner of the company has not yet received an FCC Registration Number (an "FRN"), which requires the provision of a Social Security Number (for individuals) or a Taxpayer ID Number (for business entities). Seemingly, the FCC has recognized that there has been much consternation among shareholders, officers and directors of broadcast companies about providing their Social Security Numbers to companies in which they have interests to in turn be provided to the FCC so that an FRN can be obtained. So that licensees can have more time to deal with these issues, the provision for a temporary FRN has been adopted. The FCC Public Notice also indicates that the FCC will host a workshop on December 9 at 2 PM Eastern time to help the public with issues as to the filing of this report.

The Social Security Number issue has perhaps created the most concern about this new form. While the allowance for the temporary FRN will take some immediate pressure off broadcasters, these temporary numbers should not be viewed as a permanent reprieve from obtaining FRNs from all attributable owners. The Commission in the revised Questions and Answers on the Form 323 makes clear, the temporary FRN for those holders of attributable interests in broadcast stations is a temporary measure. Licensees are cautioned that they should use their best efforts to obtain these numbers (or to have the attributable owners, on their own, register for the FRN). Even if that cannot be accomplished by the January 11 deadline, the licensee has an obligation to keep trying and to amend its filing when it finally obtains the required information as to the permanent FRN of each person or entity holding an attributable interest in the company . The FCC seems to leave the door open to enforcement actions if a licensee does not obtain that information in a reasonable (though not defined) period of time.

Tags: FCC Form 323 ownership report, FCC registration number, FCC requirement for social security numbers, FRN, General FCC, Noncommercial Broadcasting, attributable interest, social security numbers for FCC ownership reports

Posted on October 23, 2009 by Brendan Holland

FCC Postpones Window for New Noncomercial FM Radio Stations Until February 2010

Last Friday we posted about the FCC's announcement that it would open a filing window in December for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments. Today, the FCC revised the timing of that window and postponed the opening until February 2010. Accordingly, rather than accepting applications for these vacant noncommercial allocations in December, the window for filing will now be from February 19 through February 26, 2010. In addition, the accompanying freeze on the filing of commercial and noncommercial minor modifications will now go into effect on February 6th and last through the closing of the window on February 26, 2010. The FCC postponed the window in response to a request from a group of noncommercial entities and associations who said that two months would not be enough time for interested applicants to get approval from their boards and pull together an application. The FCC agreed and pushed the date back. So noncommercial entities interested in filing for these new stations have some additional time to prepare. Further information is available in our earlier blog and in the FCC's Public Notice released today.

Tags: FCC, FM, FM Radio, NCE, Noncommercial Broadcasting, filing, noncommercial, radio, window

Posted on October 16, 2009 by Brendan Holland

FCC Opens Filing Window for New Noncommercial Educational FM Stations, Imposes Freeze on Minor Changes

The FCC today announced the opening of a filing window for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments. Applications on FCC Form 340 will be accepted from December 11th through December 18th for these vacant FM allotments in the non-reserved band between Channels 221 and 300. A full listing of the allotments that are available can be found here. Although the vacant channels are in the non-reserved FM Band these particular allocations have been reserved exclusively for noncommercial use. Thus, the window is restricted to noncommercial educational applicants only.

In the event that multiple applications are filed seeking the same allotment, then the channel will be awarded by applying the Commission's comparative point system for noncommercial applicants. Further details on filing an application can be found in today's Public Notice, and complete step-by-step instructions are available on the Commission's website here.

In order to provide stability and predictability for applicants interested in filing for these vacant allotments, the FCC is imposing a freeze on the filing of minor change applications for both commercial and noncommercial FM radio stations. The freeze will go into effect after 11:59 PM on November 25, 2009 and remain in effect through the close of the filing window. Accordingly, any existing FM stations that intend to file a minor modification in November and December should plan ahead so they don't get delayed by the freeze. In addition, the FCC has also imposed a freeze, effective immediately, on any applications proposing to change the reference coordinates for these 67 allotments. Similarly, petitions or counterproposals proposing a change in the class, channel, or community of license of any of the allotments will not be accepted until December 19th, after the filing window has closed.

Tags: FCC, FM, FM Radio, NCE, Noncommercial Broadcasting, filing, noncommercial, radio, window

Posted on October 13, 2009 by David Oxenford

FCC Announces Date on Which Noncommercial FM Stations Can Ignore Analog Channel 6 TV Allotments

The FCC today announced that, effective October 27, noncommercial FM stations need no longer protect Channel 6 analog television channels. The lower end of the FM band, which is reserved for noncommercial educational FM broadcasting, is immediately adjacent to TV Channel 6. As most television stations abandoned Channel 6 in June when the digital television transition occurred, noncommercial stations had been protecting stations that were no longer there. However, as we wrote here, the FCC wanted to deal with noncommercial licensees that were trying to jump the gun by filing applications contingent on the disappearance of the Channel 6 station even before the analog television stations had stopped operating. To give all noncommercial FM stations an equal opportunity to take advantage of the clearing of Channel 6 in most television markets, the Commission set this uniform date for taking advantage of this change in television station operations. Of course, noncommercial FM stations need to protect the handful of television stations that continue to operate digitally on Channel 6. Today's public notice notes that noncommercial FM applications trying to take advantage of the fact that Channel 6 has been vacated in their market by filing an application before the October 27 date will be dismissed unless they had specific unconditional permission of the Channel 6 station.

Note that while the FCC has made the process equal for all noncommercial FM stations, there are questions about whether an unfair advantage may have been given to some LPTV stations in the recent LPTV filing window, where channel 6 applications were not prohibited (see our post here). Some noncommercial broadcasters were concerned that some of these LPTV applicants could take advantage of the vacating of Channel 6 in their market by filing an application for a new LPTV station that could preclude the filing of an FM application once the window announced in this public notice opened. To some extent, this may not be a major issue, as the LPTV window for applications for major markets does not open until January. But we will see if this concern actually resulted in any issues in more rural areas as the LPTV applications that have already been filed in these areas are processed in coming months. But for NCE FM stations that were precluded from filing for upgrades by a Channel 6 TV station that disappeared after the digital transition, the wait for filing opportunities will soon be over.

Tags: Digital Television, LPTV channel 6 operations, Low Power Television/Class A TV, NCE application, Noncommercial Broadcasting, channel 6 TV and FM, digital television conversion, digital television transition, freeze on NCE applications, freeze on channel 6 operations, noncommercial FM applications

Posted on August 9, 2009 by David Oxenford

SoundExchange and Corporation for Public Broadcasting Settlement on Internet Radio Royalties for 2011-2015

The Corporation for Public Broadcasting has entered into a settlement with SoundExchange extending their current agreement on Internet Radio royalties for "Public" radio stations through 2015. The previous deal, about which we wrote here, covered the period from 2006 to 2010. This new agreement picks up in 2011 and covers included stations through 2015. As in the previous deal, the new agreement has a payment by CPB to SoundExchange satisfying all royalties for all of the covered stations. This was the fourth agreement that was announced last week, about which we wrote here, although details of this deal had not previously been released. We have written about the other deals entered into under the Webcaster Settlement Act of 2009 ("WSA"), including the deals with Sirius XM (here) and with other noncommercial webcasters (here).

This agreement covers stations affiliated with NPR, American Public Media, Public Radio International, and the Public Radio Exchange. CPB will pay to SoundExchange $2,400,000 in five yearly installments, covering up to 490 public radio stations in the first year, and up to 10 additional stations per year thereafter (up to 530 in 2015). The fee is also subject to adjustment if all of the covered stations exceed certain listening levels. Those levels, and the required true-up for performances in excess of the caps, are set out below. However, the CPB payments for excess performances are limited to a total of $480,000 over the 5 year period of the Agreement:

Year Music ATH Cap Per Performance Rate

2011 279,500,000 $0.00057

2012 280,897,500 $0.00067

2013 282,301,988 $0.00073

2014 283,713,497 $0.00077

2015 285,132,065 $0.00083

Tags: CPB SoundExchange royalty settlement, Internet Radio, Internet radio royalties, Noncommercial Broadcasting, internet music fees, internet music royalties, noncommercial internet radio, noncommercial webcaster settlement, public radio webcasters settlement, webcasting royalties

Posted on August 9, 2009 by David Oxenford

Details of Webcasting Royalty Settlements for Noncommercial Webcasters Including Educational and Religious Internet Radio Operators

Noncommercial webcasters were provided with two royalty options under settlements reached with SoundExchange pursuant to the Webcaster Settlement Act of 2009 ("WSA"). One settlement was with Noncommercial Educational Webcasters. The other, when announced, was characterized by SoundExchange as being a settlement with noncommercial religious broadcasters, though it applies to any noncommercial webcaster who elects to be subject to its terms. As set forth below, except for certain mid-sized noncommercial webcasters who have more forgiving recordkeeping options under the Educational deal, it would seem that the settlement with the religious broadcasters provides far more advantageous terms, and it also reaches back to cover the period from 2006 through 2010. The Educational webcasters agreement covers only the rates for the periods from 2011-2015. These settlements provide another example of the issue raised before the Senate Judiciary Committee of the arbitrary nature of the precedential nature that will be accorded to WSA settlements in future webcasting proceedings. The noncommercial agreement with significantly higer prices has been accorded precedential weight in future CRB proceedings, while the one with lower rates is, by its terms, not precedential in future proceedings.

It is easiest to start with a review of the 'Religious" broadcaters settlement (which, as we said above, is open to any noncommecial webcaster). The agreement provides for a $500 per channel fee for each channel or stream offered by the noncommercial webcaster. For that flat fee of $500 per channel, the webcaster can stream up to 159,140 monthly aggregate tuning hours of programming on each stream. An Aggregate Tuning Hour ("ATH") is one hour of programming streamed to one person. Thus, if you have 2 people who each listen for an hour, you would have two aggegate tuning hours. A station with 2 listeners who each listen for half an hour would have one ATH of listening. 4 listeners for 15 minutes each would also add up to one ATH. The 159,140 monthly ATH number represents listening of approximately 221 average simultaneous listeners 24 hours a day, 7 days a week. If a webcaster exceeds this listening level, it must pay for excess listening on a per performance (per song per listener) basis, at the rates set out below.

Tags: Internet Radio, Internet radio royalties, Noncommercial Broadcasting, SoundExchange, SoundExchange reports of use, copyright royalties, copyright royalty board, internet music royalties, noncommercial internet radio, noncommercial webcaster settlement, nonprofit internet radio royalties, nonprofit webcasting settlement, sound recording performance royalty, sound recording royalty, webcasting recordkeeping, webcasting royalties for noncommercial broadcasters

Posted on June 2, 2009 by Brendan Holland

Deadline for Comments on Noncommercial Filing Obligations Revised to June 26

This afternoon, the FCC issued an erratum revising the deadline for submitting Comments in the rule making proceeding regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters. Comments in this proceeding are now due by June 26th, not June 29th as previously indicated. Please see our earlier post, here, discussing the questions that the FCC has raised in this rule making. The deadline for Reply Comments is unchanged, and is still July 13th.

Tags: FCC Form 323, FCC Form 323E, FCC diversity, General FCC, Noncommercial Broadcasting, minority ownership, ownership report

Posted on May 29, 2009 by David Oxenford

FCC Sets Comment Date on Noncommercial Filing Obligations and Suspends Ownership Report Filings Until November

UPDATE: On June 2, the FCC issued an erratum revising the Comment date in this proceeding to June 26th. We've updated our earlier post to reflect the change.

The FCC today issued a Public Notice announcing the filing deadline for comments regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters (see our post, here, on the questions that the FCC is asking). Comments are due on June 26, with replies on July 13. As mentioned in our earlier post, the FCC also issued today an Order suspending the requirement that commercial broadcasters who have upcoming ownership report filing deadlines (including the deadline on Monday for on June 1 for radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, and television stations in Michigan and Ohio). This is a new policy, and thus supersedes the information in our post two weeks ago. As all commercial broadcasters will now have to file reports on the same time - November 1 - the need for a second report was deemed unnecessary, especially given the upcoming revisions to the Form 323 to require more detailed information about some otherwise non-attributable owners, and for certain entities not now required to file.

As we have stated, the FCC is interested in obtaining more detailed ownership information in order to better assess whether additional steps to promote minority ownership are justified. Watch for details of the new November filing requirement in the near future.

Tags: EEO Compliance/Diversity, FCC Form 323, FCC Form 323E, FCC diversity, General FCC, Noncommercial Broadcasting, minority ownership, ownership report

Posted on May 22, 2009 by David Oxenford

FCC Says that Permittee of New Noncommercial FM Station Cannot Change Coverage Area if It Won the Permit Based on 307(b) Preference

A decision released by the FCC's Media Bureau staff this week makes clear that the permittee of a noncommercial station, who was awarded the permit based on a 307(b) preference, cannot change transmitter sites so as to abandon service to the area that it promised to cover in order to get the preference - even if it proposes to cover an equivalent amount of underserved area from its new transmitter site. In addition, the decision held that the change in transmitter site was not justified even though the underserved area that had existed at the time the construction permit was granted no longer existed. Other stations had changed their facilities since the date of the construction permit's grant, and now provided coverage to the area that had been underserved at the time of the grant. The Commission said that the coverage promises made by an applicant, and on which the permit was conditioned, were a snapshot in time that could not be changed even after the grant. The decision should serve as a reminder to all the noncommercial applicants with applications that are now pending or to be filed in the next noncommercial window (whenever that may be) that they should not propose a technical facility in order to win a construction permit on 307(b) grounds if they can't really construct the station at the site they propose, as they may well be stuck with it - and forfeit the permit if they can't build the station in the way that they promised.

One wonders if a decision like this one will be appealed. While there is no question that an applicant who makes promises that lead to the award of a permit should be held to those promises (to do otherwise would undermine the system), is it really in the public interest to hold the applicant to these promises in such a way so as to ignore reality? If the underserved area that the applicant had promised to serve is no longer underserved, and some new underserved area that would have resulted in the applicant receiving the same preference is to be served by the modified proposal, isn't the public better off getting service to these truly underserved areas? We will have to watch this case to see what develops.

Tags: 307(b), NCE point system, NCE preferences, NCE radio, Noncommercial Broadcasting, construction permit, construction permit condition, educational radio, noncommercial construction permit, noncommercial point system, noncommercial radio comparative consideration, promises made in FCC application

Posted on May 16, 2009 by David Oxenford

Rules On New Ownership Reports Released - Including Proposals for Information from Noncommercial Broadcasters

The full text of the FCC's revisions to its ownership report filing process was released last week. The new rules will require that all commercial stations (including LPTV stations) file an updated Form 323 on November 1 every other year - starting in 2009. The Order does not add much to the summary that we provided when the decision was first announced, though it does make clear that the electronic form will be revised to no longer allow for PDF attachments, instead requiring that all information be provided on the electronic form itself, so that it can be more easily searched. With complex ownership structures, which are sometimes not easily explained in the confines of an FCC form, this may create some difficulties. The Order did not seem to freeze the obligations for the filing of Form 323 Ownership Reports on the old version of the form on the current schedule while the new form is being created and approved by the Office of Management and Budget under the Paperwork Reduction Act, so stations in states with June 1 deadlines for their biennial reports should continue their preparation (see our Advisory on the the reports that are due on June 1 for radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, and television stations in Michigan and Ohio).

The Order also asked for further comment on the Ownership Report requirements for noncommercial licensees, including LPFM stations. The Commission asks not only for comments on whether noncommercial operators should be required to file their reports on the same two year cycle as commercial broadcasters, but also for comments on what information should be required from these operators. As noted by the FCC, the question of who controls a noncommercial station is often not an easy one - as there are varying degrees of control and oversight of station operations at many of the institutions that hold noncommercial licenses. As noted by the FCC, there has been a Notice of Inquiry into noncommercial broadcast station ownership pending since 1989, trying to set out when there is a transfer of control of such entities that needs prior FCC approval. Noncommercial stations have been operating under the interim policy set forth in that Notice for almost 20 years. While the Commission does not seemingly ask for any change in the interim policy at this point, by gathering information about what ownership information should be reported on the new ownership report for a noncommercial entity, a resolution of that long-pending proceeding could potentially be in the works.

Tags: FCC Form 323, FCC electronic filing, General FCC, Noncommercial Broadcasting, ownership filing for noncommercial broadcasters, ownership report, ownership transfer, transfer of control

Posted on April 30, 2009 by David Oxenford

FCC Gives No Special Consideration to Noncommercial Broadcasters Who Violate the Rules - Colleges Pay Attention to Your Radio Station!

In a decision fining a noncommercial radio station $7200 for failure to have several year's worth of quarterly issues programs lists in its public inspection file, the FCC specifically stated that it does not have a reduced scale for fines for noncommercial broadcasters. Instead, noncommercial station licensees, like the college that was involved in this case, have to justify a reduction in the amount of a fine based on financial hardship by providing a financial statement for the licensee itself - not just a showing of the budget for the radio station. Thus, a college or university station that is in violation of an FCC rule, and which is issued a Notice of Apparent Liability, cannot justify a reduction in the fine merely by saying that the station cannot afford the fine - they will have to show that the institution itself is unable to pay the fine that the FCC imposes.

This case is but one of a number of noncommercial stations that have received fines in recent days. Just yesterday, another noncommercial station owned by a college was fined $7000 for not having timely filed its license renewal application. The college's explanation that the regulatory failure was due to "poor administration" of the station didn't fly - as the FCC is clearly not going to reduce a fine because the licensee was not paying attention to the actions of its agents. These cases and others like it demonstrate that the FCC is going to hold noncommercial stations to the same level of scrutiny as commercial operators. The days when noncommercial broadcasters could count on being treated by the FCC with a lighter regulatory touch are over. And many college, universities and other nonprofits that had not paid attention to the actions of their broadcast stations need to pay attention now, as in these days of tightened budgets, nonprofit groups can hardly afford the costs of paying an unexpected FCC fine.

Tags: FCC Fines, FCC licensee responsibility, Noncommercial Broadcasting, college radio, college radio fines, educational radio, license renewal, noncommercial radio fines, nonprofit radio, nonprofit radio fines, public inspection file

Posted on April 1, 2009 by David Oxenford

Noncommercial FM and the Disappearing Channel 6 TV Station - the FCC Clarifies the Relationship

The FCC today issued a long-awaited public notice, clarifying the relationship between FM educational stations and the analog Channel 6 TV stations that have or will be disappearing after the digital transition. As we've written before, the question of whether noncommercial FM stations could seek improvements in their facilities based on the imminent disappearance of the Channel 6 stations has been pending for quite some time. In the Public Notice issued today, the FCC made clear that no application for an improvement in a noncommercial FM station will be accepted before the DTV deadline unless it provides full protection to analog Channel 6 stations. Even after the transition, applications will only be accepted after procedures are established in another public notice to be issued by the FCC at some later date. Applications that are currently pending which don't comply with the current rules that require educational stations to protect Channel 6 TV operations (either protecting them from interference or having unequivocal consent from the TV station to the construction at any time of the FM station not conditioned on the digital transition) will be dismissed.

The dismissal will be particularly crucial in deciding between competing applications still being processed as past of the 2007 window for filing for new noncommercial FM stations. In that window, many applicants submitted applications ignoring the existence of Channel 6 TV stations, while others protected those stations. Those who ignored the Channel 6 operations would have received significant comparative coverage advantages had the FCC not taken the action announced today - dismissing those applications who ignored the Channel 6 operations. While this notice seems to be definitive - given the processing issues on these applications so far - we probably have not heard the last of this issue.

Tags: Channel 6 interference to FM radio, FM educational stations, FM noncommercial stations, NCE interference, Noncommercial Broadcasting, improvements to FM educational stations, processing applications from NCE window

Posted on January 25, 2009 by David Oxenford

FCC Fines for Noncommercial Stations Having Underwriting Announcements That Were Too Commercial - Even Where the Station Received No Money

Last week, the FCC issued several fines to noncommercial broadcasters who had underwriting announcements that sounded too commercial. In these decisions, the Commission found that the stations had broadcast promotional announcements for commercial businesses - and those announcements did not conform to the FCC's rules requiring that announcements acknowledging contributions to noncommercial stations cannot contain qualitative claims about the sponsor, nor can they contain "calls to action" suggesting that listeners patronize the sponsor. These cases also raised an interesting issue in that the promotional announcements that exceeded FCC limits were not in programming produced by the station, but instead in programs produced by outside parties who received the compensation that led to the announcement. The FCC found that there was liability for the spots that were too promotional even though the station itself had received no compensation for the airing of that spot.

The rules for underwriting announcements on noncommercial stations (including Low Power FM stations) limit these announcements to ones that identify sponsors, but do not overtly promote their businesses. Underwriting announcements can identify the sponsor, say what the business of the sponsor is, and give a location (seemingly including a website address). But the announcements cannot do anything that would specifically encourage patronage of the sponsor's business. They cannot contain a "call to action" (e.g. they cannot say "visit Joe's hardware on Main Street" or "Call Mary's Insurance Company today"). They cannot contain any qualitative statements about the sponsors products or services (e.g. they cannot say "delicious food", "the best service", or "a friendly and knowledgeable staff" ). The underwriting announcements cannot contain price information about products sold by a sponsor. In one of the cases decided this week, the Commission also stated that the announcements cannot be too long, as that in and of itself makes the spot seem overly promotional and was more than was necessary to identify the sponsor and the business that the sponsor was in. The spot that was criticized was approximately 60 seconds in length.

Tags: 47 usc 399b, FCC sponsorship fines, FCC underwriting fines, Noncommercial Broadcasting, ads on LPFM, ads on noncommercial radio, ads on public radio, call to action, communications act section 399b, consideration for noncommercial underwriting, payment for noncommercial sponsorship, price information on noncommercial radio, public broadcasting advertising, public broadcasting sponsorships, public radio underwriting, qualitative claims in sponsorship ads, underwriting spots on noncommercial stations, what can sponsor identification on educational radio say

Posted on December 17, 2008 by David Oxenford

Processing of New NCE Applications Proceeds - FCC Releases Fair Distribution Analysis for 26 Groups of Noncommercial FM Applicants

The FCC's staff today issued an Order resolving 26 Groups of mutually exclusive FM applications submitted last year in the filing window for new noncommercial FM stations. We wrote about a previous order in August, processing a smaller group of such applicants. In each of these groups, the Commission analyzed the coverage proposed by the applicants to determine if the technical service that they propose to provide was superior to that of other applicants - a "fair distribution analysis." In these cases, the Commission found that one applicant was preferred under an analysis that looks at the populations to be served by these applicants that do not already currently receive service from more than one noncommercial station. The "tentative selectees" of the Commission are now subject to the filing of petitions to deny and, if no petitions are filed in the 30 day filing window, these applications will be granted.

This Order did not deal with cases where there was no dispositive preference based on coverage - cases where the FCC will have to conduct a "points system" analysis (see our summary of those factors here). Presumably, those will come later. For parties who had applications on the Order and who were not winners, a review of the decision is in order. The Commission has been known to make mistakes in this kind of analysis and, as much reliance is put on information supplied by applicants, some of the information may not be correct, or may not rely on consistent assumptions applied in the same way in counting the populations served by each applicant. We've heard that there may be some of these windows where the winning applicant ignored (or asked for a waiver of) the limitations on the power of noncommercial stations near Channel 6 TV stations, on the theory that most of these TV stations, operating adjacent to the FM band, will be going away in February after the digital television conversion. This is a controversial issue (see our post here on the Commission's action with respect to applications to improve existing stations that relied on the same assumptions), which may well be challenged in reconsideration filings if these rumors are true. So, as always, stay tuned to see how this process develops.

Tags: FCC petition to deny, NCE MX Groups, NCE points system, Noncommercial Broadcasting, channel 6 TV and FM, fair distribution, noncommercial FM, noncommercial radio, tentative selectees

Posted on November 21, 2008 by David Oxenford

Standards to Decide Noncommercial Cases May Have Unintended Results, Says Commissioner Copps

An FCC decision in a case involving two applicants for a construction permit to construct a new noncommercial television station in Tulsa illustrated an interesting dilemma that can arise from the application of the "point" system that is used to decide comparative cases for new noncommercial stations. We wrote about the point system, here. In this case, neither of the applicants enjoyed a Section 307(b) preference for superior technical coverage. And neither had any preferences for being part of a statewide network. Instead, the only differences between the applicants was that one was a local, established non-profit organization (Oral Roberts University), while the other was not a local group, thus giving ORU 3 points under the comparative system. The non-local applicant received 2 points as it had no other station in the market. Thus, Oral Roberts received the grant - despite the fact that it already had another television station in the same city.

Commissioner Copps, while not specifically dissenting from this decision, did point out that the decision might not really be one that served the public. Is it really better, he asked, that a second television station be awarded to a local group, or would the local community be better served by a new voice - even if that voice was not from a local community organization? While Commissioner Copps did not mention it, under the comparative hearing system used to evaluate commercial applicants before the adoption of the auction system now in use, favored diversity of ownership (not having other media interests) over local ownership. Seemingly, almost any system of selection will lead to some anomalous results that may demonstrate the need to reexamine the system from time to time to determine if it really does benefit the public, or if it is simply making arbitrary distinctions between applicants. This may be one of those cases showing that it is time for a reexamination.

Tags: FCC local applicant, FCC point system, Noncommercial Broadcasting, comparative hearing, mutually exclusive applicants, noncommercial point system, noncommercial television

Posted on August 21, 2008 by David Oxenford

FCC Begins to Resolve Mutually Exclusive Noncommercial FM Radio Applications

The FCC has begun the process of resolving the groups of mutually exclusive noncommercial FM radio applications. In an Order released today, the FCC decided 12 groups of mutually exclusive applications ("MX Groups") by analyzing only one decisional factor - the question of "fair distribution" of noncommercial service. As we wrote when we set out the criteria for FCC decision making , when the FCC chooses between mutually exclusive groups of applications for new Noncommercial Educational ("NCE") stations, the initial level of analysis is a consideration of whether the application serves extensive areas where there is little other noncommercial radio service. If a station covers any area that currently has fewer than 2 noncommercial radio services, and that area exceeds 10% of the proposed service area of the applicant covering more than 2000 people, a conclusive preference will be awarded over another applicant who does not meet that threshold. All of today's decisions were made based on this criteria.

One interesting aspect of the decisions was how many cases were essentially won by default - as a number of applicants did not bother to compute the areas and the populations that they served. Where that information was not provided in the initial application as submitted by the applicant, the Commission gave the applicant no credit for any service. So even if an applicant submitted an application that would in reality serve underserved areas, if they did not claim that service in their initial application, they got no credit for the service. The FCC did not fill in any blanks in the applications. So, if you are planning to claim credit for anything in an application - be sure to do it up front when the application is filed, or you'll get no credit.

Tags: Noncommercial Broadcasting

Posted on July 2, 2008 by David Oxenford

When is an FCC Fine Excessive? - The 2% Solution

In two recent FCC decisions, one dealing with a commercial operator and that other with a noncommercial licensee, the Commission's staff addressed the issue of how large an FCC fine could be imposed on a broadcaster without that fine being subject to reduction because of the licensee's inability to pay. In the first case, a commercial station was fined for violations of the EAS rules. As we've written before, EAS seems to be the most common violation found at broadcast stations by FCC inspectors. However, what is most notable about this decision is not the violation, but the Commission's discussion of the penalty for that violation. As in many cases, the licensee argued that, as it had experienced several years of financial losses, the amount of its fine should be reduced as the payment of that fine would impose a financial burden on it. The FCC rejected the argument, finding that as the fine was less than 2% of the licensee's gross revenues, it was not excessive. The Commission stated that, while profits and losses may be important in determining whether a licensee can pay a fine, in most cases, if the fine is less than 2% of gross revenues, it will not be considered excessive even if the licensee has not been making a profit as it it not a significant overall expense. Therefore, the Commission refused to reduce the fine because of financial hardship argument.

In the noncommercial case, the applicant claimed that a fine that it was issued for not having any quarterly programs issues lists in it public file should have been reduced because that fine would significantly deplete the station's budget that had been allocated to it by the School District with which it was associated. However, the licensee only provided the FCC with information concerning the budget allotted to the radio station, and it did not provide any financial information about finances of the licensee school district. Without that information, the Commission stated that it could not determine that the fine was excessive, so it did not reduce the fine on the basis of financial hardship. Clearly, the Commission is not anxious to reduce a fine based on the licensees financial inability to pay, so a licensee looking for such a reduction must carefully document its request showing that the fine would impose a financial hardship.

Tags: EAS rules, Emergency Communications, FCC Fines, Noncommercial Broadcasting, fcc rule violation, noncommercial broadcaster, public file

Posted on June 19, 2008 by David Oxenford

NCE Application Processing Marches On - FCC Identifies A Number of Groups of Mutually Exclusive Applications

The processing of the applications for new noncommercial FM stations marches on. This week, the FCC released a list of groups of Mutually Exclusive applications (commonly known by those who regularly deal with the FCC as "MX groups"), i.e. applications that are linked together in that, because of interference concerns, not all can be granted. In some cases, all of the applications in an MX group overlap with each other so that only one can be granted. In other cases, referred to as "daisy chains", you have a situation where Application A precludes Application B from being granted, and Application B prevents Application C from being granted. While A and C could be granted if not for B, all three end up in a single MX group. According to the Public Notice released with the list of MX groups, the applications on this list are all situations were there are 13 or fewer applicants in the MX group. MX groups with a greater number of applications will appear on a subsequent public notice. MX Groups with 4 or fewer applications were identified back in March.

The Commission has advised all applicants to review the lists to see if they were included in an MX group erroneously or omitted from an MX group in which they should have been included. If they discover a mistake, the applicant should file, within 30 days, notice with the FCC so that its application can be processed with the group to which it belongs. Applicants can also try to work out settlements during the 30 day comment period (or notify the FCC at the end of the period that they are still working on a settlement). Otherwise, at the end of the 30 day period the FCC promises to begin work to resolve the MX cases through the use of the point system (which we explained, here). So the process marches on, and we should start to see more applications from the noncommercial filing window acted on in the coming months.

Tags: FM Radio, MX groups, NCE applications, Noncommercial Broadcasting, daisy chain, mutually exclusive application, noncommercial radio, settlements

Posted on May 11, 2008 by David Oxenford

FCC Fines Noncommercial Station for Enhanced Underwriting Announcments that Were too Commercial

In a decision released late on Friday, the FCC upheld a $9,000 fine on a noncommercial television operator who broadcast underwriting announcements which, in the opinion of the Commission, were too much like commercials and thus were impermissible on a noncommercial station. Under the Commission's policies governing the noncommercial nature of noncommercial stations, it is permissible to air an underwriting announcement acknowledging a commercial entity that makes a financial contribution to the station. And it is permissible to state the nature of the business, where it is located, and to air the slogan of the company. What is not permissible is when the underwriting announcement contains "calls to action," qualitative or comparative claims, price information, or other inducements to do business with this particular company. In this case, the Commission felt that the announcements crossed some or all of these lines.

In the initial Notice of Apparent Liability in this case, released in late 2004, the text of the announcements at issue are set out. In last week's order, phrases such as "planning a special occasion?" as the intro line to an announcement about an Ice cream store were deemed to be calls to action, and the description of the ice cream cakes that the store made as "tastefully decorated" were deemed to be qualitative. Similarly, statements about a real estate company that "we're all about family" and "we love selling real estate" were deemed to be comparative in nature, trying to distinguish this particular agent from other competitors. In only one of ten ads, one for a school supply store, did the Commission overturn its previous determination, finding that an announcement for "creative learning materials" was arguably descriptive and not qualitative.

Tags: Noncommercial Broadcasting, call to action, educational broadcaster, noncommercial broadcaster, noncommercial station, qualitative claim, underwriting announcement

Posted on March 24, 2008 by David Oxenford

NCE Applications Must Protect Channel 6 TV Stations Until the End of the Digital Television Transition

Channel 6 of the television band is immediately adjacent to the lower end of the FM band. Noncommercial FM radio stations, located at the lower end of the FM band (88.1 FM to 91.9), have the potential to interfere with television stations on that channel. Thus, FCC rules require that noncommercial FM stations protect Channel 6 stations that are in their area, often limiting their power unless they can work out interference agreements with the local TV station. As the FCC has tried to vacate Channel 6 as part of the digital transition, some noncommercial FM applicants, including some who filed during the recent filing window for new Noncommercial FM stations, have filed applications seeking construction permits at power levels that ignore the Channel 6 station, on the theory that, by the time the noncommercial station is on the air, the TV station will have vacated Channel 6. In a decision issued on Friday, the Commission rejected one such application, finding that the acceptance of the application premised on an event that has not yet occurred would be unfair to potential applicants who were waiting to file applications until the television stations actually changed channels.

The decision, in a footnote, noted another problematic issue raised by these applications. As only some applicants filed their applications in the recent NCE window premised on the disappearance of the Channel 6 TV stations, those that had not take that tact would be at a comparative disadvantage in assessing their applications under the NCE selection criteria. As the comparative position of NCE applicants was supposed to have been frozen at the time the window applications were filed, those relying on a future event would seem to get an unfair advantage. Thus, it appears that, in time, similar actions will be taken with respect to other similarly situated applicants, clearing up a source of concern or consternation for many who filed during that window.

Tags: FM filing window, FM interference, NCE application, NCE window, Noncommercial Broadcasting, Television, channel 6, digital transition, noncommercial FM

Posted on March 10, 2008 by David Oxenford

FCC Releases List of Groups of Mutually Exclusive Applications for New Noncommercial FM Stations

On Friday, the FCC released a Public Notice setting out several groups of applications for new noncommercial FM stations which are mutually exclusive with each other. These applications were filed in the October window for new noncommercial FM stations (information about which can be found here). According to the Public Notice, the identified groups are those where there are 4 or fewer applications which are mutually exclusive with each other. The list can be found here. The Commission is asking that applicants named on this list advise the Commission within 30 days whether the FCC's determination of mutual exclusivity is correct, and also whether the named applicants anticipate reaching a settlement or share time agreement. If nothing is filed within that 30 day period, the Commission's staff will start applying the point system to determine which of these applicants should be preferred and granted.

The Public Notice also makes clear that there are other applications which are part of larger mutually exclusive groups. These applications will be dealt with at a later date. The Commission has already processed over 800 other applications which were either granted as "singletons", not mutually-exclusive with other applications, or which were dismissed because the applicant exceeded the 5 station filing cap. Thus, the FCC is moving quickly to process these applications for new noncommercial stations. Applicants should carefully review their options in light of this new public notice.

Tags: NCE FM, NCE window, Noncommercial Broadcasting, mutually exclusive application, noncommercial FM, point system

Posted on November 8, 2007 by Brendan Holland

Next Step Announced for NCE FM Window Applications

This afternoon, FCC today released a Public Notice regarding the recent NCE FM filing window during which the FCC accepted applications for new noncommercial FM radio stations. By this Public Notice, the Commission has opened a 60-day settlement period for parties to resolve any technical conflicts between their applications, either by making technical amendments or by reaching a settlement with the other parties. Instead of providing lists indicating the applications filed in response to the window that are Singletons (i.e., don't have any conflicts and can go straight to processing), dismissed outright, or mutually exclusive with other applications as it has done in the past, the FCC instead leaves it to the applicants to figure out which category they are in and to identify any other mutually exclusive proposals that might be blocking their proposal.

This, of course, can only be accomplished if the FCC makes the applications available in their databases, which it started to do this afternoon. Thus, the next step is for applicants to check the FCC's CDBS database and see if their application is either: 1.) Dismissed, 2.) Accepted for Filing, or 3.) Tendered for Filing. Dismissed is self-explanatory. Accepted for Filing means that there were no initial conflicts and that the application will progress through the normal processing procedures, hopefully to be granted in due course. These applications will appear as accepted for filing in the FCC's daily public notices some time next week and move on from there.

In the event that the database reflects that an application is Tendered for Filing, this indicates that there is a conflict with at least one other application that was filed during the NCE FM window. The next step in that case is to have your consulting engineer study the situation and see what the conflict is. Once you have a sense of the conflicts you are facing, you can start to assess whether there is an engineering solution that might allow your application to be granted, whether you could settle with the other applicants, or if your application could win on the basis of preferential service or a comparative point analysis. The 60-day period for technical amendments and joint settlements starts today and will expire on January 7th.

Tags: FM Radio, Noncommercial Broadcasting

Posted on October 19, 2007 by David Oxenford

Window for Filing New NCE Applications Extended Until 2 PM on October 22

The FCC today issued a Public Notice extending the NCE filing window, which was to end today, until this coming Monday, October 22. All applications must be on file by 2 PM Eastern Time on Monday. This short extension was apparently due to downtime on the FCC's electronic filing system last night, which precluded the filing of some applications during that period. This is the window for filing applications seeking authority to construct new noncommercial educational FM stations, or for major changes in existing noncommercial FM stations. For more details on this window, see our post, here.

Tags: NCE application, NCE window, Noncommercial Broadcasting, educational FM, noncommercial FM, noncommercial window

Posted on October 10, 2007 by David Oxenford

FCC Affirms NCE Application Limit of 10 Stations

In an Order released today, the FCC affirmed its tentative decision limiting the number of noncommercial FM applications that can be filed by one party in the upcoming window for new reserved educational band stations. Applications for these stations can be submitted starting on Friday. See our post, here, for details on the filing requirements. The Commission upheld its tentative decision to retain a limit of 10 applications, despite requests by NPR, Minnesota Public Radio, and many religious broadcasters for higher limits. The Commission cited thousands of individual comments in support of the 10 station limit, as well as those of a number of "public interest" groups. Apparently, the flood of thousands of almost identical individual comments helped convince the Commission that the weight of the comments (perhaps literally) supported its decision.

The Commission did recognize some exceptions to the 10 station limit, exempting major change applications and applications that were originally filed under the old rules for FM educational processing (many of which have been languishing for almost 10 years) which must be refiled in the upcoming window. In response to concerns that there might be sham applications that are filed to evade the limits, the Commission warned applicants that it retained the ability to investigate any application to make sure that the representations are true. See our post on a recent case where the FCC rejected an applicant's claim to credit as a local applicant. We will see if these efforts by the FCC in fact reduce the number of applications to a manageable number that can be quickly processed by the Commission.

Tags: Noncommercial Broadcasting, educational FM, educational radio, nce application limit, noncommercial FM, noncommercial application, reserved band

Posted on October 6, 2007 by David Oxenford

Who is a Local Applicant for an NCE Station?

With the filing window for new noncommercial FM radio stations opening this coming week (see our summary of the process, here), some potential applicants may be wondering who qualifies as an established local organization entitled to points in the comparative analysis that takes place if applications that are mutually exclusive (both cannot be granted without creating prohibited interference) are filed during the window. In a decision released this past week, the FCC clarified the rules as to what constitutes a local applicant - holding that simply having a mailing address for a headquarters in the proposed station's service area is not sufficient.

In this case, an applicant claimed to have an established local presence necessary to qualify for points as a local applicant based on its "headquarters" which it said had been located within 25 miles of the proposed city of license for two years prior to the relevant date for evaluating the applicant's comparative attributes, as required by the FCC's rules. However, when a competing applicant visited the office building in which this supposed headquarters was located, there was no indication in the building directory or on any signs on any door in the building that the organization was located there, and no building personnel had any familiarity with the organization. The applicant justified its claimed local credit by claiming that the "headquarters" was an office at the specified location that housed a number of businesses and organizations with which one of its Board members was affiliated, and that all of those businesses could not be listed on signage or on the building directory. The Commission found that the mere presence of an office was insufficient to qualify for credit, citing the Order adopting the NCE point system which said that the headquarters must be the organization's principal place of business or the principal residence of one of its members, and not just a post office box, lawyer's office, branch office or vacation home. To qualify for points as an established local organization, the applicant must have activities and familiarity with the local service area that will permit it to "hit the ground running" in serving the public.

Tags: NCE comparative criteria, NCE filing window, Noncommercial Broadcasting, established local presence, mutually exclusive applications, noncommercial FM applications

Posted on August 22, 2007 by Brendan Holland

Comments on Proposed Limit on NCE FM Filing Window Applications Due Sept. 6th

This article is no longer available. For more information on this topic, see FCC Decides Only One Application Will Be Granted From NCE MX Group - Even Where Second Application Can Technically Co-Exist With Granted Construction Permit

Tags: Noncommercial Broadcasting

Posted on August 16, 2007 by David Oxenford

Details on the Noncommercial Filing Window

In its Public Notice setting out the rules governing the upcoming filing window for applicants seeking new noncommercial FM stations or major changes in existing stations, which we wrote about here, the FCC has put applicants on notice of the many requirements that must be met in order to have an application considered in the upcoming process. This is the first opportunity in this century for the filing of applications for new noncommercial FM stations. In order to participate, all applicants must make sure that they follow the rules set out by the Commission. Applications will be due in a filing window that will open on October 12 and close on October 19.

Fundamentally, the FCC's Public Notice reminds interested parties that, to be eligible, an applicant must be a noncommercial entity – a nonprofit corporation or a governmental organization. Individual applicants or profit-making entities cannot participate. As eligibility to participate and the comparative qualifications of all applicants are assessed at the time of filing, applicants need to assure their nonprofit status is in order before the upcoming filing window.

The Commission also sets out a number of other requirement for the applications that may be filed during the window. Applications submitted during the window will be filed electronically on FCC Form 340, and must contain very specific technical descriptions of the service they plan. The proposal must specify facilities that don’t interfere with other existing stations or pending “cut-off” noncommercial applications. The applicant must have received reasonable assurance of the availability of its proposed transmitter site (i.e. a legally binding contract is not necessary, but a commitment from the site owner that the site will be available and an idea of the terms on which that availability is premised must be obtained).

Tags: FCC Form 340, FCC diversity, FCC noncommercial radio, Noncommercial Broadcasting, mutually exclusive applicants, noncommercial FM, noncommercial point system, noncommercial radio, noncommercial window, public radio

Posted on August 10, 2007 by Brendan Holland

More Information on October Filing Window for New Noncommerical FM Radio Stations

This article is no longer available. For more information on this tpoic, see FCC Releases List of Groups of Mutually Exclusive Applications for New Noncommercial FM Stations

Tags: FM Radio, NCE, Noncommercial Broadcasting, filing freeze, filing window, noncommercial

Posted on June 4, 2007 by David Oxenford

NAB Joins the Fray on Internet Radio - Appeals and a Request for Stay are Filed, And a Settlement Offer is Made to Noncommercial Webcasters

The past few days have been eventful ones in the battle over Internet radio royalties. Appeals from the decision of the Copyright Royalty Board decision (see our memo explaining that decision, as well as our coverage of the history of this case) were submitted by virtually all of the parties to the case. In addition, the National Association of Broadcasters, which had not previously been a party to the case, filed a request to intervene in the appeal to argue that the CRB decision adversely affects its members. Also in Court, a Motion for Stay of the decision was submitted, asking that the CRB decision be held in abeyance while the appeal progresses. The "appeals" that were filed last week are simply notices that parties dispute the legal basis for the decision, and that they are asking that the Court review that decision. These filings don't contain any substantive arguments. Those come later, once the Court sets up a briefing schedule and a date for oral arguments - all of which will occur much later in the year. As the CRB decision goes into effect on July 15, absent a Stay, the appeal would have no effect on the obligations to begin to pay royalties at the new rates.

The Stay was filed by the large webcasters represented by DiMA, the smaller independent webcasters that I have represented in this case, and NPR. To be granted a stay, the Court must look at a number of factors. These include the likelihood that the party seeking the stay will be successful on appeal, the fact that irreparable harm will occur if the stay is not granted, the harm that would be caused by the grant of a stay, and the public interest benefits that would be advanced by the stay. The Motion filed last week addressed these points. It raised a number of substantive issues including the minimum per channel fee set by the CRB decision, the lack of a percentage of revenue fee for smaller webcasters, and issues about the ability of NPR stations to track the metrics necessary to comply with the CRB decision. The Motion raised the prospect of immediate and irreparable harm that would occur if the decision was not stayed, as several webcasters stated that enforcement of the new rates could put them out of business.

Tags: Internet Radio, Internet radio royalties, NAB internet radio, NAB webcasting, Noncommercial Broadcasting, copyright royalty appeal, copyright royalty board, internet radio appeal, internet radio recordkeeping, noncommercial webcaster settlement, sound recording recordkeeping, sound recording royalty, webcasting appeal, webcasting motion for stay

Posted on May 31, 2007 by David Oxenford

FCC Issues Rules on Digital Radio - With Some Surprises that Could Eventually Impact Analog Operations

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

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

Posted on April 4, 2007 by David Oxenford

FCC Announces Filing Window for New Noncommercial FM Stations

The FCC announced that it will open a window for new noncommercial FM stations and major changes in noncommercial stations - with all applications to be filed between October 12 and October 19. This is the first filing window to be opened for new noncommercial stations in almost 7 years, so the demand for these channels will no doubt be high. The FCC's Public Notice just announces that the window will open, but does not provide any specifics - which are promised in a later public notice.

There are many issues that will need to be discussed in any subsequent notice. First, the Notice released today indicates that the window will cover applications for stations in the noncommercial reserved band - between 88.1 and 91.9 on the FM band. However, since the last noncommercial window, the FCC has also reserved a number of allotted channels in the commercial band for noncommercial use - and these do not appear to be covered by the window notice.

Also, there have been discussions of the possibility of limiting applicants to a certain number of applications, or taking other actions to restrict the number of applications for these channels. With the new point system adopted by the FCC since the last filing window, local applicants are favored over national groups that may file applications - so if applications are limited, these national groups may well be effectively foreclosed from obtaining any channels in the window, as the choice of a limited number of channels may end up forcing these applicants to pick channels where there are local applicants who will prevail in any point system analysis.

We will see how this window develops in the coming months.

Tags: Noncommercial Broadcasting

Posted on March 29, 2007 by David Oxenford

FCC Revises Form 340 - Noncommercial Stations Can Now File One-Step City of License Changes

The FCC yesterday released a Public Notice announcing that the new Form 340 - Application for Construction Permit for Noncommercial Station - has been approved and is now effective. This is the revised form that allows noncommercial FM stations operating in the educational reserved band to file for city of license changes as minor changes, rather than having to wait for major change filing windows - which historically have been rare for noncommercial operators. So, noncommercial FM licensees who have been contemplating city of license changes - or commercial licensees looking at noncommercial city of license changes to "back fill" for their own proposed city of license change applications - are now free to file.

Commercial FM operators have been free to file city of license changes as minor changes since January 19. Many such applications have been filed, and they are being quickly processed by the FCC. For details about the new city-of-license-change procedure, see our posts here and here.

Tags: FM Radio, Noncommercial Broadcasting