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The FCC today released its further Public Notice in connection with FCC Auction No. 93, which offers for sale 119 construction permits for new FM radio stations in various communities across the country.  Further details about the auction can be found in our earlier post here as well as on the Commission's auction page here.  In all, 145 applicants filed the necessary short-form application expressing an interest in participating in the auction, although two of the applications were outright rejected as unacceptable.  Even though there are fewer permits available in this auction than in last year's Auction No. 91 (119 rather than last year's 144), interest in the auction appears to be strong as nearly the same number of applications were filed for this year's auction as for the last.  Of the 145 applications filed, 111 were listed as "complete" and 32 were designated as "incomplete", meaning that the FCC is requesting more information from those folks.  Those applicants will need to amend their applications prior to 6 PM ET on February 22nd in order to be eligible to participate in the auction. 

The next step in the auction process is for applicants to make an upfront payment by wire transfer to the FCC's bank before 6 PM East Coast Time on Wednesday, February 22nd. Only those applicants whose short-form applications are accepted as "complete" and have ponied up enough money to cover the minimum opening bid for at least one of the permits they have specified an interest in on their forms will actually be qualified to bid in the auction, which will begin on March 27th.  As always, the FCC advises applicants to make their wire transfer early to make sure that it is properly received rather than waiting for the last day.  Approximately two weeks before the start of the auction, the FCC will issue a subsequent public notice listing the qualified bidders and the amount of money they have put on deposit with the Commission.  The FCC will also conduct a Mock Auction on March 23rd so that applicants can familiarize themselves with the auction software and bidding process in advance of the actual auction on March 27th.  today's Public Notice also notes that the prohibition on communicating with competing applicants is now in effect. So applicants are prohibited from talking to other applicants about bids, bidding strategies, post-market structure, etc., unless they've indicated that the bidders have entered into a joint bidding agreement. 

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As the year hurtles to a close and desks are cleared for the holidays, don't forget that the window for filing an application to participate in the upcoming FCC Auction opens on January 3, 2012, the first business day of the new year.  As we wrote about earlier (here), the FCC will hold an auction on March 27, 2012, offering 119 construction permits for new FM radio stations. The permits are scattered across the country and have minimum opening bid amounts ranging from $1,500 to $100,000.  A complete list of the construction permits available in the auction can be found here.  The filing window opens at noon ET on January 3rd, and parties interested in potentially bidding in the auction must prepare and file an FCC Form 175 Short Form application before 6 PM ET on January 12, 2012 in order to be eligible to participate. Instructions on how to file a Form 175 and further information about Auction No. 93 can be found in the FCC's Public Notice. 

And even if you are not interested in participating in the upcoming Auction, stations should remember that in connection with Auction 93, the FCC will temporarily freeze the submission of all minor change applications for both commercial and noncommercial FM stations from January 3 through January 12, 2012.  This freeze will prevent existing stations from filing minor modification applications that might be mutually exclusive with the preferred allotment site coordinates that a potential bidder might specify on its short form application.  Licensees of existing stations should plan accordingly.  

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

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

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

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As we wrote about about back in September, the FCC has allocated two new DTV stations in the Mid-Atlantic region, one in New Jersey -- Channel 4 in Atlantic City -- and one in Delaware -- Channel 5 in Seaford).  With the release yesterday of its further Public Notice, the Commission has now officially slated the auction of the two new channels for Tuesday, February 15, 2011.  In the auction Notice, available here, the Commission formally adopts the rules and the minimum opening bids for the auction, setting the starting point for each construction permit at $200,000.  Applicants interested in participating in the auction will need to put at least that much on deposit in order to be eligible to bid, and will be required to start the bidding at that amount.  And while $200k is the starting point, there is no limit to the ultimate purchase price. 

Short Form Applications on FCC Form 175 must be submitted by 6:00 PM ET on December 15, 2010 in order to participate, and upfront deposits are due by 6:00 PM ET on January 21, 2010.  The FCC will hold a Mock Auction on February 11, 2011 to allow eligible bidders to test out the bidding interface, and the real thing will kick off on February 15, 2011.  As we discussed in our earlier post, given the looming issue of incentive auctions and spectrum repacking, as well as the reception issues attendant with low VHF channels, it will be interesting to see who turns out to participate in the auction, but as evidenced by the minimum opening bids, there's still plenty of value in a full power television construction permit and the cable and satellite must-carry rights that go along with it. 

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Interested in a brand new full power digital television station in Atlantic City, New Jersey, or Seaford, Delaware?  Then the FCC has just what you're looking for, provided that you're ready, willing, and able to build the station from the ground up and don't mind a low VHF channel.   The Commission today issued the first auction notice regarding Auction No. 90 for the auction of two new full power commercial television stations.  Having amended the DTV Table of Allotments earlier this year to drop in DTV Channel 4 at Atlantic City, New Jersey, and DTV Channel 5 at Seaford, Delaware, the Commission has moved quickly to the competitive bidding stage and starting the process to offer these new channels to interested parties.  Today's Public Notice is the first step in the auction process and seeks comment on the rules and procedures for the auction, including the proposed minimum opening bid amounts that it has set for each station, namely, $200,000.  The auction rules proposed by the Public Notice are consistent with those used in other recent broadcast auctions and don't really offer any surprises. The Commission does not propose a date for the proposed auction and that will be set by a future auction Notice.  Comments on the Commission's proposed auction procedures and minimum bid amounts are due by September 30th, with replies due by October 15th. 

By allocating and offering these new VHF channels for commercial television operations, the Commission is satisfying Section 331 of the Communications Act of 1934, as amended, which directs the Commission to allot at least one VHF TV channel to each state to the extent technically feasible.  Given the recent and ongoing debate over the possible reclamation of television spectrum or changes to the television interference protections,  it seems a bit counter-intuitive that the Commission is moving quickly to offer these two new full power TV stations, particularly in the (generally speaking) congested Mid-Atlantic Region.  Further, given the issues encountered by other DTV stations in operating on low VHF channels, Channels 4 and 5 may not be seen as prime spectrum, again particularly in the congested Northeast.  Both of those things said, however, a full power TV station is still a full power TV station.  And cable and satellite must-carry rights are hard to come by, not to mention the fact that the stations are located in Atlantic City, NJ and central Delaware, respectively.  So unless something radical happens in the next 12 months -- say like all consumers migrating to the consumption of television via the Internet instead of broadcast, cable, or satellite television -- it's likely that there will be a fair bit of interest in the auction of these two new stations.  

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The FCC's auction of 122 FM radio licenses came to a close last week with nearly a third of the licenses -- 37 to be precise -- remaining unsold at the closing hammer.  The outcome of the auction, which raised a net total of just $5.25 million on the sale of 85 licenses, may be seen by some as but the latest example of the current state of the radio industry.  As others have noted , the auction did not attract much attention from the beginning, with many of the qualified bidders depositing only small amounts of money, signaling that interest in the slate of licenses was not very keen. 

Admittedly, the large number of unsold licenses and the small total earnings for the 85 licenses that did sell is a reflection of the fact that many of the licenses being offered were smaller facilities in less populated areas, however, the auction results also reflect that it is a buyer's market these days.  The fact that 37 licenses went unsold meant that not a single bidder was willing to pay even the opening bid amounts for over three dozen of the licenses.  In the current marketplace, the FCC's opening price for these licenses was simply thought to be too high.  Further, of the 85 licenses that did sell, 33 of them were virtually uncontested, with the winning bid being submitted in the first, second, or third round.  Only a handful of the licenses saw active bidding throughout the auction. 

For those that succeeded in picking up a station in the auction, the 20% down payment is due by October 2, with the final payment and long form applications due by October 19, 2009.  A copy of the FCC's closing Public Notice is available here.  And for now, the unsold licenses will remain with the FCC to be re-auctioned at some point in the future, hopefully to a better result. 

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The dates and minimum bids are set – and the next auction for new FM stations is a go for September 1, 2009. Applications to participate in the auction are due during the period June 16 to June 25, and must be filed electronically at the FCC, specifying on which of the 122 available channels an applicant is interested in bidding. Full, detailed auction instructions can be found in the FCC’s Public Notice, and the list of available channels and the minimum bids for each is available here. To give time for applicants to prepare their applications, the Commission has also initiated a variety of freezes on the filing of certain FM applications.

A freeze on any application or Petition for Rulemaking seeking a change in the channel of any channel proposed for use in this auction has been imposed effective immediately. Applications that shortspace any of the reference points for any of these stations are also barred. A subsequent freeze on the filing of any minor change application by an FM licensee will also be imposed during the June window. These freezes are to give applicants for channels the opportunity to evaluate which channels are worth bidding for, and to specify specific transmitter sites for certain channels (different than the reference coordinates) which will be protected during the auction process. Thus, applicants who see the potential for an increase in value of one of these channels that may come through the location of the station at a particular transmitter site can specify that site, protecting it and the value that they see. 

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As part of its efforts to diversify the ownership of the broadcast media, the FCC promised in its recent order on Localism in the media (see our summary here) to have its engineering staff come up with a computer program to help people determine where a new FM station can be allotted by the FCC, opening the process that will result in an auction to determine who gets a construction permit to build that station.  Today, the Commission's staff released a public notice announcing that this new program is now on-line, and that interested people can see where a new FM station will "fit" consistent with all FCC rules that require that certain spacings be maintained between stations on the same or adjacent channels to avoid interference.  The program for determining whether new allotments can be made is available here.  All you need to do is provide geographic coordinates for a potential station, and the Commission's new program will tell you if a new FM station could work there.

As the Commission notes in its Public Notice, the tool will only locate Class A FM stations - the lowest power station - limited to 6 kw of effective radiated power at 100 meters tower height - giving a station a protected coverage radius of approximately 15 miles (though actual coverage may differ depending on factors including terrain and the proximity of other stations).  Also note that simply finding an empty channel does not get you a station.  Instead, a party who finds a channel in an area that they would like to serve must then petition the FCC to "allot" the channel to a specific community that they want to serve.  That proposal is processed by the FCC's staff and, if acceptable, placed on public notice when other parties can comment on the proposal or file counterproposals suggesting the use of the frequency at some other location.  Once the Commission reviews any comments, they will decide whether to allot the channel.  If and when an allotment is made, it still isn't ready for application.  Instead, the FCC saves new allotments and periodically puts out lists of these new allotments available for application - a "window" notice as a precursor to a possible auction.  Interested parties can then file with the FCC indicating interest in the channel and, if more than one person expresses interest in the channel (which virtually always happens), the channel will be auctioned to the highest bidder (though new entrants do get some bidding credits).  All told, the process can take several years from the discovery of the available channel to the award of the construction permit.  But, while the process may not be fast, this new tool provided by the Commission has made it somewhat easier.

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As the nation's television stations move closer and closer to the February 17, 2009 termination of analog broadcasting, plans are well underway to re-use the channel that these stations must surrender after that date.  Currently, most television stations operate on two channels, their traditional analog channel, and a transition channel on which they have been allowed to transmit their digital signal until the end of the digital transition.  As we wrote here, the FCC has assigned to all stations a final channel on which they will operate once the transition is complete (usually the transition channel or the original analog channel).  After February 17, 2009, the television stations will only broadcast on their final digital channel, and their other channel will be returned to the FCC.  All television operations will be consolidated in Channels 2 through 51, allowing the re-use of Channels 52-69.  Some of those returned channels have already been auctioned off (see our post here about some of the operations on those channels), and the FCC has recently announced auction rules for the remaining channels.  Our firm has just issued an Advisory setting out the important dates for participation in that auction - the so-called 700 MHz auction.  That advisory is available, here.

As these channels have excellent propagation characteristics, it is believed that they will be highly sought, with some estimates that the nationwide channels may bring several billion dollars into the Federal treasury.  Rumored uses include various forms of broadband access, either through open systems where consumers will pay for access as they do for any Internet access, but content providers will not have to pay, to more closed systems where the licensees determine what content will be provided.  As set out in the Advisory, at least some degree of openness to new devices that connect to the network is guaranteed on some portion of this spectrum under the Commission's orders.  But ultimately how much of that spectrum is used for closed systems transmitting video or audio entertainment (sounds like broadcasting) remains to be seen.   The more things change....

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