Posted on November 12, 2012 by David Oxenford

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

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

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

On the interference to full-power stations, the FCC decision will be one of how to interpret the Local Community Radio Act (which we summarized here). The LCRA allowed LPFM applicants to ignore spacing requirements to full-power FM stations, and imposed significant interference remediation obligations on LPFM operators if their operations caused interference to full-power FM stations. The order to be discussed at the November 30 meeting should discuss how the LCRA obligations will be interpreted, including issues as to the circumstances in which a second-adjacent channel waiver of the LPFM spacing obligations toward full-power stations will be granted, and in what circumstances an LPFM station that starts operations will have to cease such operations in the event of interference to a full-power station's regular listeners. See our summary of these issues here.

Proposals on LPFM power levels are also on the table. The Commission has authorized but never licensed LPFM stations operating at 10 watts, and has now proposed to do away with this class of station that some think will create more interference than new broadcast service. At the other end of the scale, the Commission has proposed creating a new class of LPFM station operating at 250 watts outside of major markets. We would expect that these issues and more will be considered at the upcoming meeting.

As FM translators have become more important to broadcasters as a way to reach more people with programming previously available only on AM stations and FM HD channels, the fate of the translator applications is very important. Full-power FM operators are also concerned about the prospect of increased interference from low power stations. And the LPFM advocates want these issues settled, so the long-delayed filing window for new LPFM stations can finally open next year. The November 30 meeting will be a very important one for all of these groups.
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Posted on April 6, 2012 by David Oxenford

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

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

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

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

The FCC asks for comments on a number of proposals to revise the LPFM service rules.  Some of the more significant changes proposed by the Commission include:

  • The FCC proposes to do away with the Class of 10 watt LPFM stations. While the FCC’s rules provide for such stations, the Commission has never opened a filing window for these stations. As their power and coverage would be so limited and this class of station has never been authorized, the FCC proposes its abolition.
  • At the same time, the FCC suggests that it might authorize LPFM stations to operate with as much as 250 watts effective radiated power in more rural areas. The FCC seeks comments on whether this higher power should be permitted and, if so, in what areas. The FCC suggests that the 250 watt power limit should be adopted only in areas outside of the Top 100 markets
  • The FCC also proposes to remove all restrictions on IF interference for LPFM stations operating with less than 100 watts of power. This mirrors the rules for FM translators and Class D stations.

On LPFM eligibility issues, the FCC proposes:

  • A clarification of the requirement that LPFMs be operated by local organizations, by making clear that this is a continuing obligation, not just one that applies when a station is first constructed
  • A proposal to expand the criteria of entities eligible for LPFM licenses to include Native American Nations
  • A proposal to allow LPFM operators to operate FM translators to expand their service – asking where such translators should be allowed and how much they can extend the service of an LPFM station
  • A proposal that Native Nations be allowed to operate multiple LPFM stations to provide broader coverage over reservations and other native territories

The Commission also suggested changes in the procedure for awarding new LPFM stations. These changes would amend the "points" given for certain criteria – points that are added up to determine which mutually exclusive application should be granted. The Commission also proposed amendments to its share-time obligations for applicants who remain tied after a point system analysis.

All-in all, this will be a very important proceeding for FM broadcasters seeking to protect the integrity of the FM spectrum.  Especially in spectrum-congested metropolitan areas, allowing second-adjacent channel short-spacings between full-power and low power FM stations has the opportunity to make spectrum congestion more acute, and radio reception more prone to interference.  And, as we wrote last week, the potential for an LPFM operator to have to cease operations because of such interference could be disastrous to a nonprofit organization that raises funds to operate a station that has to shut down.  In crafting its rules, the FCC will need to be careful to restraint the exuberance of potential LPFM applicants who may want to push any relaxation of interference rules to their limits.  File your comments on these important issues by the May 7 deadline. 
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Posted on March 25, 2012 by David Oxenford

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

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

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

In beginning its analysis, the FCC first needed to interpret the LCRA to determine what Congress intended as to the priorities to be assigned to translators and LPFM stations. The LCRA calls for both translators and LPFM stations to be made available in the various communities across the country. In determining where to process the pending translator applications, the FCC decided that it must take into account not only the pending translator applications, but also existing translators in various markets, to assess whether both services were available in particular communities. By determining that translators were already available in most markets, the FCC decided that, in many markets where new translator applications blocked the availability of spectrum for new LPFM stations, such applications would have to be dismissed to make channels available for LPFM.

Based on that analysis, FCC decided to adopt the “service floors” for LPFM stations, guaranteeing that there were a minimum number of available channels for LPFM stations in each market. These channels floors were adopted as proposed in the FCC's July rulemaking in this matter, setting requirements for the number of LPFM channels needed in a market in a range from 5 to 8, depending on the size of the market. This floor was based not on the number of translators already available in the market, but instead based on the average number of noncommercial stations in particular market sizes, which the Commission seemed to believe set some sort of standard as to how many LPFMs would be needed in that market.  Based on a complicated analysis of LPFM channel availability, where translator applications preclude opportunities to meet the LPFM service floors, they are to be dismissed.

In its Notice of Proposed Rulemaking in this proceeding, released last July, the FCC had proposed to divide markets into ones where all translators would be processed, and ones where all would be dismissed, based on whether there were a sufficient number of channels that could be used by LPFM applicants to meet the LPFM service floor. The FCC had made this go,no-go decision based on the availability for LPFMs of channels in a market determined from a grid 31 geographical seconds by 31 geographical seconds in size, overlaid onto the market. The Commission surveyed the points on the grid to determine the availability for LPFM service on each FM channel somewhere on the grid.  In reviewing the comments filed in this proceeding, the FCC backed away from the determination that markets would be all or nothing for translator applicants.

Instead, the FCC adopted a much more complicated process, determining that some markets which had been “process-all markets”, where all of the 2003 translator applications would be processed, overstated the opportunity for LPFM use, particularly where these markets were densely populated in their core areas. Thus, the Commission determined that it would overlay yet another smaller 21 by 21 grid over the larger grid that it had initially used. If, in any particular market, 75% of the population of the market was contained in that smaller grid, the smaller grid would be used to evaluate whether there was sufficient opportunity for LPFMs to meet the service floor in that more densely populated central urban core area.  Appendix A of the FCC's order sets forth the analysis of the 31 by 31 grid, and Appendix B sets forth the analysis of the markets requiring the more detailed 21 by 21 analysis because of their densely populated urban core.

However, in all markets, what had been “dismiss-all markets” are in fact no longer markets in which all translators will necessarily be dismissed. Instead of "dismiss all" markets, the FCC now refers to markets with insufficient spectrum to allow for the enough LPFM stations to meet the service floor if all translator applications are processed,  as "spectrum-limited markets."  In these spectrum limited markets, if a translator applicant can show that it proposes to operate on a channel where LPFM stations could not operate because of limitations imposed by nearby full-power stations, then the translator application will not be dismissed. This is possible as LPFM interference is based on mileage spacings to full-power stations, while translators can be located closer to a full-power station on the same channel, or on an adjacent channel, where the translator applicant can show that there will be no actual interference to that full-power station. However, in making the showing that the translator grant is possible because it will not block any viable LPFM opportunities, the translator applicant must assume that any LPFM applicant will be able to obtain a waiver of interference to full-power stations operating on second-adjacent channels (more explanation about this second-adjacent channel interference in Part 2 of our report on the LPFM orders, to be posted soon). 

Even these modifications to the process-all and dismiss-all market definitions do not end the FCC’s examination of the impact of translators on LPFM opportunities. The FCC was concerned that there was little opportunity for LPFM stations in the largest of markets because of existing spectrum use in those markets. But, it found that, in these largest of radio markets, there was an opportunity for LPFMs to serve population centers that existed beyond the 31 by 31 grid areas. Thus, any translator applicant proposing to serve areas in these markets, even if the area is beyond the 31 by 31 grid, must demonstrate that its proposed translator will not preclude an LPFM opportunity at the site of its proposed translator. If the translator application would preclude such use, the applicant can show that there is another channel available at the site for LPFM use. If it cannot make either showing, the translator application will be dismissed.   

Obviously, this presents a very complex methodology for translator applicants to use to determine whether or not their pending applications can continue to be processed. This complex methodology will seemingly create some degree of confusion as to which translators can be processed and which will be dismissed, and it will require substantial effort by the FCC to evaluate the showings made by translator applicants. Even though this process is not clear-cut, the FCC has imposed yet another complexity onto the system, by adopting caps on the number of pending translator applications that can continue to be processed, both on a national and on a local basis.

The FCC determined that one applicant can only continue to prosecute 50 applications on a nationwide basis. In local markets, applicants are limited to prosecuting one application in any spectrum-limited market. These caps were not adopted to protect opportunities for LPFM stations, but instead to deter speculation in construction permits for new translators. The FCC felt that some applicants were not filing for translators for purposes of building those stations, but instead for purposes of selling the permits they received. While there might be other more effective ways of combating such speculation by directly targeting those applicants who don’t truly plan on building out the translators for which they are applying (e.g. limits on the profits from resale or outright bans on resale of construction permits), the Commission felt that additional public comment would be needed before such processes could be adopted.  As the Commission was in a rush to wrap up the proceeding, they adopted this more indirect policy of combating perceived speculation.

Apparently, applicants will have to elect which of their applications to continue to process before any evaluation will be made of which will be allowed to be processed under the LPFM protection criteria set out above. Thus, applicants picking 50 applications to prosecute may well end up prosecuting less than 50 applications if the FCC does not accept their showings of protection to LPFM opportunities in spectrum-limited markets, and those picking one application in a market may well end up with none if their pick is one that the FCC later determines is one that does not protect LPFM opportunities.

After the determinations are made as to which applications to process by those who are subject to the cap, and whether or not applications are limited by LPFM opportunities, the FCC will open a settlement window so that the remaining applications that are mutually exclusive can attempt to work out their differences. After the settlement window, any remaining mutually exclusive applications will go to an auction.

Many of the new translators already granted and sold by the alleged speculators went to AM broadcasters, who were recently granted permission by the FCC to use FM translators to rebroadcast their stations. The limits on application processing by current translator applicants may well cut off the ready supply of additional translators to be used by AM licensees. Even though there may not be a supply of new translators to be used by AMs because of these limits on processing, the FCC did amend its rules to allow the use of new translators by AMs. Under the rules adopted almost three years ago allowing the use of FM translators by AM operators, only those translators already in existence could be used to rebroadcast AM stations. Now, any translator, whenever it is granted, can be used to rebroadcast AM stations.

We will write about the FCC’s decisions as to changes in the operating rules for LPFM stations in a subsequent article. These rules described here, setting out the processing of translator applications so as to protect LPFM opportunities, leave open many questions, and may yet be subject to appeal. So the last chapter in this long story may not have yet been written.

[In the interests of full disclosure, note that I have represented translator applicants in this proceeding]
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Posted on March 1, 2012 by David Oxenford

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

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

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

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

FM translator applications, for the most part, are filed by broadcasters (commercial or noncommercial), experienced in the business, who look for channels that are most likely to really "work" once they are put into operation.  Experienced translator applicants don't usually set up operations on channels that are closely spaced to popular local FM stations, even if the translator would meet the interference protections, as the applicants know that they stand a good chance of being forced to cease operations because of complaints from listeners to that local station.  When such complaints do occur, most translator applicants understand their responsibility to demonstrate either that they are not the cause of the claimed interference, or to remedy that interference or cease operations.  And, as the translator is an adjunct to another business, if the translator must be shut down, the operator still has their full-power operations to sustain the company.  The loss is essentially a cost of doing business.

LPFM applicants, in contrast, are by definition not affiliated with other broadcast stations.  They are non-profit groups seeking to establish their first station to serve a particular small community or neighborhood.  In filing applications, they are often relying on online application search tools that purport to demonstrate where a new station could "fit", or through some other simplified method of determining channels where applications can be filed. There may not be the more sophisticated analysis that many broadcasters go through to make sure that, even though there is no overlap of interfering contours, there is little chance for real interference.  When they build their station, and their expected listeners can't hear the station, or if they are creating interference to a full-power station, issue arise and can become contentious.  As LPFM stations are the only broadcast business of the nonprofit owners who put them on the air, having to cease operations because of interference would be a devastating blow, and in many cases can be one that is hard to comprehend by someone new to the business.  While these issues have been limited in number in the past, that is at least partially as there have been relatively few LPFM applications.  If there are truly thousands of new LPFM applications, these sorts of problems may well be widespread, which will no doubt cause issues for LPFM operators, the FCC and full-power broadcasters who want to protect their coverage areas.

The decision to come out next month also will resolve many other issues, including the following:

  • The markets in which translator applications from the 2003 FM translator window will be processed, and the ones in which they will be dismissed to make room for LPFM applications 
  • Whether there will be limits on the number of 2003 translator applications that one applicant can continue to process
  • Whether translators granted in this window can be used to rebroadcast AM stations.

This decision may mark the end of a very long process though, depending on the decision made, it may also just lead to further appeals and possibly further delays (see our coverage here, here and here, from 2008, when the FCC last thought that they had resolved the issue of what to do with the 2003 FM translators, and legal appeals followed).  Watch for this decision in the coming weeks.

 
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Posted on May 10, 2011 by David Oxenford

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

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

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

Why would we expect comment on this issue?  Many broadcasters have disputed the findings of the MITRE report, contending that it underestimated or downplayed potential interference. Even though the legislation was adopted, it was widely reported that this legislation was the result of a compromise between broadcasters and LPFM advocates (see our summary here).  So one would think that, as a compromise, the parties would not have resolved all controversial issues - but instead agreed to disagree on those matters where consensus was not possible.  Usually, when legislation contains a clause ordering a government study, it's because of one of those 'agree to disagree" moments.  And, certainly, many broadcasters that I have talked to think that interference from a significant number of new LPFM stations, even if it is all cumulative and not the result of any one new LPFM station, will result.  Perhaps we will see these points made in comments on the interference question.

On the issues that the FCC believes need to be considered - audience and advertising competition - the FCC asks a series of questions.  On the question of audience competition, the FCC asks for comments on the following:

  • Will LPFM stations have an impact on the audience ratings of full-power stations?
  • Have existing LPFM stations had an impact on the ratings of full-power stations?
  • Will Arbitron show any impact of LPFM on full-power stations?
  • Is Arbitron the only way to measure any impact of LPFM stations on full-power station's ratings?
  • How can such measurements be made in non-Arbitron markets?
  • Even if the impact of LPFM on full-power station ratings can be assessed, is there any way to measure the economic effect of any such impact?

On the issue of the impact of LPFM on full-power station's revenues, the Commission asks:

  • Does LPFM underwriting impact the advertising market for full-power radio?
  • How much LPFM funding comes from underwriting?
  • Is there any way to assess the impact of LPFM on the revenues of full-power radio stations?
  • Is BIA/Kelsey the bet source of revenue data for radio stations, or should other sources be used?

Finally, the FCC asks if the economic impact should be assessed where the FM station has a coverage area that encompasses an LPFM, or when an LPFM is simply in the same Arbitron market.

The Commission is looking for specific data to make these assessments - something that is probably going to be very difficult to come by.  It may well be that the biggest impact is the one that the FCC has preliminarily decided not to talk about.  So broadcasters should be ready to comment on all these issues - including the impact of interference - all by June 24. 
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Posted on January 5, 2011 by David Oxenford

Gazing Into the Crystal Ball - What Washington Has In Store For Broadcasters in 2011

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

Television Issues

Spectrum issues have been the dominant TV concerns in past years, first with the digital transition, and more recently with the "white spaces" rulemaking and the proposals advanced as part of the FCC's Broadband Plan to reclaim part of the TV spectrum for wireless broadband uses.  These issues remain on the FCC's agenda, as do new issues dealing with the carriage of television stations by cable and satellite television providers.  Specific issues for TV include:

Spectrum reclamation:  The initial proposals for the reclamation of part of the TV spectrum for wireless broadband were laid by the FCC's Notice of Proposed Rulemaking released in November, looking at how the TV spectrum could be used more efficiently, and how incentive auctions encouraging some TV stations to vacate their channels could be conducted.  Congress still has to pass legislation to allow such auctions, and it will probably also mandate a spectrum inventory to determine if the reclamation of the TV spectrum is really necessary to provide for wireless broadband needs.  At the same time, some TV operators have begun to talk about television stations themselves providing broadband service with their excess spectrum.  While Congress will probably act on the auction bills this year, and there will be much debate about the details of the reallocation issue, so don't expect final resolution of this matter in 2011.

White Spaces:  The FCC has authorized the operation of wireless devices in the television spectrum, resolving many of the concerns about interference to television operators by requiring all wireless users to protect operating TV channels in specific areas based on databases of existing users, not on spectrum sensing techniques.  But implementation issues still need to be worked out - including finding parties to compile and administer the databases to make sure that all existing spectrum users who are to be protected are registered.  Expect action on these matters this year, but no actual white spaces use until after these implementation efforts are completed.

LPTV Digital Transition:  While many members of the general public may consider the digital television transition to be complete, many Low Power TV stations and TV translators are still operating in analog.  The FCC has commenced a proceeding to require the transition of these stations to digital, suggesting that the transition be complete as early as the end of 2012.  Expect controversy on this issue.  Many LPTV stations feel that being forced incur the costs to covert to digital is premature and could imperil broadcast service, especially to rural areas and minority populations who rely on translators and LPTV stations, if spectrum repacking caused by any future repurposing of TV spectrum for broadband forces further technical changes.  These issues will be considered by the Commission this year.

Retransmission Consent Reform:  At the end of 2010, there was much controversy over retransmission consent issues, as there were instances where broadcasters and cable operators and other multichannel video programming distributors had difficult negotiations over the carriage fees to be paid to the TV stations.  FCC sources stated at the end of the year that a proceeding will be initiated to determine if the rules governing the negotiation process should be changed.  The multichannel video programming distributors and some public interest groups argue that the FCC should protect viewers who may have their TV service disappear if a TV station does not reach a deal with a MVPD, while the broadcasters argue that the ability to remove the station is the heart of the negotiation, and removing the risk of the MVPD losing the right to carry the station would negate the negotiation.  Look for this proceeding to commence early in the year but, as it will no doubt be very controversial, it may take some time to resolve.

DMA Boundary Issues:  The FCC has also begun a proceeding to look at DMA boundaries that cross state lines to see if every television viewer should be guaranteed to receive service from cable or satellite providers of a station in his or her state.  Television stations fear that this guarantee could upset traditional television markets, and could have an impact on retransmission consent negotiations in border counties.  Comments in this proceeding are due on January 24th, 2011.

Radio Issues

Radio has fewer unique issues on the front burner in Washington, but at least one is of incredible significance - the performance royalty.  Here are some of the issues facing radio broadcasters:

Performance Royalty:  Even though the performance royalty will have to start from scratch in the new Congress after dying in the Congressional session that just ended (despite having cleared both the House and Senate Judiciary committees for the first time), advocates of the royalty have made clear that they will be pushing on this bill again in the new session of Congress which began this week.  Look for the settlement talks with the NAB to restart now that everyone has returned from their holidays.  As with most issues, this is not an easy one, as the NAB put what many broadcasters thought was its best deal on the table in the Fall, only to have that deal rejected out of hand by the pro-royalty forces.  So don't look for any quick resolution of the issues this year. 

LPFM/FM Translator Issues: At the very end of 2010, Congress passed the long-delayed legislation clearing LPFM stations to operate on channels that are third-adjacent to full power FM operations.  Look to the FCC to adopt rules to implement this legislation, and to finally resolve the issues of what to do with the FM translators left from the 2003 translator window.

General Broadcast Issues

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

Multiple Ownership Rules Review:  Last year, the FCC issued its Notice of Inquiry to start its Quadrennial Review of the FCC's ownership rules.  Broadcasters hope that the FCC looks at the relaxation of small market duopoly rules for television and the sub-caps (limiting the number of AM and FM stations that one party can own) for radio, while some public interest groups are seeking tighter rules on ownership, including potentially cracking down on shared service agreements in television.  While the FCC had hoped to have this proceeding close to resolution by this point, the Commission has yet to even issue a Notice of Proposed Rulemaking setting out specific proposals, as certain academic studies on which the FCC planned to rely in making conclusions about the media marketplace, have been delayed.  Delay in resolving ownership issues should  really not be a surprise, as the appeals of the 2003 FCC decision revising the ownership rules, and of the FCC's decision in 2007 slightly relaxing the broadcast-newspaper cross-ownership rules, are still pending.  Look for more action in this proceeding, though probably no decision, this year.

Localism Rules and the Future of Media:  FCC's proposals to impose specific rules on how broadcasters serve the public interest, advanced in its "localism proceeding," are over 5 years old.  The rules that it adopted for television stations mandating on-line public files and detailed reporting on the quantity of news, public affairs, local programming, civic programming , election programming, independently produced programming and many other categories of programing, were adopted over 3 years ago, but have never become effective.  Some had thought that the FCC might be spurred to final action on some of these proposals after its special task force on the Future of Media issued its report as to how media should best serve the needs and interests of residents of their communities.  That report was supposed to have been issued by the end of 2010.  Obviously, that target was not met, so the consideration of all the localism issues seem to be stalled.  But don't be surprised to see that report in the first part of this year, spurring more FCC discussion about these issues - though probably in the form of further comments on the meaning of the report and the impact of its findings on these pending proceedings. 

EEO Rules:  The FCC recently issued some fines for EEO violations by broadcasters, but there are fundamental issues about the FCC's policies that have not been addressed in the 7 years since these rules were first adopted.  Proposals to extend the rules to part time employees, and to require the filing of FCC Form 395 (the form that classifies all employees by race and gender), are still pending.  Also pending are proposals sought in requests for reconsideration of the adoption of the EEO rules that would make the EEO rules comport with today's reality - such as the proposals to allow Internet-based EEO recruiting.  More recently, minority organizations suggested that the enforcement of the rules be suspended until they could be made tougher, as these organizations did not believe that the rules were sufficiently stringent to encourage diversity in the broadcast workforce.  Maybe this will be the year that some of these outstanding issues are finally resolved.

Political Rules:  As more and more money makes its way into the broadcast marketplace for political advertising following the Supreme Court's Citizens United decision, some have suggested that a comprehensive review of the FCC's political rules is in order.  These rules were last reviewed almost 20 years ago, and since then, there have been major campaign reform acts (e.g. the McCain-Feingold campaign reform act or BCRA), and significant Supreme Court decisions repealing portions of that Act.  Sales practices at broadcast stations have also changed, and the FCC has a long-outstanding proceeding on how Internet-based ad sales of remnant broadcast advertising inventory affect lowest unit rates.  With this being an off year before what will no doubt be a huge political year in 2012, if the FCC is going to review the political rules, this would be the time that it should be done.

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Many other issues may be decided through Court actions.  We just saw a ruling on indecency issues this week, and the appeals on that subject may well bring the issue back to the Supreme Court.  So expect more thrashing about on indecency this year, as a final court decision will likely be some ways down the road. 

While not really DC issues, copyright proceedings to determine ASCAP and BMI rates for both radio and TV could also be important.  Renewing old agreements or, particularly for radio, the potential reduction of obligations for music royalties to these organizations, are likely to be the subject of litigation that will take place this year.  Noncommercial broadcasters may also have to asses these issues, as the Copyright Royalty Board has just issued a notice commencing a proceeding to decide the royalties paid ASCAP, BMI and SESAC by noncommercial broadcasters for the next 5 years.

With their online activities becoming more and more important to broadcasters, actions that could affect advertising and on-line programming become ever more important.  One of the major areas likely to be considered this year that could affect online businesses is in the area of privacy regulation.  Both the FTC and the Commerce Department recently issued proposals for privacy regulation (see summaries of these reports from our firm's Broadband Law Advisor Blog, here and here), and Congress has been considering this area as well.  Look for more action here, and assess its potential impact on Internet advertising, recommendation software and other business practices. 

These are but some of the legal and regulatory issues that will be facing broadcasters in the upcoming year.  Each year, we make these predictions, and there are always numerous other issues arise that we did not anticipate.  So watch the trade press and the pages of this blog to see what trouble Washington can make for broadcasters as this year progresses.
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