FCC Seeks Comments on Reimbursable Repacking Expenses for LPTV, TV Translators, and FM Radio

The FCC yesterday released a Public Notice asking for comments on a “Catalog of Expenses” that would be reimbursed to licensees of LPTV and TV translator stations, as well as FM broadcasters, who are impacted by the repacking of the TV spectrum following the TV incentive auction. We wrote here about the FCC’s Notice of Proposed Rulemaking looking to establish rules for that reimbursement process (note that reply comments in that proceeding are due October 26). What this Notice does is put out for review the FCC’s best guess as to what it would cost to accomplish certain tasks caused by the repacking – whether it would be for replacement equipment or necessary professional services. The Catalog sets out an expected price range. If a licensee’s costs fall outside the estimated price range, before any reimbursement could be made, additional documentation and justification would be required.

Thus, these estimates are important to ease the reimbursement process. Any licensees who are likely to have to rely on this reimbursement should review the estimates and comment if they think that the FCC has missed the mark. Comments are due by November 21, with replies due December 6.

Two Week Extension of C-Band Satellite Dish Registration Deadline

By David Oxenford on October 18, 2018 Posted in General FCC, Tower Issues

The FCC yesterday announced a two-week extension of time, through October 31, 2018, for the registration of C-Band earth stations used by many radio and TV stations to receive programming. As we have written before, the FCC is trying to determine what users are in the C-Band (aka the 3.7-4.2 GHz band) as it is trying to maximize its use and may want to consolidate or otherwise modify protections afforded to existing users. Any user not registered by the deadline may not be protected against any future users of the spectrum. Because of the large influx of earth station applications filed near the deadline (which had been yesterday), the International Bureau Filing System (IBFS) in which the registrations were to have been filed experienced intermittent difficulties that prevented some applicants from filing their registrations. Thus, for those who waited until the last minute to file (or were affected by Hurricane Michael), you now have an additional two weeks – but we certainly would not count on any further extensions.

Another EEO Audit – This Time for Cable – Reminds Broadcasters to Observe Their EEO Obligations

By David Oxenford on October 18, 2018 Posted in Cable Carriage, EEO Compliance/Diversity, FCC Fines

Earlier this month, the FCC announced another of its regular EEO audits, though this time it’s just for cable systems and other MVPDs who, like broadcasters, have EEO obligations. The FCC will audit 5% of all broadcasters and cable companies each year to assess their EEO compliance, so be prepared in case you are next. Broadcasters were last audited in June (radio stations only – see our article here), so their turn will come again. While the FCC has allowed broadcasters to meet their EEO outreach obligations solely through online sources (see our article here), that does not mean that they have stopped enforcing the rules (see our warning here) – even fining a group of stations late last year year when they had not kept adequate records of their EEO performance (see our article here). So avoid trouble should you be selected in the next set of random EEO audits – observe your outreach and paperwork obligations.

Music Modernization Act Becomes Law – Mechanical Rights To Become Easier Just As Performance Rights May Become More Difficult

By David Oxenford on October 15, 2018 Posted in Broadcast Performance Royalty, Intellectual Property, Music Rights

Last week, after passage by both chambers of Congress and signature by the President, the ‘‘Orrin G. Hatch–Bob Goodlatte Music Modernization Act’’ became law. The law underwent a few changes on its journey to approval, adding new provisions in the Senate to those which we summarized here upon its initial passage by the House. The Act retained its same principal purposes. The driving force behind the Act was the desire to simplify the payment of “mechanical royalties” by digital music services for the reproduction and distribution of the millions of musical compositions that they use in the songs that they serve up to more and more consumers across the country. That simplification was accomplished through the creation of a new collective through which these royalties will be paid – essentially a one-stop shop where the statutory royalty will be paid. The collective will have the responsibility for finding the copyright holders and songwriters who share in the royalties – removing the need for the music services to have to identify and pay all of the appropriate rightsholders, a process that has resulted in legal claims for hundreds of millions of dollars against these services for not being able to find all the parties who are supposed to be paid for the mechanical royalties.

The general layout of the system for dealing with the payment of these royalties, through a collective to be established, remains essentially the same as in the initial House Bill. Other provisions were added in the Senate (and then approved again by the House) dealing with matters including pre-1972 sound recordings, Sirius-XM royalties, and the ability of existing music organizations to continue to do direct licenses for mechanical and other rights outside the new statutory system. We may write about those issues later. But the Senate addition likely to have the most significance for the most music users was one having nothing to do with mechanical royalties, but instead with the performance royalty for music works (musical compositions) that is paid by music services, radio stations, bars and restaurants and any other location that plays music that is heard by the public at large. The new language added by the Senate requires that, before the Department of Justice recommends any changes to the consent decrees governing ASCAP and BMI, the DOJ must first notify Congress of any changes that it will be suggesting to the courts that administer the decrees, so that Congress can decide if it wants to take action to block or modify any such changes. Why is that significant? Continue Reading

Another FCC Broadcast Case Designated for Hearing – With Much Different Stakes

By David Oxenford on October 12, 2018 Posted in FCC Fines, FM Translators and LPFM, General FCC, License Renewal

Yesterday, the FCC issued a hearing designation order – though one with much lower stakes than the last designation order issued by the FCC which seemingly resulted in the termination of the proposed Sinclair-Tribune merger. Yesterday’s order was at almost the opposite end of the spectrum from a massive merger of TV companies – the upcoming hearing will determine whether to revoke the license of a Low Power FM station. Issues were raised as to whether the licensee in its FCC applications lied to the FCC about whether its board of directors was made up of US citizens – there being substantial evidence that the board members were in fact citizens of other countries.

As we wrote here when the Sinclair acquisition was designated, hearings are most commonly used when the FCC is faced with disputed issues of fact. But hearings are also required in some cases by the Communications Act, including in cases where there is a proposed revocation of an existing license, as appears to be the reason for the order yesterday – though the FCC also lists a number of issues in the LPFM case that need a factual review. These include whether the licensee made misrepresentations to or lacked candor with the FCC (essentially whether the licensee had lied to the FCC in its applications when it said its directors were US citizens), whether the license was controlled by aliens (i.e. foreign citizens), whether the licensee failed to keep information on file at the FCC accurate and up to date, and whether the licensee failed to respond to FCC inquiries (the FCC having asked for information about the apparent foreign ownership and received no response). Continue Reading

FCC Proposes Lessened Interference Protections for Class A “Clear Channel” AM Stations – What Does This Proposal Mean for AM Revitalization?

By David Oxenford on October 11, 2018 Posted in AM Radio, Emergency Communications, Public Interest Obligations/Localism

Late last week, the FCC issued a “Second Further Notice of Proposed Rulemaking” in its AM Revitalization Proceeding. The FCC has been taking steps over the last several years to attempt to restore AM radio to health. In last week’s Further Notice, the FCC followed up on ideas that it floated in 2016 in a prior order in the AM revitalization proceeding (see our articles here and here) suggesting that protections afforded to Class A AM stations be lessened in order to allow increased power by other more localized AM stations. Class A stations, often referred to as “clear channel” stations, are those 50 kW AM stations that are currently given interference protections both during the day and to their nighttime “skywave” signals (the signals heard hundreds and sometimes thousands of miles from the station’s transmitter site after bouncing off the atmosphere). These protections allow these stations to cover large geographic areas, and were particularly important in the early days of radio when these stations provided the only radio services to vast portions of the country that did not have local radio stations. In the Further Notice released last week, the FCC questions whether such protections are still necessary given the proliferation of other sources of audio programming (including radio stations, satellite radio and the Internet), and advances specific proposals that would reduce the protections accorded to these stations to allow some power increases by local AM stations.

This proposal is not without controversy. Obviously, station owners who hold Class A licenses do not believe that the service provided by these stations should be impeded. In fact, they note that many of these stations are among the few profitable AM stations in the country, often providing unique programming and substantial programming diversity to rural residents. These stations have also always been a favorite of long-haul truckers and others driving at night for providing uninterrupted service over vast distances. Perhaps even more importantly, and a question specifically raised for comment by the FCC, is the impact that any loss of service from these stations would have on the EAS network. Many of these stations serve as the primary stations for relaying national emergency messages to the EAS network. In fact, many of these stations have been provided funds by FEMA to improve their facilities to insure that they are available to provide uninterrupted service in the event of a national emergency. Continue Reading

FCC Releases Draft Order to Eliminate Broadcasters’ Obligations to File Contracts, Relying on Online Public File to Make Documents Available

By David Oxenford on October 4, 2018 Posted in FCC Fines, General FCC, Multiple Ownership Rules, Programming Regulations

The FCC this week released its draft order proposing to eliminate the requirement that broadcasters file certain contracts relating to ownership and control with the Commission. Instead, the disclosure of these documents will be made simply by observing the current requirement that stations either (1) make those documents available in the station’s online public file, or (2) make available a list of the required documents in the online public file with the documents themselves provided within 7 days to anyone who requests them, including the FCC. Certain other clarifications about the disclosure of such documents were contained in the draft order, which is expected to be adopted at the FCC meeting on October 23.

Among the documents that are required to be in the public file are those showing the governance of the license entity (e.g., articles of incorporation and bylaws); options and other documents related to future ownership rights; joint sales and time brokerage agreements; and television network affiliation agreements. In the draft order, the FCC requires that such documents be included in the online public file (either in full or by inclusion on the list) within 30 days of execution, or within 30 days of any amendment or other modification of the agreement. If only a list of the documents is provided in the file, all the information that is required on an Ownership Report, where such documents are listed, would be required – including the name of the parties involved and the execution and expiration dates of the agreements. Continue Reading

Long-Form Applications Due November 5 for FM Translators for AM Stations

By David Oxenford on October 3, 2018 Posted in AM Radio, FM Translators and LPFM

Earlier this year, there was a settlement window for mutually exclusive applications in the FCC’s application window for new FM translators for Class A and B AM stations. The FCC yesterday released a list of the applications that are now grantable as a result of conflict resolutions filed during that settlement window. These applicants must file their “long-form applications,” setting out the technical details of their proposed operations, during a filing window that will open October 4 and close November 5. The instructions for filing those applications are here. The list of applicants who are able to file is here. Also released was the same type of notice for three applications left over from the 2003 translator window, which were apparently left off earlier notices. That notice is here, and the list of applicants covered by it is here.

After the long-form application is submitted to the FCC, the application will be published in an FCC public notice of broadcast applications. Interested parties will have 15 days from that publication date to comment or object. If no comments are filed, and no other issues arise, the FCC’s Audio Division has become known for its speed in processing translator applications, so grants might be expected for many of the applications within 60 days of the end of any comment window.

FCC Quickly Disposes of Proposal for AM Station to Go Silent and Broadcast Exclusively on FM Translator

By David Oxenford on October 2, 2018 Posted in AM Radio, FM Translators and LPFM

Only three weeks ago, we wrote about an application for experimental authority filed by an AM station operator in Arizona, seeking permission to cease operating its AM station for a one year test to operate solely with its paired FM translator. We suggested that this proposal portended much for the AM band. However, the FCC apparently did not see this proposal as that earthshaking, and while we were at the NAB Radio Show last week, it dismissed the request for experimental authority to conduct this test on the grounds that it really did not propose any sort of experiment that the experimental rules were designed to promote.

The decision from the Audio Division of the Media Bureau found that the request did not meet the purposes of the experimental rules which require that, to be granted, a proposal needs to provide “research and experimentation for the development and advancement of new broadcast technology, equipment, systems, or services which are more extensive than that which currently exists or which require other modes of transmission than can be only implemented via an experimental permit.” The FCC found that no new technology was proposed (as everyone knows how an FM translator works) and that any market information about consumer behavior could be gathered while still operating the AM station. In addition, the FCC found that the proposal would undercut the FCC’s AM revitalization effort, which seeks to promote AM operations, not to allow AMs to transition into fully FM operations. So, AM operators with FM translators need to keep those AM transmitters humming for the foreseeable future if they want to keep operating those FM facilities.

Beware of the Political File Obligations in this Hot Political Advertising Year

By David Oxenford on October 1, 2018 Posted in Advertising Issues, Political Broadcasting

In this “political” year with Congressional mid-term elections in November, including many hotly contested races for seats in the US House of Representatives and the Senate, as well as many state and local elections, I receive many questions from broadcasters across the country. Perhaps the area in which most questions are received deals with the “political file,” particularly because these files are now available online. The fact that this file can now be viewed by anyone anywhere across the country has raised many questions that were perhaps less top of mind when the file was available only by physically visiting the main studio of a broadcast station. So, with the election just over a month away, meaning that the busiest advertising period will be coming up between now and the election, I thought that it would be worth taking a look at some of the online public file issues.

As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to take action on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. Thus, the documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file? Continue Reading