Broadcast Law Blog

Broadcast Law Blog

FCC Extends LPTV/TV Translator Displacement Filing Window – Deadline Now June 1

By David Oxenford on Posted in Incentive Auctions/Broadband Report, Low Power Television/Class A TV

The FCC yesterday released a Public Notice announcing an extension in the application filing deadline in the window for LPTV stations and TV translators that are displaced by the TV repacking following the incentive auction. In this window, displaced stations can file applications for new channels or new facilities that remove their conflicts with repacked stations or which move the LPTV or TV translator into the spectrum that will continue to be devoted to TV broadcasting after TV channels above 37 are repurposed for wireless uses. The new deadline for displacement applications for these LPTV and TV translator stations is now June 1.

We wrote about the opening of the window, here, and about the FCC’s rules for this window here. As the window is already open, the two-week extension gives potential applicants more time to avoid conflicts with other applicants in the window. Applications that are filed in the FCC’s LMS database will be available for viewing by other potential applicants shortly after they are filed. As applications can be amended through the end of the window, applicants can avoid specifying channels already proposed by other LPTV stations or TV translators in their markets, or otherwise deal with conflicts that might otherwise exist. So take note of that new closing date of the displacement window and the opportunities that it affords – opportunities not available once the window closes.

 

Commissioner Clyburn to Leave the FCC

By David Oxenford on Posted in General FCC

At the end of yesterday’s FCC meeting, Commissioner Clyburn announced that it would be her last.  Her term had already expired but, under the rules of the FCC, she could continue to serve until the end of the year.  She apparently has decided to leave the FCC within the next few weeks. Commissioner Clyburn served as Acting Chairman of the FCC in 2013, the first woman to chair the FCC.  For broadcasters, she is best known for starting the AM revitalization proceeding, including the proposal for FM translator filing windows reserved for AM stations (see our article here).  While Congressional Democrats have advanced a candidate to replace the Commissioner, no nomination has been made by the President given that, until now, there was not a vacancy to fill.  Watch for more news on filling that vacancy in the coming months.

 

Another Legal Update From the NAB Convention – FCC to Look at the KidVid Rules in a Formal Proceeding Soon

By David Oxenford on Posted in Children's Programming and Advertising, Digital Television, Television

We just wrote about the FCC talk at the NAB Convention about translator interference and pirate radio. On the TV side, there was of course mention of the remaining TV post-incentive auction transition issues with the repacking of displaced full-power stations and the open window for displaced TV translators and LPTV stations to find new homes in the remaining TV spectrum. But the other issue that came up in several regulatory conversations was reform of the Children’s Television or “KidVid” rules. As we wrote here, Commissioner O’Rielly has been put in charge of that rewrite after expressing concern that these rules did not reflect modern competitive realities (see our summary of the Commissioner’s blog post where he raised issues that he saw with the current rules). Under current rules, stations have to find three hours of educational and informational programs for their primary program channel as well as each of their digital subchannels. Particularly as the number of those subchannels could expand with ATSC 3.0, these stations will likely have difficulty finding audiences for all of that programming when the children’s audience is served by so many other outlets, including dedicated children’s channels on cable and satellite platform, and by all sorts of on-demand content.

In his speech at the Convention, Chairman Pai mentioned the efforts of Commissioner O’Rielly to review these rules. Commissioner O’Rielly, in remarks that he made at a convention breakfast, notes that he has been told that young children’s viewing of over-the-air television has precipitously dropped in recent years. At the same time, as attention spans have decreased, the FCC remains wedded to a 3 hour per week requirement for educational and informational on each programming channel offered by a TV broadcaster, and it must be provided in blocks of at least one-half hour to meet the standard review thresholds. Commissioner O’Rielly is looking for new ways for the FCC to address children’s programming requirements, and expects the FCC to start a formal proceeding to address changes in the rules by this summer. So look for more developments on this front quite soon.

FM Translators and Pirates on the FCC Agenda at the NAB Convention – New Rules on Translator Interference to be Proposed

By David Oxenford on Posted in AM Radio, FCC Fines, FM Radio, FM Translators and LPFM

At this week’s NAB Convention, issues about FM translators and pirate radio dominated the radio news from the sessions that featured FCC speakers. On the translator front, FCC Chairman Pai, in his speech to the convention, announced that there is a Notice of Proposed Rulemaking that has been drafted and is being considered by the FCC Commissioners, looking to make changes in how complaints about interference to full-power stations from translators would be handled. Currently, a single complaint from a regular listener to a full-power FM station, even if that listener listens outside of the full-power station’s protected contour, is enough to shut down the new translator if the translator licensee cannot resolve that complaint. This policy has prompted a number of battles between translators and full-power stations over whether complaints have come from bona fide listeners (as opposed to employees or others with close connection to the complaining station) who are receiving real interference, and whether or not that interference truly exists (e.g., whether it has been caused by the new translator) and whether or not such interference has been remediated by actions taken by the translator licensee. Last year, the NAB proposed a number of fixes to the policy – suggesting that more than one complaint should be required to prove true interference and that, if interference is found, that the translator be allowed to relocate to any available channel on the FM band to remediate that interference, not just to adjacent channels as a “minor change” as currently required (see our summary of the NAB proposal here). It is anticipated that the FCC’s proposed rulemaking will contain some of the NAB’s suggestions.

Pirate radio was also on the Chairman’s agenda, and was discussed in a panel of other FCC officials at the convention. The Chairman highlighted the recent seizure of a pirate radio operator’s equipment in the Boston area, mentioning that two other such actions had also been taken. The discussion in other panels highlighted the FCC’s willingness to pursue not only pirate operators themselves, but also their landlords where the landlord appeared to be actively involved with the pirate’s operation (see our article here). The FCC is also looking for legislative assistance to broaden that authority to undertake enforcement actions against those who make possible pirate radio operations through providing space, services, or other assistance (see our article here). Watch for further actions on both issues in the near future.

What’s Next for the FCC’s Radio Ownership Rules? – Do Changes in the Audio Marketplace Justify Changes in Ownership Limits?

By David Oxenford on Posted in AM Radio, FM Radio, Multiple Ownership Rules, On Line Media, Public Interest Obligations/Localism

With the NAB Convention upon us, and much of the talk being centered on television issues including the repacking of the TV band after the incentive auction, the conversion to the next-generation of TV transmission as allowed by the new ATSC 3.0 transmission standard, and the effects of the FCC’s changes in the local television ownership rules and the reinstatement of the UHF discount in connection with the national ownership cap, it almost seems like radio is an afterthought. The FCC is considering some matters of interest to radio, including how to revitalize the AM band, and it has taken steps to revitalize individual AM stations through the use of FM translators. And the FCC is apparently considering changes in FM through the creation of a new class of C4 stations (see our post here). Yet, in recent ownership orders from the FCC, while TV ownership rules have been dramatically relaxed in the face of new video competition so that local TV owners can more robustly address their challengers, there were no corresponding changes in the radio rules. In the last ownership proceeding (which we summarized here), other than making changes to the embedded market rules (potentially affecting only radio stations in the suburbs of New York and Washington), and allowing ownership joint ownership of radio with TV and newspapers through the abolition of the cross-ownership rules that had limited or prohibited those combinations, radio ownership rules themselves have not been subject to any real changes in ownership limits since those limits were set in the wake of the 1996 Telecommunications Act. The FCC did make some changes early in this century when it adopted Arbitron (now Nielsen Audio) markets as the way in which competition in rated markets is defined, but the numbers of stations that one party can own has not changed since those numbers were established in the 1996 Act – even though Congress gave the FCC the authority to review and revise the rules to insure that they remained in the public interest.

While there have been no changes in the ownership rules for radio, think about the changes that have taken place in the competitive environment since 1996. At that point, streaming was something only a few technologically-forward people even knew existed. Pandora did not launch its streaming service for another decade, and Spotify was even further behind – not launching in the US until 2011. Even those few people who knew that audio streaming existed in 1996 would never have thought that they could listen to a streaming service in their cars. Apple was not offering a streaming music service – in fact it had not even introduced the iPod (introduced in 2001) or the iTunes store (2003) – both now about to become technological relics themselves because of technological changes. Given that there was no iPod, there were obviously no podcasts to bring audio storytelling to the millions who now listen to their favorite programming through the multitude of services that provide podcasts on almost any subject. There was no Alexa to bring Amazon and other music services into the home – in fact Amazon itself had only begun selling books online in 1995. Even Sirius XM (then Sirius and XM as two competing companies) had not initiated their services at the time of the 1996 Act – as XM did not start providing service to consumers for another 5 years (with Sirius launching a year later). And the pace of change for audio technology is not slowing. Continue Reading

FCC Opens Settlement Window for Mutually Exclusive Applicants in Second Translator Window for AMs Seeking FM Translators

By David Oxenford on Posted in AM Radio, Broadcast Auctions, FM Translators and LPFM

The FCC yesterday issued a Public Notice announcing a window for mutually exclusive applicants filed in the second translator window to attempt to resolve the interference conflicts that the FCC found to exist between certain applications. The conflicting applications are listed on the Excel spreadsheet found here. These are translator applications filed in the second translator window in late 2017 which was opened primarily so that Class A and B AM stations could seek authority to rebroadcast their signals on new FM translators that would be tied to those AM stations. While mutually exclusive parties can start discussions now about resolving the conflicts between their applications, engineering amendments resolving the problems or other settlement agreements can only be filed in a window open between May 24 and June 14.

As we wrote here, applications filed in this second translator window that are not mutually exclusive have already been told to file their “long-form” applications detailing their technical proposals by May 9. The FCC has also recently scheduled auctions for mutually exclusive applicants in the first 2017 translator window who were not able to resolve their mutual exclusivity in the settlement period opened in connection with those applications (see our article here). An auction of mutually exclusive applications left over from the 2003 translator window has also been scheduled (see our post here). So, all in all, the FCC is moving rapidly to authorize many new FM translators in the coming months.

Comments Due April 30 on FCC Proposal to Abolish Form 397 EEO Mid-Term Report

By David Oxenford on Posted in EEO Compliance/Diversity

As part of its Modernization of Media Regulation initiative, the FCC proposed to do away with the requirement for TV station employment groups with 5 or more full-time employees and radio employment units with 11 or more full-time employees to file a Mid-Term EEO Report, (Form 397). We wrote about that proposal here, where the FCC suggested that the filing of the report is unnecessary as the report basically consists of submitting the past two years EEO Public Inspection file reports, and those reports are now available to the FCC and the public through broadcaster’s online public inspection files. EEO enforcement would continue (including a mid-term review of the stations now subject to review), but the reports would not need to be filed. The proposal was published in the Federal Register today, setting a deadline for comments of April 30, and a deadline for reply comments of May 15. Interested parties should file their comments by these deadlines.

FCC Continues War on Pirate Radio – Seizes Equipment of Boston Stations While New Legislative Tools May Be on the Way

By David Oxenford on Posted in Emergency Communications, FCC Fines, FM Radio, General FCC, Programming Regulations, Public Interest Obligations/Localism

The FCC yesterday announced that they had seized the equipment of two Boston-area pirate radio stations that had refused to cease operations after receiving FCC notices to do so. The FCC Public Notice on the seizure thanks the US Attorney’s Office and US Marshall’s Office, and the Boston Police Department, for assisting the FCC Field Office in carrying out the seizure authorized by the Communications Act for stations operating without a license. Seizure of equipment is carried out pursuant to Section 510 of the Communications Act, and generally requires that the US Attorney receive approval of a US District Court before the equipment can be seized Thus, the cooperation of the US Attorney’s office in a local jurisdiction is vital to conducting a seizure such as that done in Boston. Commissioner O”Rielly, who has been a vocal proponent of increased actions against pirate radio (see our post here) issued a statement commending the action and calling it a complement to legislative action to enhance fines on such stations and impose clear liability on landlords who host pirate operations (see our post here about a case where the FCC has already put landlords on notice of potential liability for pirate radio operations where they had clear involvement in such operations).

Legislative action on pirate radio seems to be in the works. To combat pirate radio operations, the House Subcommittee on Communications and Technology last week held a hearing (video available here) on proposed bills to amend the Communications Act, including one called the Preventing Illegal Radio Abuse Through Enforcement (PIRATE) Act (see discussion draft here). The draft bill would raise potential fines on pirate radio operators to $2,000,000, and fines of up to $100,000 per day for violations of the Communications Act and FCC rules related to such pirate operations. It would eliminate the need to provide pirates a Notice of Apparent Liability, with the opportunity to respond, before a fine is issued to an operator of a pirate radio station, if the operator is caught in the act of operating the illegal station. The Act would also make clear that those who facilitate pirate radio operations are also liable for up to $2,000,000 fines (“facilitates” is defined to include providing property from which the pirate operates or money for their operations). The draft bill also calls on the FCC to, twice each year, dedicate staff to “sweep” the top 5 radio markets determined to have the most pirate activity to identify pirates and seize their equipment, and authorizes states to enact their own laws making such operations illegal as long as the determination of who is a pirate radio station is made by the FCC.  Continue Reading

FCC Requests Comments on Extension of Compliance Deadline for TV Stations to Convert Non-Textual Emergency Information into Audio on SAP Channel

By David Oxenford on Posted in Emergency Communications, Television

In 2015, TV broadcasters were required to convert textual warnings about emergency events that are broadcast outside of news programs  (e.g. weather alerts that are displayed as textual crawls during entertainment programming) into audio, and to transmit that audio on the station’s SAP channel. The deadline for that requirement was extended, and then paired back when the FCC determined that some of the events that might be listed in textual alerts, like school closing information during winter weather, could not feasibly be broadcast in a timely fashion on the SAP channel (see our summary here). The text-to-speech requirement for broadcast of emergency information on the SAP channel did go into effect on November 30, 2015. But the FCC extended the deadline for converting non-textual information (such as weather graphics) into speech for broadcast on the SAP channel, as no ready technology for such conversion exists. The most recent extended deadline for compliance with the requirement for non-textual information to be converted to audio runs through May 26 of this year (see our article here). The FCC has just issued a Public Notice announcing that the American Council of the Blind, the American Foundation for the Blind, and the National Association of Broadcasters have now asked for a further extension of the compliance deadline, as no technology for this graphics to speech conversion yet exists.

The parties ask for a 5 year extension of the compliance deadline to find a solution that will allow non-textual information to be converted to audio, and the groups pledge to continue to work together to find a solution. The FCC asks for comments on this proposed extension.  Comments are due by April 13, 2018 with replies due by April 20, 2018. In the interim, of course, all obligations of TV stations to convert textual alerts run during non-news programs to audio alerts broadcast on a TV station’s SAP channel remain in place.

April Regulatory Dates for Broadcasters – First Quarterly Issues Programs Lists in Online Public File for All Radio Stations and Other Important Dates

By David Oxenford on Posted in AM Radio, Children's Programming and Advertising, EEO Compliance/Diversity, FM Radio, FM Translators and LPFM, General FCC, Low Power Television/Class A TV, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, Television

April brings with it a milestone – as it is the end of the first quarter since all radio stations have had to have their online public inspection file “live” so that anyone, anywhere, can view a station’s compliance with rules that previously could only be judged by going to the station and reviewing the paper public file. April 10, in particular, is important, as it is when Quarterly Issues Programs Lists, summarizing the most important issues facing the community which the broadcaster serves and the programs that the broadcaster aired to address those issues, must be in the online public file for all full-power radio and TV stations. We wrote about the importance of these sometimes overlooked documents here, as these are the only FCC-mandated documents that reflect how a station has served the needs and interests of its community. We have also noted that, in the past license renewal cycle, missing Quarterly Issues Programs lists were the source of the most fines issued to broadcasters. Now that compliance can be judged at any time by the FCC, their importance is only magnified. So be sure that you get these documents into your online public file by April 10.

EEO Public Inspection File Reports, summarizing a station’s employment record for the prior year, are also to be uploaded to a station’s online public file. For radio and TV stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, these reports need to be completed and included in the public file by April 1 by all stations that are part of employment units with 5 or more full-time (30 hours per week) employees. In addition, radio stations in employment units with 11 or more full-time employees in Delaware and Pennsylvania, and TV stations in Texas with 5 or more full-time employees, also need to file EEO Mid-Term Reports, commonly referred to as FCC Form 397 applications. While the FCC is considering the abolition of the Mid-Term Report (see our article here), the obligation is still in place so, for now, stations must comply. Continue Reading