Broadcast Law Blog

Broadcast Law Blog

Appeal Filed By LPFM Advocates Seeking to Stop Processing of FM Translator Applications

By David Oxenford on Posted in FM Translators and LPFM

Common Frequency and Prometheus Radio Project have once again filed with the FCC a request to halt the processing of hundreds of still-pending FM translators from the last translator filing window. The pending applications are the last remaining application from the window which allowed AM stations to seek FM translators to rebroadcast their signals. The latest filing is an application for review of the FCC Media Bureau’s denial of the initial Informal Objection to the translator applications, and the Bureau’s subsequent denial of reconsideration of that action. The LPFM advocates have been arguing that these new translators will preclude opportunities for new LPFM stations and changes in existing LPFMs. As we wrote here, the Bureau’s denial of the initial petition was based on a number of factors, including that the advocates had not shown how any one of the hundreds of pending translator applications would have an impact on LPFM opportunities. Moreover, the FCC staff found that nothing in the Local Community Radio Act, which governs the relationship between LPFM stations and FM translators, mandates that every application in every window be reviewed for the its preclusive impact on future applications.

Reconsideration of the FCC staff’s decision was denied in July on procedural grounds, finding that the advocates had not shown that they were a party to all of these applications – and thus they had no standing to file a reconsideration request. In the just-filed application for review, the advocates challenge the procedural decision as well as the substantive findings that their initial objections had no merit. Yet their arguments still miss the fundamental unfairness of their blanket filing against hundreds of applications – many serving rural areas where there is no spectrum shortage – without any showing as to why any individual application should be denied. And they do not explain how any application for a translator or an LPFM would ever be processed if each had to show that any application for a new station in one service does not preclude a station in the other. Their contention that grant of these translators would cut off LPFM opportunities and thus violate the LCRA’s language requiring that LPFMs and FM translators be treated equally and that opportunities need to be provided for both, would seemingly also compel the dismissal of any future LPFM application that could cut off FM translator opportunities. If their position was adopted, seemingly no application for an LPFM or a translator could ever get processed. We will await the full FCC’s decision on this latest filing which, if recent history is any judge, may well come quickly.

More Action Appears to be Coming on AM Revitalization – Looking at Revising Interference Protection for Class A Clear Channel Stations

By David Oxenford on Posted in AM Radio

FCC Chairman Ajit Pai, in a speech this week at the Michigan Association of Broadcasters Summer Convention (the text of the speech is available here), announced that he has circulated to the other Commissioners for review and approval a Notice of Proposed Rulemaking looking to make changes to AM interference standards. Specifically, he said that the NPRM would look at Class A AM interference standards. I was in the audience for the Chairman’s remarks, and audience reaction was muted – perhaps because so few people regularly use the term “Class A AM” when referring to what many call the “clear channel” stations – those big 50 kW AM stations that can often be heard halfway across the country at night because of their “skywave” service bouncing off the atmosphere to be received hundreds and sometimes thousands of miles from where the signal originates.

What to do about Class A AM stations was an issue teed up by the FCC in the AM Revitalization proceeding initiated several years ago (see our post here summarizing the issued raised by the FCC back in 2013). While these clear channel stations are enjoyed by listeners far from their own city of license (often bringing sports broadcasts to distant fans, or programs like the Grand Ole Opry that have become national institutions), the huge service areas of these stations does come at a cost to local service – as many lower powered AM stations operating on the same channel as these Class A stations have to either drastically reduce their power or cease operations all together during nighttime hours. While some AM licensees have received FM translators to fill in those service gaps, those translators do not bring listeners back to the AM band itself. So, in the Revitalization proceeding, the FCC asked for ideas as to what it should do with these stations – e.g. if it should advance proposals to reduce protection to the clear channel stations in order to allow more local AMs to increase their nighttime power. It appears that the NPRM announced by the Chairman on Tuesday will crystalize the comments received in response to the 2013 Notice into more specific proposals for action. Continue Reading

More on the Need to Make Clear Who Owns Digital and Social Media Assets

By David Oxenford on Posted in Intellectual Property, On Line Media, Podcasting, Website Issues

Last week, we wrote about legal issues for podcasters, and made the point that media companies should be making clear by contract or otherwise who owns the podcasts that their employees and independent contractors have created. This week, there was press coverage (see, for instance, the article here) about a law suit filed by a newspaper company against a former employee seeking ownership of a Twitter account used by the employee while at the newspaper and then taken by that employee to his new employer. The company claims that the Twitter account, covering a local college sports team, was property not of the employee, but of the newspaper – pointing out that the account had actually been started by a predecessor employee, and that the employee handbook gave all rights to intellectual property, trade secrets and other intangibles created by the employee during the course of his employment to the newspaper company. The fact that a lawsuit was filed must indicate that the former employee is not ready to accept the newspaper’s position on the subject. For readers of this blog, what it does is reiterate our suggestion last week that media companies make sure that it is clear, in legally binding documents, who owns intellectual property created by employees and contractors. And this should include not just podcasts, but webpages, blogs, and social media accounts and similar assets – all being important aspects of today’s relationship between media companies and their customers.

Comment Dates Set on FCC Proposals for Dealing with False EAS Alerts

By David Oxenford on Posted in Emergency Communications

Last week, we wrote about FCC changes to its EAS rules, including the adoption (not yet effective) of a requirement that a broadcast station report to the FCC when they broadcast a false EAS alert. In the order adopting that requirement and other changes to EAS practices, the FCC also issued a Further Notice of Proposed Rulemaking, suggesting other EAS changes to deal with false alerts – including asking if it should create a more detailed reporting system for false alerts, whether state EAS plans should be required to be amended to add procedures for dealing with false alerts, and looking for details about the delivery of wireless alerts to cell phones and other mobile devices. The Further Notice has now been published in the Federal Register. Comment dates on the Further Notice are due by September 10, and replies by October 9.

Overpower FM Translator Prompts $12,000 FCC Fine

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

In an Order released earlier this week, the FCC’s Enforcement Bureau imposed a $12,000 fine on the licensee of an FM translator in California because FCC inspections revealed that the translator was operating above its licensed power. The FCC found that the station was operating with a Transmitter Power Output of 7.5 watts, yielding an Effective Radiated Power of 33.7 watts, when the station was only licensed for .005 watts TPO and 10 watts ERP. While the licensee argued that the higher transmitter power output was necessary to achieve its authorized ERP, the FCC rejected that argument as a translator’s TPO is specifically set by its license and limited under the FCC’s rules, and to exceed the authorized TPO requires the grant of a construction permit or, at the very least, grant of an STA – neither of which had been sought by the licensee.

With so many new translators coming on the air, it is important for operators to remember to limit TPO to what is specified in a license. The power output cannot exceed 105% of what is authorized on the license (See Section 74.1235(e) of the FCC Rules). Full-power non-directional FM stations, on the other hand, can generally change TPO and transmission line without prior FCC approval as long as the change does not result in changes to authorized ERP (and even some ERP changes are permitted without a construction permit application – see Section 73.1690 for details), with the licensee only having to file an application for license on Form 302 after the changes have been made. But translators need approval to change TPO before it is done. Given the scrutiny now being placed on FM interference (see our article here about the FCC’s current proceeding to determine how to resolve complaints about translator interference), and the size of the fine issued in this case, translator operators should be sure that they know the rules and review their operations to make sure that these operations comply with the rules.

FCC Adopts Incubator Program To Assist New Radio Owners – What Does it Provide?

By David Oxenford on Posted in AM Radio, EEO Compliance/Diversity, FM Radio, Multiple Ownership Rules

At its meeting last week, the FCC adopted a Report and Order creating an incubator program to incentivize existing broadcasters to assist new entrants to get into broadcast ownership. The FCC in its order last year relaxing TV local ownership rules and abolishing the newspaper-broadcast cross-ownership rule had agreed to adopt an incubator program (see our articles here and here). In fact, the US Court of Appeals for the Third Circuit, which is reviewing the FCC’s ownership order, stayed the processing of that appeal to await the rules on the incubator program (see our article here), as the Court has previously indicated that considerations of how changes in the ownership rules affect new entrants is part of its analysis of the justification for such changes. What rules did the FCC adopt?

The FCC will encourage an existing broadcaster who successfully incubates a new entrant into broadcasting by giving them a “presumptive waiver” of the ownership rules. To understand what this means requires looking at several questions including (1) what services does the existing broadcaster have to provide to qualify for the credit; (2) which new entrants qualify for incubation; (3) what is a successful incubation; and (4) what does the presumptive waiver provide to the broadcaster providing the incubation services. Let’s look at each of these questions. Continue Reading

A Presentation on Legal Issues for Podcasters – Who Owns What?

By David Oxenford on Posted in Advertising Issues, Intellectual Property, On Line Media, Podcasting, Website Issues

Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast. Continue Reading

EAS Updates – Nationwide Test, Filing Deadline for Revised Form 1, and New Rules for Use of EAS Tones and Reporting of False Alerts

By David Oxenford on Posted in Emergency Communications

The last month has been one where there has been lots of activity dealing with EAS. The FCC announced that it will be conducting a Nationwide EAS Test on September 20, 2018. The FCC has been conducting these Nationwide tests routinely over the last few years (see, for instance, our articles here and here on past tests). This test will include wireless carriers as well as broadcasters. To be prepared for this test, the FCC reminded EAS participants to file their updated ETRS Form One by August 27 (see our article here), and to be prepared to file the post-test Forms Two (filed on the day of the test) and Three (due by November 5) to report on the results of the test at their stations.

At its July meeting (as we briefly noted here), the FCC adopted an Order making some changes to the EAS rules, as well as asking further questions in an included Further Notice of Proposed Rulemaking. The changes included:

  • New rules allowing “live code testing” – using actual EAS alert tones in practice alerts, but only after providing lots of publicity that the tones are being used only as part of a test
  • Allowing the use of the EAS attention signal in PSAs and other informational announcements from FEMA and other public interest organizations – but only where simulated tones developed by FEMA are used, as these simulated tones will not trigger other station’s EAS alerts, and only where the tones used are specifically identified as not being a real notice of an emergency.

Use of the alert tones like this have been approved in the past by the FCC, but only by use of a waiver process. The FCC actions allow for more testing and more public information without having to request FCC approval for each such use. Continue Reading

August Regulatory Dates for Broadcasters – EEO Filings, Comments on FM Translator Interference and Class C4 Proposal, EAS Form One and More

By David Oxenford on Posted in Children's Programming and Advertising, EEO Compliance/Diversity, Emergency Communications, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, Low Power Television/Class A TV

It may be time for summer vacations, but the FCC seemingly never rests, so there are a number of important dates of which broadcasters need to take note. By August 1, EEO Annual Public File Reports are due to added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, if those stations are part of an Employment Unit with five or more full-time employees. TV stations in California have the added requirement that they submit an EEO Mid-Term Report with the FCC by that same date. While the FCC last year simplified EEO recruiting, it still enforces the EEO rules, as evidenced by an admonition that was issued to a TV station at the end of last week, and the fines imposed on radio stations late last year. So don’t forget these obligations (especially as the enforcement of these rules will soon be handled by the FCC’s Enforcement Bureau, rather than the Media Bureau, suggesting that there will be more enforcement of those rules – see our article here).

On other matters, there are numerous open FCC proceedings in which broadcasters may want to participate. Comments are due on August 6 on the FCC’s rulemaking proposal to adopt simplified rules for processing complaints of interference by FM translators to full power stations. See our articles here and here for details on that proposal. Continue Reading

Comments Dates Set on FCC Rulemaking to Explore Reform of Children’s TV Rules – What Is Being Asked?

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

The FCC’s Notice of Proposed Rulemaking on Children’s Television has been published in the Federal Register, setting the dates for comments on the questions that the FCC asks about changing the rules – particularly those rules dealing with educational and informational programming directed to children. Comments are due September 24, with replies due October 23. See the FCC Public Notice on these comment dates for more information. With the dates now set, it is worth reviewing the questions that the FCC asks about whether changes in the video marketplace require that the rules for educational and informational programming be changed.

The rules currently require that a television station broadcast an average of three hours per week of “core” educational and informational programming directed to children 16 and under to avoid special scrutiny by the FCC at license renewal time. Core programming must run between 7 AM and 10 PM, and must be aired at regularly scheduled times in blocks of at least half an hour. For stations that multicast, each multicast stream has an independent 3 hour per week obligation, though the required children’s programming for one multicast channel can run instead on another multicast channel (or on the station’s main channel) as long as it reaches a comparable MVPD audience. What changes are being considered? Continue Reading