November 2012

112 new FM channels will be available in the next auction for new FM channels (referred to by the FCC as "Auction 94") to be held beginning April 23, 2013. To participate, interested parties must file their "short form" applications – setting out information about the ownership of the applicant and the channels in which they are interested – by February 6, 2003. All of the procedures for the auction are set out in the order released late Wednesday, available here. The locations of the available channels, authorizing the winners to build new FM stations  serving the named communities and the nearby area, are also set out in this attachment to the order. The notice adopts many of the same procedures set out when the Commission first proposed the auction back in September (see our article here). However, the Commission pushed the auction back the initially scheduled date for the auction by about a month to avoid religious holidays and the NAB Convention, ending up with the new starting date of April 23. The Commission also pushed back other dates associated with the auction, deleted a handful of channels that had been proposed for inclusion in the auction but had not been properly published in the Federal Register, and announced other decisions relating to the auction – all with many cautions for those who may be bidding about the possible pitfalls of the auction process.

The relevant auction dates are as follows:

Auction Tutorial Available (via Internet) …………………….January 28, 2013

Short-Form Application (FCC Form 175)

Filing Window Opens ……………………………………………….January 28, 2013; 12:00 noon ET

Short-Form Application (FCC Form 175)

Filing Window Deadline……………………………………………February 6, 2013; prior to 6:00 p.m. ET

Upfront Payments (via wire transfer)…………………………..March 18, 2013; 6:00 p.m. ET

Mock Auction ………………………………………………………….April 19, 2013

Auction Begins…………………………………………………………April 23, 2013

The most important dates for bidders are the deadline for the submission of the "short-form" application of February 6, the date for the Upfront Payments, and of course the dates for the start of the auction itself. The short-form lists the owners, any bidding agreements that the parties have with other bidders, and the channels in which the party is interested in bidding. The bidder can also submit specific proposed transmitter site coordinates for any channel in which they are bidding, which protects those named sites from moves by other existing stations that could otherwise preclude their use.   The failure to meet this February 6 deadline means that a party cannot participate in the auction.Continue Reading FCC Sets Deadlines and Procedures for the April 2013 Auction of 112 New FM Channels – February 6 Deadline for Applications to Participate

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

What should broadcasters worry about from an FCC inspection? A few weeks ago, I was speaking at the Kansas Association of Broadcasters’ annual convention. At the convention, I attended a session conducted by an FCC field inspector and the engineer who conducts the "alternate broadcast inspection program" ("ABIP") for the KAB.  We’ve written about the ABIP program before, and how beneficial participation in that program can be for stations that want to avoid an FCC inspection and possible fine. At the convention, these inspectors talked about the issues on which the FCC is focusing in recent inspections. These issues are not to the exclusion of other common issues that we have written about before – like the need to keep the public file updated, the completion of quarterly issues programs lists, the need to maintain operational an EAS encoder/decoder, and the requirements for manned main studios. But there are other issues, including some that have not been a focus in the past, that now require broadcasters to be on guard.

One issue deals with broadcast auxiliaries. These are the licenses that broadcasters use in connection with their main studio operation. This includes licenses like Studio-Transmitter Links (STLs) that relay programming from the studio to the transmitter site and Remote Pickups (RPUs) that convey remote information back to the studio. During the summer, the FCC fined several stations for using auxiliaries without a license in amounts up to $20,000 (here and here), and issued a fine for $8000 for a station using an STL at a location different than that set out on the STL’s license. Have you moved a main studio in recent times? If so, did you amend your STL license to specify the new studio location – which is most likely the new transmit site for the STL? If you haven’t, and the FCC catches you, you may be looking at a fine.Continue Reading FCC Inspection Issues for Broadcasters – Auxiliary Licenses, Chief Operator Designations, and Tower Issues

Hurricane Sandy (or "Superstorm Sandy as it now seems to be called) has resulted in an outpouring of support from broadcasters across the nation, looking for ways to raise funds for those that have been affected by the storm and its aftermath. Noncommercial broadcasters who are interested in joining in the fundraising efforts were aided by…

For one blog entry, I’ll depart from our usual discussion of legal issues. There is plenty of time to analyze the effect that last night’s election will have on the broadcast industry, and to discuss other issues of importance to broadcasters. Instead, as we approach the holiday season, I thought that I’d go into another direction. I’ve just returned from the NJ coast, where my family has a home that was partially flooded by Hurricane Sandy. While we had some property damage, it was nothing compared to the destruction I saw in other neighborhoods on the Jersey Shore. Seeing the number of people affected by the storm, and hearing the radio reports from locations up and down the coast where the destruction was far worse, made me think that I should talk a little about the good things that the broadcast and communications industry does, and how those in the industry can help take care of their own.

It has been great to see the many TV networks broadcasting programs with the specific purpose of promoting hurricane relief. And, in a post that we’ll put on the blog later today, the FCC has just made it easier for noncommercial broadcasters to contribute in these. Being on the ground at the NJ shore for a few days, without electricity other than what was provided by a small gas-powered generator, demonstrated to me the power and importance of portable media – including radio. Throughout my weekend at the shore, we could get news and entertainment from a battery-powered radio and the radio in our car. Together with tidbits of news from Facebook posts, a local list-serve and the few other sites that we could get on our mobile phones (for as long as the phones stayed charged) in an area where the mobile networks were often slow due to the high demand for wireless service as the storm had ruined many landline connections  – these were our links to the outside world. Radio kept going, providing updates of all that was going on in the area. One local radio station was particularly noteworthy, as it was operating even though it did not have operating phones or email access. Yet it continued to broadcast, conveying information as to how people could help each other. That information was collected from people posting on the station’s Twitter feed. The station truly showed how convergence of electronic and broadcast media can really work well together. Continue Reading Broadcasters Giving Back – Thoughts on Sandy, Public Service and Communications Charitable Contributions

In these last days before the November election, the third-party ads attacking candidates in various political races don’t show any sign of letting up. In fact, press reports indicate that, if anything, the use of these ads is expanding to states not yet receiving them as, because there is so much money in these organizations and so few days left to spend it, they are throwing money into ads in states where there was thought to be little chance of their candidate prevailing. As we warned in our article about third-party political advertising, stations always have a bit of risk in running these ads, as stations have full discretion as to whether or not these ads air. Unlike candidate ads that cannot be censored, third-party ads are aired at the discretion of the station, and if the station airs an ad that is false, and injurious to a candidate, and the station either knows or should have known that the ad was false yet continues to air it (meeting the "actual malice" standard as applied by the Supreme Court to public figures in NY Times v Sullivan), the station theoretically has liability for the content of that ad.

While stations in political seasons often receive threatening letters about third-party ads from representatives of candidates that are attacked – suggesting that the station continuing to run the ad will lose its license or be sued for defamation – such threats rarely result in real penalties or even subsequent legal actions from the complaining parties. But in a complaint just filed in US District Court in the Eastern District of California, Congressman Jeff Denham has filed suit against the Democratic Congressional Campaign Committee for producing an allegedly defamatory attack ad, and against 5 local television stations that are allegedly running the ad even after Denham’s representatives told the stations that the ad was false and requested that the ad be removed from the air. The Congressman is seeking injunctive relief (meaning that he wants the Court to order that the ad be stopped) and damages as appropriate.Continue Reading California Congressman Files Suit against TV Stations for Alleged Defamation in Third-Party Advertising