Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
- On October 26, NAB and Xperi Inc. jointly filed a Petition for Rulemaking asking the FCC to amend its rules governing in-band/on-channel (“IBOC”) digital audio broadcasting (Xperi is the parent of IBOC technology developer iBiquity). More specifically, NAB and Xperi request that the FCC (i) adopt an updated formula to determine FM power levels for stations seeking to exceed the currently authorized FM digital Effective Radiated Power (ERP) of -14 dBc; and (ii) commence a rulemaking proceeding on this issue and the one raised in a pending 2019 petition to permit digital FM radio stations to utilize asymmetric sideband power levels without the need for separate or experimental authorization. NAB and Xperi contend that the FCC’s current approach is problematic because it assumes symmetric rather than asymmetric digital sidebands, which eliminates a path for stations to increase power on at least one sideband to improve digital coverage. In addition, NAB and Xperi argue that the existing formula is too restrictive, because it overstates the level of protection analog stations need. NAB and Xperi assert that blanket authorization of asymmetric sidebands and the adoption of a more market-based formula for assessing digital interference risk will encourage greater station adoption of the technology. The FCC has yet to announce comment dates for the NAB/Xperi petition.
- The Commission issued a Memorandum Opinion and Order resolving 32 groups of mutually exclusive applicants for new Noncommercial Educational (NCE) FM stations. These applications were filed in the 2021 window for the filing of applications for new NCE stations in the FM reserved band. This week’s decision goes through an analysis of the point system that the FCC uses to determine the preferred applicant among applications in the same geographic area that cannot all be granted without causing each other destructive interference. The point system analysis looks at factors including the proposed coverage of the applicants, whether an applicant is local and how long it has been established, whether it is part of a statewide network, and whether the applicant has other broadcast interests. The decision announces tentative winners in each of these groups, whose applications will now be subject to “petitions to deny” and other objections before the award of their construction permit is finalized.
- At its October 27 regular monthly open meeting, the FCC adopted without substantive edits, its draft Notice of Proposed Rulemaking (“NPRM”) in which, as we’ve previously reported, it proposes a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) by requiring reporting to the FCC of breaches of any station’s EAS system and the adoption and yearly reporting to the FCC of security protocols to prevent unauthorized breaches. A copy of the “as adopted” NPRM is available here. Comments and reply comments will be due 30 days and 60 days, respectively, after the item’s publication in the Federal Register.
- At the same open meeting, the FCC also adopted a Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze for new or modified applications for existing users of the band. Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. Although the as-adopted item has yet to be released, a press release noting its approval can be found here, and the draft version circulated prior to the meeting can be found here (also see our article here).
- The FCC announced that the agenda for its November 17 open meeting will include consideration of a draft Report and Order (“Draft R&O”) that, if adopted, would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems. Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”). The draft R&O, if adopted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour). For further background regarding this proceeding, see our article here.
- The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree to resolve a student-run noncommercial FM station’s filing of its license renewal application two months late, and the station’s failure to place any issues and programs lists in its online public inspection file. The station demonstrated that its violations were first-time paperwork violations which fell within an FCC policy of affording student-run stations with this kind of violation an opportunity to negotiate a consent decree in which the station agrees to a compliance plan and makes a voluntary contribution to the United States Treasury rather than suffering a more substantial penalty. Under the Consent Decree, the station agreed to, among other things, make a civil penalty payment to the United States Treasury in the amount of $500 and implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and timely filing of renewal applications (for a similar Consent Decree between the Bureau and a second student-run NCE station, go here).
This summary of regulatory news for broadcasters comes from the attorneys at Wilkinson Barker Knauer, LLP in Washington, DC. (https://www.wbklaw.com/).