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The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16…

Yesterday, we wrote about a case involving an applicant for a new commercial FM station, where the FCC clarified its policies on reasonable assurance of transmitter site availability – holding that an applicant in an auction process can amend to a new site if it is found that its originally specified site is not available for its use.  That policy does not apply to applications for LPFM stations or noncommercial FM stations, which are not settled by an auction but instead through the application of a point system. That point system analysis can be preempted in a proceeding between mutually exclusive applicants for the same noncommercial radio station if one applicant is preferred on 307(b) grounds  (Section 307b of the Communications Act being a section that requires that the Commission make a “fair, efficient and equitable” distribution of broadcast service, which the FCC has interpreted to mean that it must evaluate the coverage area of proposed new stations and determine if any would bring new services to underserved populations so that the new service, in and of itself, is in the public interest and outweighs any point system analysis).  A Court of Appeals decision released last week clarified the application of the 307(b) policy. 

The noncommercial case involved an appeal of a “points system” grant favoring one applicant over another.  The loser complained that it would provide service to a substantially greater population, including a great number of people who did not currently receive two or fewer noncommercial services.  Under the FCC’s policies, an applicant will receive a 307(b) preference that will preempt a points system analysis, but only if it meets certain specific coverage requirements (see our discussion of the FCC’s analysis of which competing applicant for the same noncommercial channel will be preferred here).  In this case, the requirement at the center of the argument was one that says that, to be qualified for a 307(b) preference, the applicant’s proposed new station must propose a coverage area providing service to at least 2,000 people that don’t already receive two noncommercial radio services, and the population in the area currently receiving fewer than two noncommercial services must constitute at least 10% of the people to be served by the applicant.  Here, the applicant appealing its loss covered over 28,000 people who received only one noncommercial service, while the winning applicant would provide a second noncommercial service to fewer than 5,000 people.  But, as the area receiving only one noncommercial service constituted less than 10% of each applicant’s service area (about 9.6% of the loser’s coverage and about 5.5% of the winner’s), no applicant was preferred on the 307(b) criteria, and the winner was preferred on other comparative criteria.
Continue Reading FCC Standards for Comparing Service by Mutually Exclusive Applicants for New Noncommercial Radio Stations Clarified by Court of Appeals

Last week, there were two decisions that clarified FCC processing policies for new broadcast stations – one dealing with applications for commercial stations, and the other with applications for noncommercial FM stations.  The commercial case made clear that an applicant for a new FM station in the auction process need not have reasonable assurance of the transmitter site that it specifies in its application at the time it files the application, as long as it amends to an available site before the application is granted.  The second, a decision of the US Court of Appeals, upholds the grant of a new noncommercial FM station as a result of a point system analysis, and clarifies the 307(b) preference and when it can be decisive in noncommercial comparative cases.

In the commercial case, a bidder who lost a broadcast auction complained to the FCC that the winning bidder for a new FM station did not have “reasonable assurance” of the availability of the transmitter site that it specified after it filed its “long-form application” on Form 301 after being the successful bidder in an FCC auction for the new channel.  The long-form application, filed shortly after the conclusion of a broadcast auction, is supposed to contain the complete engineering showing of the applicant specifying the technical facilities for the new station that it plans to construct.  The facilities that are specified in this application are reviewed by the FCC staff to make sure that they comply with all FCC technical rules. In this case, the tower site proposed in the Form 301 was apparently owned by one of the owners of the petitioner, and the high bidder did not approach the tower owner for permission to specify her site in the application.  Nevertheless, the FCC agreed to grant the application after the winning applicant amended its application to specify an available site. So what was the issue?
Continue Reading Two Decisions Clarifying the Processing of FCC Applications for New Commercial and Noncommercial Broadcast Stations – Auction Applications and Reasonable Assurance of Transmitter Site Availability

Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
Continue Reading What Washington Has in Store for Broadcasters in 2015 – Part 1, What’s Up at the FCC

Right before Christmas, the FCC’s Media Bureau released a Public Notice announcing that they have reviewed the final set of mutually exclusive LPFM applications.  “Mutually exclusive applications” are applications for stations in the same geographic area which cannot all be granted without creating interference issues. The notice identifies tentative winners selected by the “point system” that the FCC uses to decide between mutually exclusive applicants (or applicants headed for shared time arrangements where they remained tied after the FCC’s “point system” analysis).  The Public Notice lists 96 mutually exclusive groups of LPFM applicants in the Southeast and South Central states.  We wrote in July about a group of Western applications that had already been considered by the FCC, and in September about another group of LPFM applications in the Northeast and North Central states.  So this current notice should be the final major list of LPFM applications that need to be processed by the FCC.  The issuance of this notice gives broadcasters and other interested parties 30 days to file any objections to these proposed new stations.  In addition, applicants can raise issues against each other.  Objections are due on January 22. 

The notice also sets a 90 day window for LPFM applicants whose applications are listed in this notice to file applications to make changes in their applications – including major changes to new frequencies or different transmitter sites.  Applicants who were not the tentative winners in the FCC’s consideration of the mutually exclusive groups have another shot to get FCC permission to construct a new LPFM station, if they can find an open frequency in the next 90 days.  Those amendments are due by March 23, but are often filed earlier as they are treated by the FCC on a first come, first served basis.  Broadcasters need to watch these amendments, as they could pose interference issues for full-power FM stations on channels not previously proposed for use by any LPFM applicant. 
Continue Reading FCC Issues Public Notice on Mutually Exclusive LPFM Applications in the Southeast US – Deadlines for Petitions to Deny and Amendments to Applications

We recently wrote about the proposed changes in the FCC’s rules about station-conducted contests, here.  The FCC has proposed that much of the required disclosure about the material terms of these contests be allowed to be conducted online, rather than having to be announced on-air often enough so that listeners to the station are …

The online public inspection file for radio is moving closer to reality at an unusually fast pace.  Yesterday, the FCC issued a Notice of Proposed Rulemaking, seeking to expand the online public file requirements that now apply to broadcast TV stations to radio (see our summary of the obligations here, and a presentation that we did on those requirements, here).  The rulemaking proposal also looks to adopt online public file obligations for cable systems, satellite television systems, and Sirius XM.  Comments will be due 30 days after the NPRM is published in the Federal Register. 

The NPRM proposes a phased-in approach to these obligations for radio.  It would first require the online public files only for stations in the top 50 Nielsen (formerly Arbitron) markets which employ five or more full-time employees.  The Commission chose these stations to begin the process, reasoning that they are subject to the EEO rules and would thus have EEO reporting obligations (which are already online for most station, albeit on their own station websites), and would have more resources to meet any obligation that the rule imposes.  The Top 50 markets were also the starting point for the roll out of these obligations for TV stations, and are likely also in areas where there is significant political broadcasting activity.  The NPRM asks whether a six month period to implement the new requirements from the effective date of any set of new rules would be appropriate.
Continue Reading Online Public File for Radio – and Satellite and Cable – Moves Closer to Reality – FCC Issues Formal Notice of Proposed Rulemaking

The FCC issued a Forfeiture Order this week, fining a station $7000 for violations of the main studio rule. The facts of the case were set out in a Notice of Apparent Liability issued back in February, where the licensee had claimed that its studio was in a location that was shared with another broadcaster …

In a case decided last week, the FCC decided to clarify its policies on typos in FCC applications for radio stations.  While one might not think that a typo is such a big idea, in connection with FCC application filing windows, when multiple applicants may be seeking the same frequency or channel in …

In 2011, licensees of FM translators who wanted to move those translators to areas where there was a need for their service thought that the FCC had done a great thing by authorizing the use of the “Mattoon” waiver (see our article here).  The Mattoon waiver allowed the processing of an FCC application to move the location of a translator as a minor change (meaning that it could be filed at any time, rather than having to wait for a window for the filing of major changes and new translator applications – the last of which opened in 2003) if the current and proposed interfering and protected contours of the stations overlapped.  Without the waiver, the rules deem a minor change to occur only when the protected 60 dbu contour of the station from the proposed and exiting sites overlap, allowing much smaller moves. But, as we have written before, the FCC now seems to be backing off the use of these waivers, and two recent decisions raise the question of whether the policy is doomed (as the Commission proposed in its AM improvement proposals, which we summarized here).

The use of the waiver in many cases eliminated the need for multiple “hops” of translators to get them from existing locations to the sites at which a broadcaster wanted to use them to provide service.  These hops would move the translator from the locations at which it was licensed to a new site, only to file another application as soon as the initial move was granted to move the translator yet again to get them to the location where a broadcaster wanted to use them to provide service.  In some cases, multiple intermediate hops were necessary to move the translator to the site at which its use was ultimately desired.  The Mattoon waiver allowed many site moves to be accomplished through a single application rather than requiring multiple hops, each of which cost the broadcaster time and money in filing multiple applications and in actually building the translator at multiple sites, and also saved the FCC the time and effort to process each of the applications necessary to approve these intermediate stops for the translator. 
Continue Reading The End of the Mattoon Waiver? – FCC Decisions Confirming Its Use Only for the Rebroadcast of AM Stations and Prohibiting Intermediate Site Changes