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We wrote last week about the FCC’s determination of which applicants are to be preferred in several groups of mutually exclusive applications for new Low Power FM stations.  We warned full-power FM broadcasters to review the preferred applicants as broadcasters have 30 days from last week’s public notice to file petitions to deny against such LPFM applications citing interference concerns or other issues with those applications.  Now, a number of additional LPFM applications have been found by the FCC to be ready for grant, and broadcasters need to review these applications – and be prepared to review a steady stream of these applications, all with different petition to deny deadlines, over the next few months.  Where did these applications come from?

 In the rules for the LPFM window, the FCC decided that once it made determinations about tentative winners in mutually exclusive groups of applications, all LPFM applicants not selected (or those in ties) could file amendments to their applications seeking new channels – including major changes specifying brand new channels at different sites having no relation to the original application but for meeting the general requirements that the controlling parties in these applicants be local to the service area that they propose to serve.  As these amendments are processed on a first-come, first-serve basis, many LPFM applicants were apparently ready to go with amendments as soon as the list of tentative winners was released.  And these amendments have started to come out on public notices, announcing 30 day petition to deny deadlines (see, for instance, this list of Broadcast Applications released yesterday by the FCC, at pages 8-11).
Continue Reading More LPFM Applications for Broadcasters to Review to Assess Potential Interference Issues, and New Petition to Deny Deadlines

More LPFMs are on the way, and broadcasters have 30 days to file any objections to the coming new stations.  In an order just released by the FCC, the FCC applied its “point system” to select the winning applicant in groups of mutually exclusive applications filed in the recent LPFM window in Western states (as far east as Nebraska and Kansas).  Future selectees in other parts of the country will come in later public notices.  This notice starts the clock on several dates – including a 30 day petition to deny period where full-power stations can raise issues of interference and other issues against applicants, and applicants can raise issues against each other.  The notice also sets a 90 day window for LPFM applicants whose applications were under consideration in this notice to file applications to make changes in their applications – including major changes to new frequencies or different transmitter sites.

The FCC’s notice consists of three documents.  First, there is a description of the action taken by the FCC setting out how the points were awarded to applicants, the options now available to the applicants based on the point system determinations, and the deadlines for the Petitions.  Next, there is a list of the applications that were considered, highlighting the winning applicant in each group of mutually exclusive applicants (or the winning applicants if there was a tie under the point system analysis).  The third document lists all of the applicants on the list who requested waivers of the spacing requirements to full-power stations on second-adjacent channels.  Licensees of full-power stations serving areas near these proposed stations should review these applications carefully.
Continue Reading FCC Applies Point System to Resolve Conflicts Between Mutually Exclusive LPFM Applications – Sets Deadlines for Petitions to Deny and Amendments to Applications

In November, the FCC changed its policy regarding the foreign ownership of broadcast stations.  In its decision, about which we wrote here, it agreed to entertain applications seeking “alien ownership” exceeding the 25% limit for foreign ownership of broadcast stations that had previously been in place.  In the modern communications era, with its diversity of media outlets, the Commission determined that the risk of increased foreign ownership was outweighed by the potential for new entrants into the broadcast industry, backed by new sources of capital from outside of the United States.  The FCC did not adopt any blanket rules for permitting higher levels of alien ownership, but instead agreed to consider specific requests for a declaratory ruling on a case-by-case basis to show that foreign ownership of a broadcast station in excess of 25% was not contrary to the public interest.  Despite the invitation to file such requests, as far as we know, none have been filed – until now, and that comes from what is perhaps an unexpected source – Pandora, which is best known as an Internet radio operator.

As we wrote several months ago, Pandora has sought to acquire an FM radio station that operates in the Rapid City, South Dakota radio market.  Its application to acquire the station was opposed by ASCAP, who feared that Pandora would use its status as a broadcaster to ask for broadcaster rates negotiated by the Radio Music Licensing Committee (RMLC) for the public performance of ASCAP music.  ASCAP based its opposition principally on the contention that Pandora had not proved that less than 25% of its stock was beneficially owned or controlled by foreign entities.  Despite Pandora being a company founded in the US by US citizens, headquartered and operating almost exclusively in the US, and traded on the US stock exchanges, ASCAP contended that Pandora had not established that its ownership of a broadcast station would not violate the alien ownership rules.  How could they make such an argument?
Continue Reading Pandora Files First Petition for Declaratory Ruling Under FCC’s Liberalized Foreign Ownership Rules for Broadcast Stations

The FCC yesterday issued a Public Notice announcing a new round of EEO audits.  Letters to about 180 radio stations went out asking for evidence of their compliance with the FCC’s EEO rules.  The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. The form audit letter was also released by the FCC and attached to the Public Notice. Responses from the audited stations are due to be filed at the FCC by July 25. Licensees should carefully review the list of affected stations contained in the Public Notice to see if any of their stations are on the list. 

The audit letter requires all stations with 5 or more full-time (30 or more hours per week) employees to provide information about their EEO programs.  Even stations with fewer than 5 full-time employees need to report the names and positions of their employees, and provide any information about law suits, EEOC complaints or similar employment actions brought as a result of  equal employment or discrimination matters.  The requirements for stations with 5 or more employees are more significant.
Continue Reading Another Round of EEO Audits of Radio Stations Announced by the FCC

On June 6, FCC application fees are going up by 8%.  The new fees were published in the Federal Register yesterday, here.  This Federal Register publication sets out all of the new fees.  To make sure that your applications are processed on a timely basis, be sure to pay the proper higher fees, starting on June 6. The old fees have been in place since 2009 (see our report here), so remember to adjust to the new fees.  The fees for the most common broadcast services are set out below:
Continue Reading FCC Application Fees Going Up By 8% – Effective June 6, 2014

This blog usually covers legal and policy issues, not product reviews.  And this article will at least try to relate policy decisions to a product review, but mostly it’s to share a cool new feature on my phone.  To explain, I am one of those holdouts still using a Blackberry.  In dealing with new media clients, I almost feel like I have to make excuses for still using a Blackberry, but as an attorney who travels frequently and writes many emails from the road, the physical keyboard really makes a difference – at least to me.  I can at least say that I did upgrade to the Q10 last year – the Blackberry that has the physical keyboard, but also has a new faster operating system that relies much more on touch commands for everything but the actual typing.  This week, I received what I consider a gift from Blackberry, as I’m also a big radio fan.  While I listen to Internet radio and use digital music services, I also still really enjoy listening to over-the-air radio.  This week, my Blackberry Q10 received an upgrade to its operating system and, with that upgrade, the phone’s FM chip was activated.  Now, my ATT phone gets over-the-air radio – becoming the modern equivalent to the transistor radio – a radio in my pocket at all times.  Of course, being a lawyer, the whole question of activating FM chips in mobile phones brings up policy issues, as it has been in and out of many policy arguments over the last few years.

First, a qualification must be made for international readers of this blog.  The question of an active FM chip in a mobile phone is an issue in the US, but not in many other countries of the world, where FM reception on mobile phones has been standard for many years.  In the US, that has not been the case.  While the chips are built into most phones, they are not activated.  Some suggest that the chips are not activated because the carriers want to encourage data usage through the use of online audio, but the carriers simply say that there is no consumer demand for the activation of the feature.  No matter what the reason, the chip has not been activated in most US phones, and thus policy issues from time to time arise as to whether it’s activation should be mandated or encouraged by government action.
Continue Reading Activating the FM Chip in Mobile Phones – As Blackberry Steps Up, a Policy and Product Review

The text of the FCC’s decision on the attribution of Joint Sales Agreements for multiple ownership purposes, and the termination of the 2010 Quadrennial Review of the ownership rules and the start of the 2014 Quadrennial Review, has now been released by the FCC.  In a slim 211 pages of text, plus another 24 pages of concurring and dissenting opinions, there is more than enough for broadcasters, lawyers and regulators to digest for weeks.  The Order addresses in detail the matters that had already been made public – the attribution of TV JSAs, the further examination of TV shared Services Agreements, and tentative decisions to not fundamentally change any of the Commission’s other ownership rules (with the possible exception of a favorable inclination to look at elimination of the radio-newspaper cross-ownership)(see our summary here).  But there are many details to be examined as to how the Commission reached the decisions that it did and the nuances of the decisions that were made (e.g. the waiver policy that would allow some JSAs to remain in place – the Commission’s decision does not provide much detail – essentially saying that they will grant waivers to deserving JSAs that serve the public interest, but providing little detailed guidance as to what would make a good waiver case, except to say that temporary or short-term waivers were better than long-term ones, and that ones where there was little sharing of other services are better than ones where there is more sharing).  We will cover all of these areas in more detail over the next few days.

But there were some interesting and less expected nuggets that popped out in a first read of the Order, and have not been much covered elsewhere.  For TV, these include the tentative decision to replace the TV Grade B contour with the digital Noise Limited Service Contour for determining whether an individual or entity can own two TV stations in the same market.  Instead of allowing ownership where the Grade B contours do not overlap, the Commission proposes to allow that ownership where the NLSC do not overlap, and to grandfather any combinations that would be affected by this rule change.  Similar small but significant issues were also raised for radio.
Continue Reading The Text of the FCC’s Order on JSAs and Other Broadcast Ownership Issues is Released – Part One, Hidden Nuggets on TV and Radio Market Definitions

It is the beginning of another year – and a time to look ahead to look ahead at what 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 Washington’s alphabet soup of regulatory agencies in the near future.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

Each January, we publish a list of issues for the coming year, and it is not always the case that these issues make it to the top of various piles (literal or figurative) that sit in various offices at the FCC.  As set forth below, there are a number of FCC proceedings that remain open, and could be resolved this year.  But just as often, a good number of these issues sit unresolved to be included, once again, on our list of issues for next year.  While some issues are almost guaranteed to be considered, others are a crap shoot as to whether they will in fact bubble up to the top of the FCC’s long list of pending items. So this list should not be seen as a definitive list of what will be considered by the FCC this year, but instead as an alert as to what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.
Continue Reading What’s Up in Washington For Broadcasters in 2014? — Part 1, FCC Issues

The FCC this week announced groups of mutually exclusive (“MX”) LPFM applications, i.e. those groups where applications are for the same or adjacent channels where the grant of one application in the group would preclude other applications in that same group.  The Public Notice is here, and the list of MX groups is here.  The importance of the FCC’s announcement for LPFM applicants is that it gives the applicants 60 days, until February 14, 2014, to amend their applications to make minor changes that will resolve the MX situations (e.g. moving to an adjacent or IF channel or making a slight site change that will eliminate the interference with the other applications that would result if the applications were granted as they now stand). 

Applications left in the MX group at the end of the 60 day period will be subject to a “point system” analysis, granting the application which has the highest number of points in the FCC’s system for deciding between mutually exclusive applicants (giving points for the following:

  • (1) having an established community presence of at least two years;
  • (2) pledging to originate locally at least eight hours of programming per day;
  • (3) pledging to maintain a publicly accessible main studio that has local program origination capability;
  • (4) certifying that you qualify for a point under both the local program origination and the main studio criteria;
  • (5) certifying that neither you nor any party to your application has an attributable interest in another broadcast station; and
  • (6) being a Tribal Applicant proposing to locate your transmitting antenna site on your Tribal Lands).

Note that no amendment that is filed now can improve an applicants comparative position under these point system criteria.  Applicants are locked into the points that they claimed when they initially filed their applications. 
Continue Reading FCC Announces MX Groups for LPFM Applications – Amendments Possible, So Full-Power FMs Should be Watchful

The LPFM applications are in, and counted, and the FCC is actively processing them.  A recent public notice from the FCC about the processing of these applications puts FM broadcasters on notice that they should be checking what was filed in their market areas to make sure that there are no interference issues for their full-power stations or existing translators  The FCC’s public notice about the processing of LPFM applications is available here http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-13-2308A1.pdf

 As you will see, the FCC is first looking to identify “singleton” applications, i.e. those that are not subject to any competing applications.  Once the FCC determines that an application is a singleton, its status in the FCC database will change from the application simply having been “received” to it having been “accepted for filing.”   The acceptance for filing triggers a 30 day petition to deny period, during which broadcasters can object to potential interference from the LPFM or for other violations of the FCC rules on LPFM.  Broadcasters should be looking at local applications, for issues like second-adjacent channel waivers or other issues so that objections can be filed during the petition to deny window against those applications that might be troublesome. 
Continue Reading FCC Processing of LPFM Applications Continues – FM Broadcasters Beware of Potential Interference Issues