FM Translators and LPFM

Here are some of the regulatory and legal actions of the last week—and some obligations for the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The comment cycle was set in the FCC’s annual regulatory fee proceeding. On or before June 12, the Commission wants to hear from interested parties about the fees that it proposes to impose on the companies that it regulates – including broadcasters.  The FCC proposes to complete the implementation of its change to computing fees for television stations based on population served rather than on the market in which they operate, a move it began last year (see our Broadcast Law Blog article here on the FCC decision last year to initiate the change in the way TV fees are allocated).  The FCC also asks for ideas about how the Commission can extend fee relief to stations suffering COVID-19-related financial hardship.  Reply comments are due on or before June 29.  (Notice of Proposed Rulemaking)
  • FCC Chairman Ajit Pai and Chris Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, wrote to the nation’s governors asking them to, among other things, declare radio and TV broadcasters as essential to COVID-19 response efforts and to afford broadcasters all appropriate resources and access. (News Release)
  • In a good reminder to broadcasters that transactions involving the sale or transfer of control of a broadcast station must be authorized in advance by the FCC, the Media Bureau entered into a consent decree with two companies that sold an FM station and FM translator without getting approval from the Commission. The parties mistakenly believed filing license renewal applications that reflected the assignment was sufficient approval.  The consent decree includes an $8,000 penalty.  (Consent Decree).  See this article on past cases where the FCC has warned that even transactions among related companies that change the legal form of ownership of a broadcast station without changing the ultimate control need prior FCC approval.
  • The Commission granted approval to Cumulus Media, Inc. to exceed the Commission’s twenty-five percent foreign ownership threshold. The Commission will allow Cumulus to have up to 100 percent aggregate foreign investment in the company, although additional approvals will be needed if any previously unnamed foreign entity acquires 5% or more of the company or if any foreign entity desires to acquire control.  (Declaratory Ruling).  This decision shows the process that the FCC must go through to approve foreign ownership above the 25% threshold and the analysis needed to issue such approvals.  See our articles here and here about the evolving FCC policy in this area.
  • President Trump signed an executive order that seeks to, among other things, address online censorship and rollback certain protections afforded to online platforms, which include social media sites like Twitter, Facebook, Instagram, and YouTube, but which also protect any site that hosts content created by users – which could include the Internet platforms of many broadcasters. Under federal law, Section 230 of the Communications Decency Act, these online platforms generally enjoy legal immunity for what users post on their platforms.  The President directed the Department of Commerce to ask the FCC to open a rulemaking to review this immunity and asked the FTC to review whether platforms were adhering to their terms of use when commenting on or limiting third-party content.  Other government entities, including state attorneys general and the Department of Justice, were also asked to review online platforms.  For his part, FCC Chairman Ajit Pai said “This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce.”  (Executive Order).  Watch for an article on the Broadcast Law Blog this coming week on implications of this order for broadcasters and other media companies.
  • Anyone looking to hand deliver documents to the FCC needs to learn a new address, and it is not, as you might expect, the address of the FCC’s future headquarters. Deliveries by hand must now be brought to 9050 Junction Drive, Annapolis Junction, MD 20701.  The address change is to enhance security screening and is part of winding down operations at the current 12th Street headquarters.  (Order)


Continue Reading This Week at the FCC for Broadcasters: May 23, 2020 to May 29, 2020

With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits.  As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations.  By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications.  On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.
Continue Reading June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Description

Comments on the proposal of GeoBroadcast Solutions to allow FM boosters to originate limited amounts of programming different from that carried on their primary stations were due to be filed by this past Monday.  We wrote about the GeoBroadcast proposal for “zonecastinghere. The comments as filed at the FCC fell principally into three categories.  GeoBroadcast Solutions and its supporters argued that the FCC should move forward with the limited rule changes that it seeks, changing the FM booster rules from requiring 100% duplication of the primary station to one which only requires substantial duplication of the main station – thus allowing for limited inserts of localized content including localized news, advertising and emergency information.  A second set of comments asked whether the technology had really moved forward sufficiently to warrant a notice of proposed rulemaking now – particularly as the system had not yet been fully tested for digital broadcast operations (commonly referred to as “HD Radio”).  Finally, there were proposals looking to expand the scope of the proceeding beyond GeoBroadcast’s limited technical proposal, to allow for other systems to provide the service and even to expand the proposal to also allow FM translators to originate programming.  Let’s look at each of these sets of comments.

Those supporting the GeoBroadcast proposal covered both the technology and business/operational aspects of the proposal.  Comments by GeoBroadcast’s engineer and the GatesAir, Inc., which developed the MaxxCasting technology for boosters to minimize interference between the boosters and their primary station, argued that the technology already works for analog broadcasts and was promising for HD Radio operations.  Support for the business case came from advocates for minority organizations (arguing that the technology would allow better targeting of these audiences), media brokers (arguing that the value of stations would increase), ad buyers (looking at the targeting prospects of the technology) and emergency communications experts (looking at the ability to target emergency information).
Continue Reading Looking at the Comments on FM “Zonecasting” – What’s Next for This Proposal?

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant

Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times.  There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred.  So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues.  You check out that webinar presented to broadcasters across the country, available by clicking on this link.  And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :


Continue Reading This Week at the FCC: April 18, 2020 to April 24, 2020

In the last few weeks, both on the radio and TV side of the broadcasting house, significant actions have been taken to potentially expand the use of zoned broadcasting to allow broadcasters to better target their audience with programming and advertisements.  For TV, that is the proposed increase in use of distributed transmission systems, about which we will write in another article.  For radio, a petition for rulemaking has been filed by a company called GeoBroadcast Solutions, proposing to use FM boosters to be able to provide such targeted programming within an FM station’s service area.  The FCC last week issued a public notice asking for initial comments on the proposal – and those comments are due by May 4.

The FM zonecasting petition calls for a change in Commission rules that currently require FM boosters to simulcast 100% of the programming from their primary station.  The proposed change in the rules would instead say that FM boosters would have to substantially duplicate the programming of the primary station but would allow commercials, news reports or other short content to be dropped into the programming on a booster that would be different than that programming on the main station. The proposal suggests that this would allow more targeted advertising within a market as well as more targeted news and information (including emergency information) within the market.
Continue Reading FCC Asked to Consider “Zonecasting” for FM Stations – Initial Comments Due May 4

The FCC last week released its tentative agenda for its April 23 open meeting.  For broadcasters, that meeting will include consideration of the adoption of a Notice of Proposed Rulemaking (draft NPRM here) looking to broaden obligations for the audio description of television programming (referred to as the Video Description proceeding) – which we will write about in more detail later.  The agenda also includes a Report and Order modifying rules relating to Low Power FM stations, which also addresses the protection of TV channel 6 stations by FM stations (full-power or LPFM) operating in the portion of the FM band reserved for use by noncommercial stations.  The FCC’s draft order in this proceeding is here.  We initially wrote here about these FCC’s proposals when the Notice of Proposed Rulemaking in the proceeding was adopted last year. Today, we will look at how the FCC has tentatively decided to resolve some of the issues.

One of the most controversial issues was the proposal to allow LPFM stations to operate with a directional antenna.  While some directional operations had been approved by waiver in the past, there was some fear that allowing these antennas more broadly could create the potential for more interference to full-power stations.  As a directional antenna requires greater care in installation and maintenance to ensure that it works as designed, some feared that LPFM operators, usually community groups often without a broadcast background or substantial resources, would not be able to properly operate such facilities.  The FCC has tentatively decided to allow use of directional antenna by LPFM stations. However, it will require LPFM stations installing such antennas to conduct proof of performance measurements to assure that the antenna is operating as designed.  The cost of such antennas, the limited situations in which such antennas will be needed (principally when protecting translators and in border areas), and the additional cost of the proof of performance should, in the FCC’s opinion, help to limit their use to entities that can afford to maintain them properly.
Continue Reading FCC April Meeting to Consider LPFM and Video Captioning – Looking at the LPFM Proposed Order (Including Interference Protections for TV Channel 6)

The PIRATE Act, to crack down on pirate radio, passed the Senate this week after having passed in the House of Representatives last year.  It now goes to the President for signature.  We’ve written about this legislation several times before (see for instance, our articles here and here).  In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.

The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000.  Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.”  This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here).  In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine).  The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts. 
Continue Reading PIRATE Act Passes Senate, and Now on to the President for Signature – Provides for Big Fines and Enforcement Sweeps in Big Markets

Every noncommercial station, including LPFMs, that accepts underwriting announcements should be concerned about making sure that the announcements meet FCC guidelines and remain truly noncommercial.  An FCC Order was released yesterday announcing a consent decree entered into between the University of Arkansas and the FCC’s Enforcement Bureau.  The Order illustrates what can happen if noncommercial stations are not careful – as the University agreed to pay what is essentially a fine of $76,000 and to adopt a compliance plan that forces the University to carefully monitor underwriting announcements for the next five years, as well as engaging in programs to educate and monitor its staff to insure future compliance.  The FCC Order announcing the consent decree should be carefully reviewed by all noncommercial broadcasters to see what can happen if they do not comply with the rules.

The FCC’s Order itself does not go into detail about the alleged instances of where the station exceeded what is permitted by the rules.  But the Order does enumerate the policies that restrict underwriting in the following statement:

such announcements may not contain comparative or qualitative descriptions; price information (sales or discounts); calls to action; inducements to buy, sell, rent, or lease; or excessively detailed “menu listings” of services offered by the entity. Although the Commission has not adopted any quantitative guidelines on underwriting announcements, it has found that the longer the announcement, the more likely it is to contain material that is inconsistent with their “identification only” purpose.

While most noncommercial broadcasters are familiar with the obligations to avoid calls to action, qualitative claims, and price and discount information, some of the more subjective criteria listed in the Order may not be as familiar.  The FCC notes that underwriting announcements, while they can generally mention the services provided by an underwriter, they should not have an excessively detailed list of those services.  In addition, the announcements should not be of excessive length, as they are likely to sound more commercial – going beyond a mere identification of the sponsor.  See our article here for another case where this issue arose.
Continue Reading University Pays $76,000 Fine to Settle Complaint About Underwriting Announcements on Noncommercial Station that Went Too Far

Last week, the FCC adopted an order making numerous changes to its processes for selecting winning applicants among mutually-exclusive applicants for new noncommercial broadcast stations, including noncommercial, reserved band full power FM stations and LPFMs. Applicants are “mutually exclusive” when their technical proposals are in conflict – meaning that if one is granted it would create interference to the other so that the other cannot also be allowed to operate. The changes adopted by the FCC, which we wrote about when first proposed here, affect not only the process of applying for new noncommercial stations and the system for resolving conflicts, but also address the holding period for new stations once construction permits are granted, and the length of permits for LPFM stations.

In cases involving mutually exclusive applications for new noncommercial stations, the FCC uses a “points system” to determine which of the mutually-exclusive applicants should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding preferences on factors such as whether they have fewer interests in other broadcast facilities, whether they are local organizations, and whether they are part of state-wide networks.
Continue Reading FCC Adopts Changes to Rules for New Noncommercial FM and LPFM Stations – Changing Application Processing Procedures and Holding Periods