FM Translators and LPFM

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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

The FCC yesterday issued Notices of Apparent Liability to two pirate radio operators that totaled over $600,000, the largest fines ever issued for those operating radio stations without an FCC-issued license.  Both operated in the Boston area.  One was fined $151,005 for operating one station (press release here, the full Notice of Apparent Liability is available here). The second was fined $453,015 for operating three transmitters in the area (press release here, the full NAL is available here).  The FCC noted that these were the maximum fines that they could impose for these violations under current law, and that the fines were the result of several years of investigations and warnings to the operators.

Commissioner O’Rielly, in a separate statement, noted that he wished that the FCC had the authority to impose even higher fines and to proceed more quickly against these operators than allowed under current FCC procedures.  The Commissioner noted that he would be working with Congress to try to get legislation passed to speed the process and raise the penalties against pirate operators. We wrote about one of those legislative proposals here that would impose fines of $100,000 a day up to $2 million against these pirates and speed the process necessary to impose these fines.  The legislation would also allow fines directly against landowners and others enabling the operations of these stations.
Continue Reading FCC Proposes Fines of Over $600,000 to Two Boston-Area Pirate Radio Operators

With more and more stations relying on FM translators to provide local service, a decision released last week emphasizes the importance of following the rules about the operations of these stations.  In the decision, the FCC’s Audio Division proposed to issue a $2,000 fine for an FM translator owner that failed to advise the FCC…

As we noted in our list of November Regulatory dates for broadcasters, at its November 22 meeting, the FCC will be considering the adoption of a Notice of Proposed Rulemaking (see the draft order here) allowing AM stations to go all digital – on a voluntary basis. This Notice follows a Petition for Rulemaking which I filed on behalf of my client Bryan Broadcasting (see our articles here and here). The FCC’s NPRM, if adopted in the form of the draft Notice, suggests that the Commission, subject to a review of comments, is inclined to adopt the proposal to allow AM stations to voluntarily convert to an all-digital operation. While that is the tentative conclusion of the FCC, it does pose numerous questions on which it seeks comments.

The FCC’s questions include inquiries on the technical, programming, and operational aspects of the conversion of an AM station to digital. But the FCC recognizes some of the potential benefits of the all-digital operation and identifies some of the likely early adaptors of any such technology. These early adopters would likely include AM stations that have an FM translator that can continue to provide programming to the public even if some of the public does not have a radio with AM digital reception capabilities. We note that some AM operators with FM translators have already suggested the possibility of surrendering their AM signal, a proposal that has thus far been rejected by the FCC (see our articles here and here). The prospect of an all-digital AM operation would allow these stations to rely on their FM translator for current analog coverage of their markets, while trying to provide a more robust AM signal in the long-term rather than simply abandoning the service altogether. In addition, music stations are much more likely to be interested in an all-digital operation with the promise of higher fidelity than possible through an analog operation. But the FCC asks numerous other questions.
Continue Reading FCC To Consider All-Digital AM at its November Meeting – What Questions are Being Asked?

October is one of the busiest months on the broadcaster’s regulatory calendar. On October 1, EEO Public Inspection file reports are due in the online public file of stations that are part of an Employment Unit with 5 or more full-time employees in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands. An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.

October 1 is also the deadline for license renewal filings by radio stations (including FM translators and LPFM stations) in Florida, Puerto Rico and the Virgin Islands. On the 1st and 16th of the month, stations in those states, and in North and South Carolina, need to run post-filing announcements on the air informing listeners about the filing of their license renewal applications. Pre-filing announcements about the upcoming filing of license renewal applications by radio stations in Alabama and Georgia also are to run on the 1st and 16th. See our post here on the FCC’s reminder about the pre- and post-filing announcements.
Continue Reading October Regulatory Dates for Broadcasters – EEO, License Renewal, Quarterly Issues Programs Lists, the Last Children’s Television Quarterly Report, Repacking Deadlines and More

The FCC’s Notice of Proposed Rulemaking on LPFM and Channel 6 TV issues, which we wrote about here, was published in the Federal Register today. This sets the deadline for comments in this proceeding as October 21, 2019, with reply comments due by November 4. This proceeding looks at issues…