On Friday, the FCC issued a reminder to all operators “of fixed-satellite service (FSS) earth stations in the 3.7-4.2 GHz band that were constructed and operational as of April 19, 2018 that the filing window to license or register such earth stations closes on October 17, 2018.” This frequency band is commonly referred to as

Last week, just before Thanksgiving, the FCC released the tentative agenda for its December meeting. From that agenda, it appears that the meeting will be an important one for broadcasters and other media companies. Already, the press has spent incredible amounts of time focusing on one item, referred to as “Restoring Internet Freedom” by the FCC, and “net neutrality” by many other observers. The FCC’s draft of the Order that they will be considering at their December meeting is available here.

The one pure broadcast item on the agenda is the Notice of Proposed Rulemaking, looking to determine if the FCC should amend the cap limiting one TV station owner to stations reaching no more than 39% of the national audience. The FCC asks a series of questions in its draft notice of proposed rulemaking, available here, including whether it has the power to change the cap, or if the power is exclusively that of Congress. The FCC promised to initiate this proceeding when it reinstated the UHF discount (see our articles here and here). In that proceeding, the FCC determined that the UHF discount should not have been abolished without a thorough examination of the national ownership cap – an examination that will be undertaken in this new proceeding if the NPRM is adopted at the December meeting.
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Last year, we wrote about legislation adopted by Congress telling the FAA to adopt rules to require the lighting of towers less than 200 feet tall located in rural areas.  That legislation was designed to protect aircraft used for agricultural purposes like crop-dusting from collisions with such towers.  The law surprised most of the

My law firm has long provided legal advice to companies that operate communications towers, and the lawyers involved in that practice area have alerted me to the following development which will require the marking and lighting of many towers not currently covered by such rules.

Broadcasters and tower companies have long relied on FAA rules that generally don’t require the lighting of towers under 200 feet in height except when these shorter towers may interfere with the flight path of an airport. So the vast majority of these short towers used by broadcasters (sometimes simply for mounting auxiliary antennas) and by other wireless users have not been lit. That apparently will change under the FAA Extension, Safety, and Security Act of 2016, passed by Congress earlier this summer and signed into law on July 15. Under provisions of this act, the FAA is required to adopt rules to require the marking and lighting of freestanding structures with heights of between 50 and 200 feet which are located in rural, undeveloped areas. The act refers to towers that will need to be marked and lit as “covered towers.” The new marking and lighting requirements will apply not just to new towers, but also to existing towers (after a one-year phase in period after the FAA’s new rules become effective).

So what is a “covered tower”? Essentially, the Act sets out the following definitions:

  • Size.  The Act defines “covered towers” as self-standing or guy wire-supported structures:
    • 10 feet or less in diameter;
    • More than 50 and less than 200 feet tall; and
    • With “accessory facilities” mounted with antennas, sensors, cameras, meteorological instruments, or other equipment.
  • Location.
    • To be a “covered tower,” the structure must be located:  (i) outside the boundaries of an incorporated city or town; (ii) on undeveloped land; or (iii) on land used for agricultural purposes.
    • “Undeveloped land” means “a defined geographic area where the [FAA] Administrator determines low-flying aircraft are operated on a routine basis.”
  • Exceptions.  The following are not “covered towers”:
    • Structurers adjacent to a house, barn, electric utility station, or other building;
    • Structures within the curtilage of a farmstead (for those not familiar with land-use terminology, a “curtilage” is the developed area of a farm immediately surrounding a house or other dwelling where residents have an expectation of privacy – it does not include surrounding fields) ;
    • Structures that support electric utility transmission or distribution lines;
    • Wind-powered electrical generators with rotor blade radius exceeding 6 feet; or
    • Street lights erected by government entities.

The new law was apparently adopted at the urging of rural flying groups, including those involved in crop dusting, members of which apparently have high rates of accidents. That is why there is the emphasis on rural towers – and the exclusions for those in developed areas where such planes are unlikely to be flying.
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There were several recent FCC decisions on application processing matters worthy of note. One deals with the processing of commercial applications for FM stations or FM translators that are involved in an auction to resolve disputes, the others with the processing of noncommercial applications (in this case for LPFM stations). None break new ground – but instead they reinforce earlier decisions that some who have been around the broadcast industry had found surprising, so these decisions are worth noting. The commercial case involved the question of whether an applicant needs to receive “reasonable assurance of transmitter site availability” before specifying a transmitter site after a broadcast auction. The noncommercial cases deals with the dismissal of an application because of a change in the control of its board of directors while the application was pending.

The commercial case involved the application for a new FM translator in New Jersey, where a local broadcaster filed a petition asking that the translator application be denied as the applicant had never received permission to specify the tower site, owned by the petitioner, in the “long-form” application filed by the applicant after the applicant prevailed in an auction. After the petition was filed, the applicant amended his application to specify another transmitter site. But, under an old line of cases, the failure to have “reasonable assurance” of a transmitter site was fatal to an application and could not be corrected by a later amendment to an available site. In this week’s decision, the FCC reiterated a decision that it made a few years ago (see, for instance, our article here) concluding that, where an application is granted as a result of an auction, the applicant need not have “reasonable assurance” of its transmitter site at the time it files its “long-form” application (the application that specifies the technical details of the facilities that the applicant intends to use to operate its station).
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At the NAB Convention last week, FCC Chairman Tom Wheeler discussed the timing of the incentive auction and how some of the remaining issues may soon be resolved. One subject of talk in a number of NAB sessions, as well as in the trade publications, has been how the repacking of broadcast television spectrum will proceed after the auction. Even FM broadcasters noted the potential for disruption of their operations as the repacking may affect shared users of broadcast towers, and given that hundreds of TV stations potentially face changing out antennas to operate on new channels in the smaller post-auction television band.

The Chairman made clear that the FCC will be announcing soon, perhaps as early as this week, the “spectrum clearing target” for the auction. In other words, the FCC will be announcing how much of the TV band it intends to try to clear for wireless broadband uses, based on how many TV stations expressed interest in potentially taking a buyout of their spectrum in their commitments filed at the end of last month. After the targets are announced, the FCC will quickly begin the reverse auction, a process where, round by round, the FCC will lower the prices offered to TV stations to abandon their spectrum until the FCC has committed to buy just the right amount of spectrum to meet its clearing targets. Then, it will turn around and repackage and resell that spectrum to wireless companies in the “forward auction.” The Chairman indicated that the clearing target may also signal the answers to many other issues.
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In a decision of the FCC Media Bureau’s Audio Division that may be of interest to the more technically minded broadcasters, the Commission found that an FM station’s supposedly nondirectional FM antenna should be treated as directional. This decision was in response to a complaint from another broadcaster on the same channel, arguing that the broadcaster in question was exceeding its licensed effective radiated power in the direction of the complaining station (which was also the direction of Dallas, toward the more densely populated areas that it was trying to serve). The station that received the objection argued that the apparent effect on its antenna pattern was simply the result of being side-mounted on the broadcast tower that it was using, and this kind of effect was common in the industry and impossible to avoid. Yet, in reviewing the pleadings filed by the parties, the FCC found that the supposedly nondirectional station looked far too much like a directional one, and ordered the licensee to reduce power to keep its ERP (effective radiated power) in the direction where it was greatest to a value within that set out in its license. What impact will this decision have on other FM stations with sidemounted antennas?

First, it appears that the this case is one where, at least according to the FCC decision, the station had specifically designed an optimized pattern that resulted in its significantly exceeding its permitted power in the direction of the complaining station. The FCC found that, in the direction in which its maximum power was being radiated, the station had an effective ERP of 274 kw, far in excess of its licensed 100 kw ERP. The Commission noted that the direction of the highest radiation was actually not in the direction of the station’s city of license. The FCC also found that the ratio of the power in the direction of maximum radiation to the power in the direction of the minimum radiation was 19.18 dB, far exceeding the maximum 15 dB ratio permitted for directional antennas. Finding these great discrepancies in what was supposedly a nondirectional antenna led the FCC to its decision that the antenna was designed to do what it did –radiate more than permitted in the direction of the complaining station. But does this decision have potentially greater impact?
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A flurry of fines against broadcasters have come out of the FCC in the last week.  These fines highlight the scrutiny under which owners of broadcast stations can find themselves should an FCC Field Office inspector knock on their door.  If the FCC pays a visit and finds a violation, a station is often looking at a fine even if it quickly takes corrective action.  Let’s look at some of these fines and the issues raised by each.

First, a Regional Director of the FCC’s Enforcement Bureau yesterday released a $17,000 Forfeiture Order (a notice of a fine) to a Michigan AM broadcaster for having a fence around its tower that had “separated” allowing unfettered access to the site and for missing quarterly issues programs lists in the public file.  The FCC refused to lower the fine, despite the licensee’s arguments that the quarterly issues programs lists were in fact at the station but there was “confusion” as to where they were at the time of the inspection, and its argument that it should not be responsible for the fencing issue as it did not itself own the real estate or the towers.
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