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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A few weeks ago, we wrote about several recent cases where tower owners were fined for not having their towers lights working in the manner that was required by their licenses.  In another case released this week, the FCC’s Enforcement Bureau decided that a $20,000 fine was appropriate for a tower owner in Alaska

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?
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There are times that the FCC, though its Daily Releases, appears to be trying to make a point.  And Friday was one of those days, when it simultaneously released four separate orders, each fining the owner of a tower used for communications purposes for failures to maintain the required tower lights on those towers.  Three of the fines were for $8000, and one for $6000, and three were against broadcasters and one was against a non-broadcast licensee.  The facts of each of the cases are slightly different – but together they make clear that the FCC demands that tower lights be maintained in operating condition, and will take few excuses for the failure of those lights to remain operational during required operating hours.

Two of the cases are particularly instructive as to the strict liability of the tower owner.  In one case, the owner of the tower argued that it should not be fined, as it maintained a system to monitor tower lights, a system that had just been inspected and found to be in operating condition a few days before the FCC inspection which discovered that a light was out on the tower.  Such monitoring systems are permitted by the rules as a substitute for daily visual monitoring of a tower’s lights.  However, the FCC found that the station was not being fined for the failure to monitor the tower lights (as that obligation was met through the automatic monitoring system), but instead for the failure of the lights to be lit –a strict liability standard seems to be used to justify the fine.
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On September 26, the FCC will hold its next open meeting and, according to a Public Notice released Friday, will consider several issues important to different parts of the broadcast industry. For television broadcasters, there will be concerns about the proposal to do away with the “UHF discount,” which gives UHF stations a 50% discount in determining the number of households they reach when determining an owner’s compliance with the limitation that prevents any one company from owning television stations that reach more than 39% of the US television households. For radio, the FCC will be getting a report on the preparations for the upcoming LPFM window, allowing applications nationwide for new LPFM stations. That window, as we have written before, is to open from October 15-29. Finally, the FCC will be looking at modifications to its Antenna Structure Registration process – which could be important to all tower owners.

As the UHF discount issue is to be considered by the adoption of a Notice of Proposed Rulemaking, it is no doubt the more controversial of the broadcast issues to be discussed at the meeting. The discount was adopted by the FCC in analog days, when UHF broadcasters faced significant disadvantages. Analog UHF signals (TV channels 14 and above) simply did not travel as far as VHF signals, were less likely to penetrate buildings (especially as many over-the-air antennas were designed for VHF reception), and were far more costly than VHF operations (as VHF transmitters operated at far lower power levels than do transmitters for UHF operations). But, in the digital world, broadcasters found that the world had been turned on its end – with UHF signals being far preferable, as the VHF digital signal was found to be far more susceptible to interference, especially in urban areas. In the less forgiving digital environment (where a signal is either there or not, instead of the degraded "snowy" picture that you could get in the analog world), the UHF signal is generally preferred – despite the higher power costs and the fact that the signals still don’t travel as far.


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The rules for determining when construction of a new tower may cause a distortion of the pattern of a nearby AM station, and when the party building the new tower has a financial obligation to remedy any interference caused, were clarified by the Commission in an order released late last week. The order makes clear that all towers used by FCC licensees must abide by these rules, putting into formal rules the existing general obligation that all “newcomers” that create interference to an existing licensee must be responsible for rectifying that interference. There was apparently some question about the duty of newcomers to rectify issues that they cause to AM stations, as the rules for all non-broadcast services did not explicitly include language embodying that concept.

The Commission also made clear that the distortion of an AM stations pattern would be measured by the “moment method,” a computer program that will determine if there is a disruption to the pattern, rather than by actual field strength measurements. Doing a “proof of performance” of an AM station can be a long and costly process. Thus the FCC several years ago authorized the moment method of modeling AM patterns (see our article here). In this order, the Commission extends the reliance on this method to the resolution of complaints about new tower construction interfering with existing AM patterns. Other specifics of the order are set forth below.


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Failing to properly maintain a communications tower can be expensive, as a number of FCC decisions released in the last few days demonstrate. In several decisions reached in the last week, the Commission faulted tower owners for all sorts of problems – tower lights being out without letting the FAA know, faded paint, missing fencing around an AM tower, tower registrations that had not been updated after a sale, and the failure to post the tower Antenna Survey Registration Number (“ASRN”) at the base of the tower so that the FCC could identify the tower owner. These cases provide a survey of the many issues that tower owners can have – ones that can bring big FCC fines.

In the case with the largest proposed fine – $25,000 – the FCC faulted a tower owner for having a tower with faded paint and no posted ASRN that was visible at the base of the tower. In addition, the FCC tower registration had not been updated to reflect the name of the current tower owner – even though the owner had bought the tower 10 years before. After an FCC inspection identifying the issues, the licensee promised that they would be remedied. But, according to the decision, two more inspections were made by FCC inspectors within 15 months of the first inspection, and the problems all remained. The failure to correct the errors after being repeatedly warned brought about a $10,000 increase in the fine from what would be normally warrant a penalty of approximately $15,000. Clearly, if the FCC tells you something is wrong – fix it, or face increased liability for the problems. The FCC does not like to be ignored.


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Fines for broadcast station tower owners who fail to maintain the required lighting on their tower are not unusual. But in a decision last week, the FCC made clear that, even if the licensee of a broadcast station is not the tower owner, it still has the responsibility for dealing with tower lights that are out, even if the tower owner does not. The failure of the licensee to maintain the tower lights, and other related issues, resulted in an $11,000 fine issued by the FCC.

The case was unusual in that the broadcast licensee, and the company from which it bought the station, were arguing over who owned the tower – not contending that the each owned the tower, but instead each pointing to the other as the one with the responsibility for the maintenance of the tower. The former owner of the station maintained ownership of the underlying land, but claimed that the tower was conveyed to the new station owner. The licensee claimed that the tower was still owned by the former owner, and that former owner should be responsible for the tower lights. The FCC reviewed the contract between the two parties, seemed to conclude that the licensee had in fact acquired the tower, but said that the final determination on that issue was one for local courts, not the FCC.  But even if the licensee did not own the tower, it still had the responsibility for the tower as licensees have the responsibility to insure that the tower lighting requirements in their licenses are met. This obligation is set out in Section 17.6 of the Commission’s rules and in various policy statements.  Thus, no matter who owned the tower, the licensee was still subject to the fine for the lights not being operational.


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