At this week’s NAB Convention, issues about FM translators and pirate radio dominated the radio news from the sessions that featured FCC speakers. On the translator front, FCC Chairman Pai, in his speech to the convention, announced that there is a Notice of Proposed Rulemaking that has been drafted and is being considered by the FCC Commissioners, looking to make changes in how complaints about interference to full-power stations from translators would be handled. Currently, a single complaint from a regular listener to a full-power FM station, even if that listener listens outside of the full-power station’s protected contour, is enough to shut down the new translator if the translator licensee cannot resolve that complaint. This policy has prompted a number of battles between translators and full-power stations over whether complaints have come from bona fide listeners (as opposed to employees or others with close connection to the complaining station) who are receiving real interference, and whether or not that interference truly exists (e.g., whether it has been caused by the new translator) and whether or not such interference has been remediated by actions taken by the translator licensee. Last year, the NAB proposed a number of fixes to the policy – suggesting that more than one complaint should be required to prove true interference and that, if interference is found, that the translator be allowed to relocate to any available channel on the FM band to remediate that interference, not just to adjacent channels as a “minor change” as currently required (see our summary of the NAB proposal here). It is anticipated that the FCC’s proposed rulemaking will contain some of the NAB’s suggestions.

Pirate radio was also on the Chairman’s agenda, and was discussed in a panel of other FCC officials at the convention. The Chairman highlighted the recent seizure of a pirate radio operator’s equipment in the Boston area, mentioning that two other such actions had also been taken. The discussion in other panels highlighted the FCC’s willingness to pursue not only pirate operators themselves, but also their landlords where the landlord appeared to be actively involved with the pirate’s operation (see our article here). The FCC is also looking for legislative assistance to broaden that authority to undertake enforcement actions against those who make possible pirate radio operations through providing space, services, or other assistance (see our article here). Watch for further actions on both issues in the near future.

With the NAB Convention upon us, and much of the talk being centered on television issues including the repacking of the TV band after the incentive auction, the conversion to the next-generation of TV transmission as allowed by the new ATSC 3.0 transmission standard, and the effects of the FCC’s changes in the local television ownership rules and the reinstatement of the UHF discount in connection with the national ownership cap, it almost seems like radio is an afterthought. The FCC is considering some matters of interest to radio, including how to revitalize the AM band, and it has taken steps to revitalize individual AM stations through the use of FM translators. And the FCC is apparently considering changes in FM through the creation of a new class of C4 stations (see our post here). Yet, in recent ownership orders from the FCC, while TV ownership rules have been dramatically relaxed in the face of new video competition so that local TV owners can more robustly address their challengers, there were no corresponding changes in the radio rules. In the last ownership proceeding (which we summarized here), other than making changes to the embedded market rules (potentially affecting only radio stations in the suburbs of New York and Washington), and allowing ownership joint ownership of radio with TV and newspapers through the abolition of the cross-ownership rules that had limited or prohibited those combinations, radio ownership rules themselves have not been subject to any real changes in ownership limits since those limits were set in the wake of the 1996 Telecommunications Act. The FCC did make some changes early in this century when it adopted Arbitron (now Nielsen Audio) markets as the way in which competition in rated markets is defined, but the numbers of stations that one party can own has not changed since those numbers were established in the 1996 Act – even though Congress gave the FCC the authority to review and revise the rules to insure that they remained in the public interest.

While there have been no changes in the ownership rules for radio, think about the changes that have taken place in the competitive environment since 1996. At that point, streaming was something only a few technologically-forward people even knew existed. Pandora did not launch its streaming service for another decade, and Spotify was even further behind – not launching in the US until 2011. Even those few people who knew that audio streaming existed in 1996 would never have thought that they could listen to a streaming service in their cars. Apple was not offering a streaming music service – in fact it had not even introduced the iPod (introduced in 2001) or the iTunes store (2003) – both now about to become technological relics themselves because of technological changes. Given that there was no iPod, there were obviously no podcasts to bring audio storytelling to the millions who now listen to their favorite programming through the multitude of services that provide podcasts on almost any subject. There was no Alexa to bring Amazon and other music services into the home – in fact Amazon itself had only begun selling books online in 1995. Even Sirius XM (then Sirius and XM as two competing companies) had not initiated their services at the time of the 1996 Act – as XM did not start providing service to consumers for another 5 years (with Sirius launching a year later). And the pace of change for audio technology is not slowing. Continue Reading What’s Next for the FCC’s Radio Ownership Rules? – Do Changes in the Audio Marketplace Justify Changes in Ownership Limits?

The FCC yesterday issued a Public Notice announcing a window for mutually exclusive applicants filed in the second translator window to attempt to resolve the interference conflicts that the FCC found to exist between certain applications. The conflicting applications are listed on the Excel spreadsheet found here. These are translator applications filed in the second translator window in late 2017 which was opened primarily so that Class A and B AM stations could seek authority to rebroadcast their signals on new FM translators that would be tied to those AM stations. While mutually exclusive parties can start discussions now about resolving the conflicts between their applications, engineering amendments resolving the problems or other settlement agreements can only be filed in a window open between May 24 and June 14.

As we wrote here, applications filed in this second translator window that are not mutually exclusive have already been told to file their “long-form” applications detailing their technical proposals by May 9. The FCC has also recently scheduled auctions for mutually exclusive applicants in the first 2017 translator window who were not able to resolve their mutual exclusivity in the settlement period opened in connection with those applications (see our article here). An auction of mutually exclusive applications left over from the 2003 translator window has also been scheduled (see our post here). So, all in all, the FCC is moving rapidly to authorize many new FM translators in the coming months.

As part of its Modernization of Media Regulation initiative, the FCC proposed to do away with the requirement for TV station employment groups with 5 or more full-time employees and radio employment units with 11 or more full-time employees to file a Mid-Term EEO Report, (Form 397). We wrote about that proposal here, where the FCC suggested that the filing of the report is unnecessary as the report basically consists of submitting the past two years EEO Public Inspection file reports, and those reports are now available to the FCC and the public through broadcaster’s online public inspection files. EEO enforcement would continue (including a mid-term review of the stations now subject to review), but the reports would not need to be filed. The proposal was published in the Federal Register today, setting a deadline for comments of April 30, and a deadline for reply comments of May 15. Interested parties should file their comments by these deadlines.

The FCC yesterday announced that they had seized the equipment of two Boston-area pirate radio stations that had refused to cease operations after receiving FCC notices to do so. The FCC Public Notice on the seizure thanks the US Attorney’s Office and US Marshall’s Office, and the Boston Police Department, for assisting the FCC Field Office in carrying out the seizure authorized by the Communications Act for stations operating without a license. Seizure of equipment is carried out pursuant to Section 510 of the Communications Act, and generally requires that the US Attorney receive approval of a US District Court before the equipment can be seized Thus, the cooperation of the US Attorney’s office in a local jurisdiction is vital to conducting a seizure such as that done in Boston. Commissioner O”Rielly, who has been a vocal proponent of increased actions against pirate radio (see our post here) issued a statement commending the action and calling it a complement to legislative action to enhance fines on such stations and impose clear liability on landlords who host pirate operations (see our post here about a case where the FCC has already put landlords on notice of potential liability for pirate radio operations where they had clear involvement in such operations).

Legislative action on pirate radio seems to be in the works. To combat pirate radio operations, the House Subcommittee on Communications and Technology last week held a hearing (video available here) on proposed bills to amend the Communications Act, including one called the Preventing Illegal Radio Abuse Through Enforcement (PIRATE) Act (see discussion draft here). The draft bill would raise potential fines on pirate radio operators to $2,000,000, and fines of up to $100,000 per day for violations of the Communications Act and FCC rules related to such pirate operations. It would eliminate the need to provide pirates a Notice of Apparent Liability, with the opportunity to respond, before a fine is issued to an operator of a pirate radio station, if the operator is caught in the act of operating the illegal station. The Act would also make clear that those who facilitate pirate radio operations are also liable for up to $2,000,000 fines (“facilitates” is defined to include providing property from which the pirate operates or money for their operations). The draft bill also calls on the FCC to, twice each year, dedicate staff to “sweep” the top 5 radio markets determined to have the most pirate activity to identify pirates and seize their equipment, and authorizes states to enact their own laws making such operations illegal as long as the determination of who is a pirate radio station is made by the FCC.  Continue Reading FCC Continues War on Pirate Radio – Seizes Equipment of Boston Stations While New Legislative Tools May Be on the Way

In 2015, TV broadcasters were required to convert textual warnings about emergency events that are broadcast outside of news programs  (e.g. weather alerts that are displayed as textual crawls during entertainment programming) into audio, and to transmit that audio on the station’s SAP channel. The deadline for that requirement was extended, and then paired back when the FCC determined that some of the events that might be listed in textual alerts, like school closing information during winter weather, could not feasibly be broadcast in a timely fashion on the SAP channel (see our summary here). The text-to-speech requirement for broadcast of emergency information on the SAP channel did go into effect on November 30, 2015. But the FCC extended the deadline for converting non-textual information (such as weather graphics) into speech for broadcast on the SAP channel, as no ready technology for such conversion exists. The most recent extended deadline for compliance with the requirement for non-textual information to be converted to audio runs through May 26 of this year (see our article here). The FCC has just issued a Public Notice announcing that the American Council of the Blind, the American Foundation for the Blind, and the National Association of Broadcasters have now asked for a further extension of the compliance deadline, as no technology for this graphics to speech conversion yet exists.

The parties ask for a 5 year extension of the compliance deadline to find a solution that will allow non-textual information to be converted to audio, and the groups pledge to continue to work together to find a solution. The FCC asks for comments on this proposed extension.  Comments are due by April 13, 2018 with replies due by April 20, 2018. In the interim, of course, all obligations of TV stations to convert textual alerts run during non-news programs to audio alerts broadcast on a TV station’s SAP channel remain in place.

April brings with it a milestone – as it is the end of the first quarter since all radio stations have had to have their online public inspection file “live” so that anyone, anywhere, can view a station’s compliance with rules that previously could only be judged by going to the station and reviewing the paper public file. April 10, in particular, is important, as it is when Quarterly Issues Programs Lists, summarizing the most important issues facing the community which the broadcaster serves and the programs that the broadcaster aired to address those issues, must be in the online public file for all full-power radio and TV stations. We wrote about the importance of these sometimes overlooked documents here, as these are the only FCC-mandated documents that reflect how a station has served the needs and interests of its community. We have also noted that, in the past license renewal cycle, missing Quarterly Issues Programs lists were the source of the most fines issued to broadcasters. Now that compliance can be judged at any time by the FCC, their importance is only magnified. So be sure that you get these documents into your online public file by April 10.

EEO Public Inspection File Reports, summarizing a station’s employment record for the prior year, are also to be uploaded to a station’s online public file. For radio and TV stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, these reports need to be completed and included in the public file by April 1 by all stations that are part of employment units with 5 or more full-time (30 hours per week) employees. In addition, radio stations in employment units with 11 or more full-time employees in Delaware and Pennsylvania, and TV stations in Texas with 5 or more full-time employees, also need to file EEO Mid-Term Reports, commonly referred to as FCC Form 397 applications. While the FCC is considering the abolition of the Mid-Term Report (see our article here), the obligation is still in place so, for now, stations must comply. Continue Reading April Regulatory Dates for Broadcasters – First Quarterly Issues Programs Lists in Online Public File for All Radio Stations and Other Important Dates

On Friday, the FCC released a Public Notice announcing that the rules requiring the inclusion in the online public file of TV station “shared services agreements” is now effective after having been approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act. This obligation for TV stations to put in their public file agreements between independently owned TV stations for shared broadcast services (including shared news operations, accounting staffs and other operational matters) became effective on March 23. It was adopted in the 2016 FCC Ownership Order and the obligation was not changed in last year’s reconsideration of that order (see our summary here). Thus, new shared services agreements should be placed into the public file shortly after being entered into. Agreements existing before the March 23 effective date need to be added to the file within 180 days. As the definition of shared services agreements is very broad, seemingly including pretty much any kind of service other than an on-the-fly, single event-based news cooperation agreements and agreements totally unrelated to broadcast operations (like shared janitorial services), if your TV station shares services of any sort with another station in its market, talk to your attorney about whether that agreement needs to be included in your public file.

It appears that the FCC is attempting to clear its backlog of pending translator applications – and moving quickly to do so. On Friday, it released a Public Notice announcing a new auction beginning on May 15 for the small set of mutually exclusive applications left from last year’s window for the filing of FM translator applications by Class C and D AM stations, and setting the rules and procedures for that auction. While only 26 applications (in 12 groups of mutually exclusive applications – see the list in this Excel file) are involved in the auction, it shows that the FCC is trying to rapidly clear its decks of all remaining translator applications. Already on the FCC’s schedule, as we wrote here, is an auction of mutually exclusive translators left over from its 2003 FM translator window (for the rules adopted for that auction, see the FCC notice here). The FCC has also scheduled the filing of long-form applications for “singleton” applications (ones that are predicted to not cause interference to any other translator application or any existing station) from the window opened late last year for Class A and B AM stations to file for FM translators (see our post here on the opening of the long-form filing window for the translator applications), and long-form applications for applicants who were able to work out mutually exclusive situations in the first window so that they did not need to go to auction (see our post here). Still to be announced for applicants in that Class A and B window is the settlement period for applications that are mutually with other applications. Expect that announcement soon.

We wrote last summer about the substantial reductions in SESAC royalties that the Radio Music License Committee was able to achieve for commercial radio stations through a decision in its arbitration proceeding. RMLC recently sent out an email to all commercial stations that had authorized it to act on the stations’ behalf reminding them that, to get the full advantage of the retroactive discounting of the SESAC rates, stations need to sign the SESAC agreement by Monday, March 26. More information about this deadline and a link to the SESAC contract that needs to be signed can be found at the RMLC’s website, here. The arbitration award covers the license period 2016-2018, which is why there will be credits from SESAC for overpayments that stations made over the past two years. Also on the RMLC site is a link to an authorization form for future negotiations with SESAC for those stations that have not previously authorized RMLC to act on their behalf in SESAC matters. Act now to take advantage of these significant savings.