The FCC offered its solution for the remaining conflicts between LPFM advocates, applicants for new FM translators from the 2003 FM translator window, and full-power FM stations with a series of orders approved by the FCC at its open meeting on Friday. We wrote about some of the issues on the table for the FCC’s resolution most recently, here. The full decision rendered on Friday as to FM translator processing was just made available moments ago, and we will analyze it shortly.  From the FCC’s Press Release on the matter and the statements of the Commissioners, we understand that there were several significant decisions made at the meeting, including:

  • Allowing applicants from the 2003 translator window to continue to prosecute up to 70 applications remaining from the window, as long as at least 20 of those applications are outside of the Top 150 markets and four other markets that had received significant applications in the 2003 window.
  • Allowing applicants from the 2003 window to continue to prosecute up to 3 translators in a single market – up from a limit of one in the Commission’s previous decision on the matter
  • Allowing LPFM applicants to receive waivers of the spacing requirements to full-power stations on second adjacent channels if they comply with the same rules as do translator applicants seeking second-adjacent channel waivers – e.g. showing that there is no interference over populated areas, and agreeing to shut off operations if there is interference to the regularly used signal of any FM full-power station
  • Eliminating the ability for LPFM stations to apply at 10 watts, and apparently rejecting proposals to allow for a class of 250 watt LPFM stations.
  • Specifically allowing LPFM stations to use FM translators in certain instances
  • Promising to open a window for the filing of LPFM applications by October 2013.
  • Changing certain preferences in the point system for awarding LPFM stations

The details set out in the just-released order will be quite important, as they should provide more information about the process for processing the remaining FM translator applications from the 2003 Window, an issue very important to many broadcasters who have been looking at some of these stations as a way to provide rebroadcasts of their AM stations and their HD-2 streams. Full-power broadcasters will also be interested in the details of the complaint process that will apply to new LPFM stations that cause interference to full-power FM stations. And those interested in LPFM will be anxious to see more details on the preference changes for awards in situations where there are mutually exclusive applications for new LPFM stations – including the obligations for shared-time operations in certain circumstances. So watch for further information in the coming days. 

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act’s prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing the decision of the initial three judge panel, has indicated that the case should not be relied on as precedent in any other court decision until the full Court can complete its review. While one must be careful in pre-judging any court decision, especially when all we have to divine the intent of the Court is a two sentence order, this at least hints that the full Court may have misgivings about the initial decision in this case.

The initial decision by the three judge panel suggested that the limits on political speech placed unjustified burdens on the First Amendment, and that there was no overriding non-speech related objectives served by these restrictions. The panel suggested that political ads were different than other commercials trying to sell a service or product, as political speech did not sell a commercial product, but instead encouraged civic discourse not unrelated to the educational mission of noncommercial stations.  Many noncommercial stations saw the potential that this decision could lead to a new source for revenue to support their operations, while others expressed fears that it could erode the noncommercial nature of educational stations. The FCC, while questioning the decision, had initially stated that it would allow stations in the Ninth Circuit to accept political ads as soon as the panel’s decision became effective (in the FCC’s notice of proposed rulemaking asking for comments on other noncommercial fundraising issues). Given the Court’s order in this case, we will wait to see if the FCC revisits this finding as to stations in the Ninth Circuit.  Look for a final decision in this case in the coming year. In the meantime, stations outside the Ninth Circuit should not look for any immediate relief, and stations in the states in the circuit should proceed cautiously in considering any political advertising on their stations.

112 new FM channels will be available in the next auction for new FM channels (referred to by the FCC as "Auction 94") to be held beginning April 23, 2013. To participate, interested parties must file their "short form" applications – setting out information about the ownership of the applicant and the channels in which they are interested – by February 6, 2003. All of the procedures for the auction are set out in the order released late Wednesday, available here. The locations of the available channels, authorizing the winners to build new FM stations  serving the named communities and the nearby area, are also set out in this attachment to the order. The notice adopts many of the same procedures set out when the Commission first proposed the auction back in September (see our article here). However, the Commission pushed the auction back the initially scheduled date for the auction by about a month to avoid religious holidays and the NAB Convention, ending up with the new starting date of April 23. The Commission also pushed back other dates associated with the auction, deleted a handful of channels that had been proposed for inclusion in the auction but had not been properly published in the Federal Register, and announced other decisions relating to the auction – all with many cautions for those who may be bidding about the possible pitfalls of the auction process.

The relevant auction dates are as follows:

Auction Tutorial Available (via Internet) …………………….January 28, 2013

Short-Form Application (FCC Form 175)

Filing Window Opens ……………………………………………….January 28, 2013; 12:00 noon ET

Short-Form Application (FCC Form 175)

Filing Window Deadline……………………………………………February 6, 2013; prior to 6:00 p.m. ET

Upfront Payments (via wire transfer)…………………………..March 18, 2013; 6:00 p.m. ET

Mock Auction ………………………………………………………….April 19, 2013

Auction Begins…………………………………………………………April 23, 2013

The most important dates for bidders are the deadline for the submission of the "short-form" application of February 6, the date for the Upfront Payments, and of course the dates for the start of the auction itself. The short-form lists the owners, any bidding agreements that the parties have with other bidders, and the channels in which the party is interested in bidding. The bidder can also submit specific proposed transmitter site coordinates for any channel in which they are bidding, which protects those named sites from moves by other existing stations that could otherwise preclude their use.   The failure to meet this February 6 deadline means that a party cannot participate in the auction.

Continue Reading FCC Sets Deadlines and Procedures for the April 2013 Auction of 112 New FM Channels – February 6 Deadline for Applications to Participate

The relationship between low power FM stations and both FM translators and full-power FM stations will be addressed by the FCC at its open meeting on November 30 – the only issues on the FCC’s agenda for that meeting. We expect that two controversial matters will be discussed – (1) the effect that the thousands of FM translators that remain pending from the 2003 translator window will have on LPFM availability and how to deal with those applications and (2) the interference considerations between translators and full-power stations, including issues such as second-adjacent channel interference waivers and the situations in which LPFM interference to full-power stations will require that the LPFM cease operations. For LPFM advocates and applicants, issues are also outstanding about the qualifications for LPFM applicants in an upcoming (yet-to-be announced LPFM filing window), including whether there will be obligations placed on LPFM operations for specific amounts of local program origination.

The FM translator issue has been a long and contentious one. In 2003, during the last FM translator window, thousands of applications for FM translators were filed. LPFM advocates have contended that the grant of these applications would preclude LPFM opportunities. After processing applications for a couple of years, the FCC froze the processing of all the remaining applications, and in 2007 announced that applicants would only be able to prosecute 10 of their remaining pending applications. There were many objections filed to that decision. Last year, the FCC announced a much more granular process for determining which translator applications could be processed, looking on a market-by-market basis at the prospects of LPFM interference, and deciding that translator applications would only have to be dismissed where interference limited LPFM opportunities for a given number of LPFM stations. The Commission also decided that a cap of 50 applications should be imposed on the number of applications that one entity could continue to prosecute, and limited applicants to prosecuting one application per market. See our summary of the FCC decision on the translator-LPFM issues here. These issues are all subject to petitions for reconsideration.

Continue Reading FM Translators and LPFM on FCC Agenda for November 30 Meeting – A Final Resolution for the Pending 2003 Translator Applications?

What should broadcasters worry about from an FCC inspection? A few weeks ago, I was speaking at the Kansas Association of Broadcasters’ annual convention. At the convention, I attended a session conducted by an FCC field inspector and the engineer who conducts the "alternate broadcast inspection program" ("ABIP") for the KAB.  We’ve written about the ABIP program before, and how beneficial participation in that program can be for stations that want to avoid an FCC inspection and possible fine. At the convention, these inspectors talked about the issues on which the FCC is focusing in recent inspections. These issues are not to the exclusion of other common issues that we have written about before – like the need to keep the public file updated, the completion of quarterly issues programs lists, the need to maintain operational an EAS encoder/decoder, and the requirements for manned main studios. But there are other issues, including some that have not been a focus in the past, that now require broadcasters to be on guard.

One issue deals with broadcast auxiliaries. These are the licenses that broadcasters use in connection with their main studio operation. This includes licenses like Studio-Transmitter Links (STLs) that relay programming from the studio to the transmitter site and Remote Pickups (RPUs) that convey remote information back to the studio. During the summer, the FCC fined several stations for using auxiliaries without a license in amounts up to $20,000 (here and here), and issued a fine for $8000 for a station using an STL at a location different than that set out on the STL’s license. Have you moved a main studio in recent times? If so, did you amend your STL license to specify the new studio location – which is most likely the new transmit site for the STL? If you haven’t, and the FCC catches you, you may be looking at a fine.

Continue Reading FCC Inspection Issues for Broadcasters – Auxiliary Licenses, Chief Operator Designations, and Tower Issues

Hurricane Sandy (or "Superstorm Sandy as it now seems to be called) has resulted in an outpouring of support from broadcasters across the nation, looking for ways to raise funds for those that have been affected by the storm and its aftermath. Noncommercial broadcasters who are interested in joining in the fundraising efforts were aided by a Public Notice released by the FCC yesterday, adopting a form of a simplified waiver of its policies against noncommercial broadcasters engaging in on-air fundraising activities on behalf of any entity other than the station itself if that fundraising "substantially alters or suspends regular programming" of the station.  As we have written before (see for example these articles about Tsunami relief, and aid to victims of the Haitian earthquake), the FCC has previously granted liberal waivers of its policies to allow noncommercial stations to engage in fundraising efforts where there is this type of mass disaster. The process for filing for one of these simplified waivers is set out in the Public Notice.

In our previous posts about these blanket waivers, we have commented how, in our opinion, this policy may well have outlived its usefulness as noncommercial broadcasters should be able to make these decisions about what programming best serves their listeners on their own, just as do commercial stations. The Commission has itself asked whether the policy should be changed, initiating a Notice of Proposed Rulemaking on the subject, with comments that were filed just a few months ago (see our summary of the proceeding here, including a description of the many limitations that the Commission suggested be retained even if the rules were somewhat relaxed). While some noncommercial broadcasters were supportive of a relaxation of the policy to allow them to make their own decisions, others were concerned. In particular, some stations were concerned that the relaxation of the rules would put too many demands on these stations from various charities looking to raise money on the stations – and it would be a difficult process for stations to pick and choose among these groups.  Some of these broadcasters also felt that such efforts could overwhelm the audience, change the nature of the noncommercial service, and affect the station’s own fundraising appeals. Supporters of the liberalization ask why the broadcasters can’t avoid these problems by applying their own judgment, but having a government prohibition to rely on does simplify the choices that a broadcaster might otherwise have to make.  We will watch with interest how this policy issue plays out as the Commission considers the comments filed in its rulemaking proceeding in the coming year. 

For one blog entry, I’ll depart from our usual discussion of legal issues. There is plenty of time to analyze the effect that last night’s election will have on the broadcast industry, and to discuss other issues of importance to broadcasters. Instead, as we approach the holiday season, I thought that I’d go into another direction. I’ve just returned from the NJ coast, where my family has a home that was partially flooded by Hurricane Sandy. While we had some property damage, it was nothing compared to the destruction I saw in other neighborhoods on the Jersey Shore. Seeing the number of people affected by the storm, and hearing the radio reports from locations up and down the coast where the destruction was far worse, made me think that I should talk a little about the good things that the broadcast and communications industry does, and how those in the industry can help take care of their own.

It has been great to see the many TV networks broadcasting programs with the specific purpose of promoting hurricane relief. And, in a post that we’ll put on the blog later today, the FCC has just made it easier for noncommercial broadcasters to contribute in these. Being on the ground at the NJ shore for a few days, without electricity other than what was provided by a small gas-powered generator, demonstrated to me the power and importance of portable media – including radio. Throughout my weekend at the shore, we could get news and entertainment from a battery-powered radio and the radio in our car. Together with tidbits of news from Facebook posts, a local list-serve and the few other sites that we could get on our mobile phones (for as long as the phones stayed charged) in an area where the mobile networks were often slow due to the high demand for wireless service as the storm had ruined many landline connections  – these were our links to the outside world. Radio kept going, providing updates of all that was going on in the area. One local radio station was particularly noteworthy, as it was operating even though it did not have operating phones or email access. Yet it continued to broadcast, conveying information as to how people could help each other. That information was collected from people posting on the station’s Twitter feed. The station truly showed how convergence of electronic and broadcast media can really work well together. 

Continue Reading Broadcasters Giving Back – Thoughts on Sandy, Public Service and Communications Charitable Contributions

In these last days before the November election, the third-party ads attacking candidates in various political races don’t show any sign of letting up. In fact, press reports indicate that, if anything, the use of these ads is expanding to states not yet receiving them as, because there is so much money in these organizations and so few days left to spend it, they are throwing money into ads in states where there was thought to be little chance of their candidate prevailing. As we warned in our article about third-party political advertising, stations always have a bit of risk in running these ads, as stations have full discretion as to whether or not these ads air. Unlike candidate ads that cannot be censored, third-party ads are aired at the discretion of the station, and if the station airs an ad that is false, and injurious to a candidate, and the station either knows or should have known that the ad was false yet continues to air it (meeting the "actual malice" standard as applied by the Supreme Court to public figures in NY Times v Sullivan), the station theoretically has liability for the content of that ad.

While stations in political seasons often receive threatening letters about third-party ads from representatives of candidates that are attacked – suggesting that the station continuing to run the ad will lose its license or be sued for defamation – such threats rarely result in real penalties or even subsequent legal actions from the complaining parties. But in a complaint just filed in US District Court in the Eastern District of California, Congressman Jeff Denham has filed suit against the Democratic Congressional Campaign Committee for producing an allegedly defamatory attack ad, and against 5 local television stations that are allegedly running the ad even after Denham’s representatives told the stations that the ad was false and requested that the ad be removed from the air. The Congressman is seeking injunctive relief (meaning that he wants the Court to order that the ad be stopped) and damages as appropriate.

Continue Reading California Congressman Files Suit against TV Stations for Alleged Defamation in Third-Party Advertising

The FCC today acted on a reasonable access complaint by Randall Terry against a Washington DC television station, ordering the station to sell commercial time to his campaign as he is on the ballot as a legally qualified candidate for President in the state of West Virginia. The decision was based on the Commission’s finding that a portion of the station’s noise limited service contour ("NLSC") encompassed a county in West Virginia. Prior to the conversion of television stations to digital operations, the FCC’s policy was that a station would have to give reasonable access to a candidate if the station provided more than de minimis Grade B coverage of the district in which the candidate was legally qualified. This decision held, for the first time, that the NLSC was the equivalent of the Grade B contour for reasonable access purposes. It further found that NLSC coverage of 54,000 people, 3% of the state’s population, was not de minimis, and ordered the station to provide reasonable access to purchase advertising time on the station before next week’s election.

We recently wrote about the reasonable access obligations of broadcast stations. We also wrote about Mr. Terry’s attempts to purchase airtime on television stations during the primaries to air graphic anti-abortion ads. Now that Mr. Terry has secured a place on the Presidential ballot in certain states, we may see some of those ads on TV stations in the closing days of this election. Perhaps a scary thought for many on this Halloween night.  But, for television stations, this decision also establishes the extent of their obligations for the carriage of ads from candidates who may be running in districts that make up only a small portion of their total coverage area. Stations take note. 

With Hurricane Sandy bearing down on the US East Coast, the FCC has issued reminders to consumers and communications companies about what to do in areas affected by the storm. Late Friday, it issued two public notices. The first public notice advised broadcasters and other communications companies that the FCC will be available 24-7 over the weekend and during the storm to answer calls about service outages, to assist where possible in restoring any lost service, and to issue emergency authorizations for temporary facilities.  As we have written before, the FCC has been helpful in past disasters – seemingly able to bridge bureaucratic barriers that might otherwise delay the restoration of communications services.  The second public notice was directed to consumers, telling them to try a variety of means to communicate if one service is not working, suggesting text messages if mobile networks are affected by the storm, and urging that communications be kept short and limited to immediate needs so as not to overload any communications systems.

The FCC did not issue another notice that is usually issued in these circumstances, but we will remind television broadcasters and other video providers of their obligations to visually present any information that identifies an immediate threat or which conveys actionable information about an emergency to the public.  This information was related to broadcasters in a Public Notice issued just before Hurricane Isaac reminding video providers – particularly television stations, but other video providers as well – that they need to visually present emergency information that they may be conveying verbally on the air so that the hearing impaired have access to that information, and similarly that information that is provided visually (e.g. through a crawl), be also provided aurally, or at least alert tones must be used to put the visually-impaired on notice of the fact that emergency information is running on the station.  It is important that video providers remember this obligation, as many complaints are filed with the FCC each year by groups who represent those with a disability, calling television stations to task for not meeting their captioning obligations.

Continue Reading FCC Issues Emergency Communications Reminders to Broadcasters and Other Communications Entities in the Path of Hurricane Sandy