August 29 will be the deadline for initial comments on the FCC’s proceeding to set the relationship between applications for new LPFM stations and those for FM translators, a date set forth in a Federal Register publication of the FCC’s Notice of Proposed Rulemaking on this topic.  We wrote about the FCC’s NPRM here.  But it bears emphasizing that the decisions made in this proceeding will impact the processing of the thousands of FM translator applications still pending from the window opened for these applications back in 2003, and the potential for a new filing window for LPFM applications in the near future.  The NPRM also will decide whether FM translators can be used for the rebroadcast of an AM station if that translator was granted after the FCC first authorized the rebroadcast of AM stations by FM translators.  Up to this point, AM stations can only use translators granted before May 1, 2009 to rebroadcast their signals. 

Issues to be addressed in this proceeding include:

  • Whether the FCC’s proposal to use a market based analysis to determine which 2003 translators can continue to be processed (dismissing all translators when there were few opportunities for new LPFM stations) is justified?
  • Whether the technical basis of that analysis is accurate (as the FCC used the same model to assess the availability of channels in a market – overlaying a grid onto each market, and determining if LPFM opportunities existed at set points on that grid – the grid size was uniform in all markets, even though markets obviously are not uniform in size and shape)
  • Whether the assumptions about the number of LPFMs that are needed in each market were justified (the FCC concluding that there should be opportunities for at least 8 LPFMs in the Top 20 markets, 7 in Markets 21-50, 6 in Markets 51-100, and 5 in Markets between 101 and 150 and in smaller markets where at least 4 translator applications are pending – if there were not that many opportunities available, then all the FM translators pending in that market were proposed to be dismissed).
  • How should future opportunities for filing new LPFM and FM translator applications be handled?  What would be the priorities between such applications?

In addition, while this proceeding is pending, all "move-ins" of FM translators into rated markets, where they have become much in demand to rebroadcast AM signals or signals from HD-2 stations, are frozen.  So, many are anxious for the resolution of this proceeding – not only those with 2003 FM translator window applications still pending and those who are anxious to file for new LPFM stations, but also those looking to move a translator into a larger market (and we’re sure that the FCC is anxious to resolve this matter too).  So file your comments by the August 29 deadline, and your replies by September 12.

For our readers in the television business, there have been recent developments in two proceedings about which we have written recently.  Last week, we wrote about the extension of time to file reply comments on the CALM Act implementation Notice of Proposed Rulemaking, where the FCC is implementing a Congressional act to curb loud commercials.  The extension on the reply comments was granted as the Advanced Television Systems Committee was about to announce new amendments to its protocol that is the standard proposed as the basis by which compliance with the act is measured.  Given the importance of these standards, the FCC wanted to give interested parties at least a brief opportunity to comment on the revisions, thus warranting the extension.  According to an FCC Public Notice, those revised standard have now been announced, and can be viewed on the ATSC website, here.  Interestingly, as I write this article, the link to the Standards provided in the FCC Public Notice does not work, and the full report is not evident on the ATSC site.   Hopefully, those issues will be short lived, as the Reply comments are due on August 1.

Another recent proceeding of interest to television operators is the recent Order of the FCC dealing with the digital conversion of LPTV stations, Class A TV stations and TV translators.  We wrote about that proceeding here.  That Order sets deadlines this year for stations still operating in the portions of the television band that have already been reclaimed for use by wireless companies (Channels 52 to 69).  Any LPTV or TV translator still on these channels must file for a construction permit to move to the core television band by September 1 of this year.  The Order further requires that these stations stop operating on their current channels by the end of this year.  So that Channels 52 to 69 can be cleared on this very quick schedule, the FCC is expediting this proceeding, and has already published the Order in the Federal Register.  While this publication triggers the effective date of the Order (August 26 except for the portions dealing with fees for ancillary and supplemental services, which will be set at a later date), it also signals the start of the period in which Petitions for Reconsideration or Court appeals can be filed.  A not-so-fearless prediction – some sort of appeal will be filed, but it seems unlikely that it will be resolved by the September 1 filing deadline absent very unusual Court or Congressional intervention.  But watch for the filings in any event but, if you operate one of these stations on any channel between 52 and 69, be prepared to vacate the channel if nothing unusual changes the FCC’s collective mind between now and then.

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Update – 7/28 – from an alert reader on the location of the new ATSC protocol:

I checked the ATSC website and the Recommended Practice is there.  Look under "Standards" and drop to "Recommended Practices".  There is probably confusion because the ATSC’s A/85 is not a "Standard" but a "Recommended Practice".

recommended-practices/185-a85-techniques-for-establishing-and-maintaining-audio-loudness-for-digital-television

The FCC link is wrong

 

A consent decree entered into by a radio broadcaster, which included a $12,000 "voluntary contribution" to the US Treasury, demonstrates once again the FCC’s concerns about sponsorship identification issues.  The week before last, we wrote about the FCC fine levied on a television broadcaster for not including sufficient sponsorship information when a "video news release" was broadcast on a local television station without disclosing that the video footage had been produced by the automobile company whose products were featured.  The recent FCC Report on the Information Needs of Local Communities (formerly known as the Future of Media report) also focused on the need for more disclosure in connection with sponsored material carried on broadcast stations and other media (see our summary here).  With a long outstanding Rulemaking proceeding on these issues that remains unresolved (see our summary here), the Commission almost appears as if it is setting its policies in these areas through case law rather than through the rulemaking process.

In this most recent "payola" case, a complaint was lodged against a Texas radio station owned by Emmis Broadcasting alleging that the host of one music program was receiving compensation from a local music club, a local record store, and a manager of local bands in exchange for featuring music on the show.  The allegation contended that other local bands could not get their music played on this show without sponsoring Station events hosted by this particular personality.  The Consent Decree does not resolve the question of whether these allegations were true, but instead requires that the licensee make the voluntary contribution, adopt procedures to make sure that Station employees are aware of the requirements of the sponsorship identification rules, and report  to the Commission on a regular basis on the actions taken by the licensee to ensure compliance with the FCC rules.  In addition to general requirements that the Station educate its employees about the sponsorship identification rules, the Consent Decree also contained conditions setting forth rules governing the relationship that station employees could have with record labels, even though the decree makes no mention of any allegations of improper consideration having come from record companies.  These conditions were ones that appear to have come from consent decrees entered into with a number of broadcasters 4 years ago in the last major FCC payola investigation (which we wrote about here).

Continue Reading $12,000 Consent Decree Payment Demonstrates FCC Concerns About Sponsorship Identification Policies

The recent decision of the Third Circuit Court of Appeals which overturned the FCC’s 2007 rulings on newspaper-broadcast cross ownership and on diversity initiatives, took an unexpected turn today.  The FCC issued a Public Notice announcing that it would immediately stop giving "Eligible Entities" an advantage in certain instances – most particularly the extension of construction permits for new stations that are close to their expiration dates.  In the FCC’s 2007 Diversity Order, the Commission, to encourage more diversity in broadcast ownership, allowed "eligible entities", i.e. small businesses under SBA definitions, to acquire construction permits for new stations that were close to expiration, and to get an additional 18 months in which to construct the station.  In most other circumstances, the FCC will not extend a construction permit (absent some limited "tolling events" that will give applicants a limited amount of time to construct – but just the amount of time that a limited unforeseen event takes out of the usual 3 year construction period).  The 18 month extensions given to Eligible Entities have become an important way of saving construction permits about to expire when the original permit holder could not complete construction in the given 3 year construction period.

Today’s decision takes away that opportunity to extend unbuilt construction permits.  And the ruling goes even further, pulling the rug out from under recent grants of CP extensions – even ones that have already been granted, unless the extensions have become "final," i.e. no longer subject to reconsideration or appeal.  Those extensions granted in the last 40 days are subject to this order, and if these CPs have an initial expiration date that has already passed, they will be canceled.  This will no doubt cause some great consternation among parties who have purchased a construction permit in reliance on an FCC order extending the permit by 18 months, and may even have taken steps to construct the station since purchasing it, and now find themselves with a permit that has already expired.  The Commission makes no suggestion why some other remedy consistent with the Court’s order, but not so harmful to parties that relied on prior Commission policy, could not have been adopted – perhaps a new "tolling event" giving applicants a limited period of time to get a station on the air before the CP was canceled.  Sellers no doubt relied on the prospects of a pending sale (and simultaneous extension) to stop taking last minute extraordinary efforts to get a station constructed before the CP expired, and Buyer’s relied on the FCC order extending a CP to close purchases.  Given the potential for some entities to suffer greatly by this ruling, look for appeals to be filed.

Continue Reading FCC Stops Processing Applications By “Eligible Entities” – No Extensions of Unbuilt CPs When Sold to a Small Business

The FCC has announced the final amount of its regulatory fees for FCC Fiscal Year 2011 – fees that will be due during a window not yet announced – but likely sometime in late August or September.  The Fees, set out below, are pretty much identical to those that were proposed in May, when the FCC sought comments on these fees.  The procedures for filing will be much the same as in the recent past, though the FCC did make a few clarifications on some issues affecting broadcasters.  These issues include the following:

  • The FCC will no longer mail notices to broadcasters about their fee obligations.  Instead, stations will need to go to the FCC website to verify the amount of the fees they owe.  Look for the site containing that information to be live in the next few weeks.
  • The FCC decided that LPTV and TV translator stations that operate both analog and digital facilities during their digital transition will pay only one fee.  As we wrote last week, that transition will end (barring reconsideration or other review of last week’s order) for stations operating on Channels 52-69 at the end of the year, and will end in 2015 for all other LPTV and TV translator stations. 
  • The FCC promised to start a new rulemaking before the end of the year to reassess the allocation of the regulatory fee burden.  Within the broadcast industry, that would mean looking at issues such as whether VHF television stations should pay more than UHF stations for their fees – when in the digital world, most think that UHF channels are actually more valuable than those on the VHF band.  But, with potentially more impact, the FCC would look at rebalancing its fees over all the different industries that it regulates. Congress gives the FCC a specific amount of fees that it must raise from all of the industries that it regulates.  The percentage that broadcasters pay has been unchanged for many years.  The FCC is going to review that allocation to assess how business in the various industries have changed to see how those allocations should be changed in the future.

The FCC also reminded broadcasters that they needed to make the payments on time to avoid late fees and interest charges.  Broadcasters pay fees based on a station’s status as of October 1, 2010.  Thus, a station that was an unbuilt CP as of October I, 2010, but has subsequently been constructed, still pays the CP fee for this year.  The same goes for stations that have received upgrades in the period after October 1 – they pay only the amount due for their status as of October 1, 2010.  However, if a station has changed ownership since October 1, the new owner is still the one liable for the fee payment.  The broadcast regulatory fees for this year are set forth below:

Continue Reading FCC Sets Regulatory Fees for Fiscal Year 2011 – Look for August or September Payment Deadline

If a broadcaster is looking to maximize the fine that they receive for FCC violations, one would be hard pressed to pick three violations more likely to draw the ire of the FCC than those that were found after a field inspection of a North Carolina AM station, leading to a Notice of Apparent Liability proposing to fine the station $25,000.  The inspection found a tower site with an unlocked fence (a fence which was also observed to be in disrepair) around areas of high RF radiation, and no evidence of either an EAS receiver or a public file at the station’s main studio.  In the FCC’s estimation, that public file violation was the most serious, warranting a $10,000 fine.  Those pesky violations that could lead to actual harm to real people if someone wandered onto the tower site or if an emergency message did not reach its intended audience – drew fines of $7000 (for the unlocked fence) and $8000 (for the missing EAS receiver). 

A number of excuses were provided by the licensee, and rejected by the Commission.  The fact that subsequent remedial actions were taken did not reduce the severity of the violations found during the inspection.  An excuse offered after the inspection, that the studio was in the process of being moved to another location at the time of the inspection, meaning that the public file and EAS system were in transit, was also rejected – as the move was not mentioned to the FCC inspectors as a reason for the violation at the time of the inspection, and as the fact was that the station was in violation at the time of the inspection – during normal business hours, no public file or EAS equipment was at what was then the main studio.  The fact that no EAS outage were noted on any station log was also taken into account by the FCC.

Continue Reading $25,000 Fine for Unlocked Tower Fence and Missing EAS Receiver and Public File

Broadcasters beware – podcasts with music may be dangerous to your economic health.  In recent weeks, I’ve come upon more than one incident where a broadcaster was providing podcasts containing music on their website, or allowing listeners to download or stream on-demand some new, hot song.  I’ve even seen certain articles in the trade press advocating that stations do podcasts of their morning shows, or otherwise provide some sort of programming containing music on their websites in a manner in which the listener can listen over and over again to the same program or song.  Broadcasters need to know that they are asking for trouble when they provide services like podcasts, downloads and on-demand streams containing music without getting specific permission from copyright holders to do so, as these uses are not covered by the SoundExchange royalties paid for webcasting, nor (in most cases) by your ASCAP, BMI and SESAC royalties.  

The royalties paid to SoundExchange are for the right to publicly perform sound recordings in a noninteractive manner.  In other words, they only cover streams where the user cannot get a specific song when they want it, and where listeners do not know the order in which songs will be played.  ASCAP, BMI and SESAC (the "PROs") also cover public performances, but of the underlying musical compositions (the words and music of the song, as opposed to its recording by a particular singer or band).  By contrast, “podcasts,” ( and here I mean an on-demand program that can be downloaded onto a digital device for later replay, and which can also usually be played immediately on someone’s computer) are much like downloads – and involve a different right in music – the right to reproduce and distribute the music.  The rights of reproduction and distribution are different from the public performance right, and the permission to make reproductions and distributions are granted by different groups than are the public performance right.  SoundExchange and the PROs have nothing to do with granting this reproduction and distribution right (with the limited exception of ephemeral rights in streaming granted through the SoundExchange royalty – a concept too technical to be discussed here, and one that does not affect this warning.  But, if you are interested in these rights, you can see our article that discussed ephemeral rights in a bit more detail, here).  Podcasts, downloads and on-demand streams require a specific grant of rights from the copyright holders of the sound recordings and the musical compositions for each piece of music that is being used. 

Continue Reading Beware – Music Use in Podcasts, Downloads and On-Demand Streams are Not Covered By Your SoundExchange Royalties

The FCC has granted a short extension for Reply Comments on the implementation of the CALM Act.  The new deadline for Reply Comments is August 1, 2011.  We wrote about the issues in this porceeding here,  The CALM Act ("Commercial Announcement Loudness Mitigation" Act), which must be implemented by the end of this year, is meant to require broadcasters, cable companies and other MVPDs to eliminate loud commercials – commercials that are substantially louder than the associated programming.  As we set out in our previous article, the Commission looks to establish compliance based on a series of recommended best practices developed by the Advanced Television Systems Committee.  As the ATSC is about to release an updated version of this protocal (to be released on its website on July 26), a short extension was deemed to be appropriate so that interested parties could review the updated standards.  If you are concerned about compliance with the proposed new rules, take this extended opportunity to review the new ATSC recommended practices, and file your comments on or before August 1.

The deadlines for the digital conversion of LPTV stations, TV translators and Class A TV stations were announced on Friday, in an Order where the FCC also provided some indication of their expected timetable for the reclamation of some of the television spectrum for broadband use – and that expectation is nowhere near as aggressive as originally announced two years ago in the FCC’s Broadband Report. The digital conversion of LPTV and translator stations will happen by September 1, 2015.  The FCC also ordered an earlier December 31, 2011 deadline for the digital conversion and clearing of the reclaimed spectrum by those stations still operating in parts of the  former television band (Channels 52 through 69) that have already been reclaimed and mostly auctioned for wireless uses. The digital conversion of Class A stations and other operational issues were also discussed in the order.  The details of the order may also reveal the Commission’s thinking on the proposed reclamation of other portions of the TV spectrum for broadband use, and of the use of Channels 5 and 6 for radio.  Details on the deadlines and other actions by the FCC in this order are set out below. 

Conversion Deadline and Process for Stations in Core TV Band

LPTV, translator and Class A stations (referred to in the rest of this article simply as "LPTV stations" except with respect to the specific Class A rules discussed below) will have a hard deadline for digital conversion of September 1, 2015.  As of that date, all analog television operations in the US will cease.  If LPTV stations do not already have a construction permit authorizing digital operations, they must file for such a permit by May 1, 2015. All existing construction permits for a digital flash-cut on the LPTV station’s current channel are automatically extended by this Order until the September 15, 2015 deadline. This does not extend outstanding construction permits for digital companion channels. Extensions of those permits must be requested by the permittee. 

Continue Reading FCC Sets Deadlines for LPTV, TV Translator and Class A Stations To Convert to Digital – And Gives Hints When Television Spectrum May Be Reclaimed for Broadband

ICANN (the Internet Corporation for Assigned Names and Numbers) has approved the use of .xxx as a domain (like .com) for the adult entertainment industry. In September, broadcasters and others with registered marks will have an opportunity to reserve their marks defensively in the .xxx domain.   

While adult-oriented website operators may be interested in reserving spots in the .xxx top level domain (TLD), broadcasters may be just as eager to prevent their call signs and other marks from being used in that TLD where they may be associated with adult content. The ICM Registry, which will operate the .xxx domain, will allow those who own registered trademarks to reserve .xxx domain names to prevent others from using their marks in that domain.

Continue Reading Protect Your Call Signs and Other Marks in the .xxx Domain