Operating a communications tower can always lead to issues, but two recent FCC decisions give tower owners some degree of relief. In one decision, the Commission’s Audio Services Division rejected a petition filed against the construction of new facilities for an AM station in Wasilla, Alaska – rejecting claims that the FCC’s RF radiation standards were not strict enough to protect local residents. In another case, the FCC determined that towers using an automatic system to monitor tower lighting – the “RMS system" – did not need to physically inspect the lights on the tower every quarter, as now required, but instead could do so annually, and set up an expedited system for approving tower owners who want to take advantage of this flexibility. 

The first case, dealing with RF radiation, may be dismissed by some as just a decision stating the obvious – that a station that complies with the FCC’s RF radiation standards should be allowed to be constructed. But it is not always so simple. We have had clients face situations in many areas around the country where local residents complained about a new broadcast facility – blaming it for everything from the failures of electronic equipment to the health problems of nearby residents. Various organizations have espoused theories that the FCC’s RF standards are insufficient to protect the public, and their theories are often publicized through the Internet. And sometimes, these complaints can be brought to local elected officials who, not wanting to anger local voters, try to make an issue out of what should be a fairly straightforward analysis.

Continue Reading FCC Decisions Making the Life of a Tower Owner Easier – Easing Approval for Automatic Monitoring, and Making Clear that RF Radiation Standards Are Not Arbitrary

The big news in the music world this week is that Apple finally is able to sell digital downloads of the Beatles catalog in its iTunes music store.  For years, the copyright holders who control the Beatles master recordings have withheld permission to use the Beatles recordings on iTunes and other digital download and on-demand streaming services, seemingly afraid of diluting the value of their copyrights.  There are other bands who have had a similar reluctance to make their recordings available on-line.  While this impasse has now been broken by the biggest name among these digital holdouts, at least as to iTunes, some have asked why it is that the Beatles were never missing from Internet radio, while they were absent from these other services.  The answer is the statutory license under which Internet Radio operates.

While there have been many disputes over the royalties that have been imposed under the statutory license created by Congress which allow non-interactive digital music companies to use sound recordings to provide music to their customers, there is no question that the license has fulfilled one of its primary functions – making sure that there is access by Internet radio operators to the entire catalog of sound recordings available in the United States.  One of the principal reasons that the statutory license was created was the inherent difficulty, if not the impossibility, for a radio-like digital service operating under the sound recoding performance royalty first adopted in 1995 to secure permission from all of the copyright holders of all of the music that such services might want to use.  Thus, Congress adopted the statutory license which requires the copyright holder to make available its sound recordings to non-interactive services, in exchange for the service agreeing to pay a statutory royalty – the royalty now set by the Copyright Royalty Board.  But only non-interactive services, where listeners cannot select the songs that they hear, are covered by that statutory royalty (see our summary here of one of the cases dealing with the question of what is and what is not a non-interactive service).

Continue Reading Apple iTunes Gets the Beatles – Why Internet Radio Had Them All Along

In another of a series of recent decisions, a regional field office of the FCC issued a Notice of Apparent Liability, proposing to fine a licensee $10,000 for missing seven Quarterly Programs Issues lists in its public file.   As there have been so many recent cases raising the same issue, why mention this case?  We highlight it here because of the excuse used by the licensee to try to get out of the fine – the licensee claimed that it was fault of a former employee who was responsible for the file, and that person must have messed up (lost the reports, not prepared them or something along those lines).  The FCC rejected that argument (not for the first time), finding that the licensee, not any particular employee, is ultimately responsible for FCC rule compliance.  Thus, owners need to make sure not only that they have given FCC compliance responsibility for specific FCC obligations to a specific employee, but they also need to be responsible for ensuring that the assigned employee is in fact doing his or her job.  If there is a failure to meet an FCC obligation, the responsibility (in terms of the FCC fine) will almost always land on the shoulders of the FCC licensee.  So delegate – but do so responsibly, and remember to check to make sure that the employees are doing correctly the tasks which they have been assigned. 

The FCC also refused to make any adjustment in the amount of the fine, given that the licensee had admitted public file deficiencies in its last license renewal application.  Given a previous history of noncompliance, the FCC was not willing to adjust the fine.  With the upcoming license renewal cycle, licensees who have previous problems with FCC compliance should be particularly attuned to this admonition – as the FCC seems unwilling to show any leniency to repeat offenders (see our summary of another recent case where the FCC actually adjusted a fine upwards from the amount suggested in the FCC’s schedule of base fines, based on a 13 year old violation for a similar offense). 

In the "what were they thinking" category, the Society of Broadcast Engineers reports that there is a commercial for the new Skyline movie that contains an EAS tone – that can actually set off EAS receivers.  If a station is operating without an attendant, with the EAS on automatic, a receiving station could be automatically start retransmitting its primary station if it hears the tone in the ad – causing the receiving stations to start running the commercial thinking that it is an EAS alert, and it might continue running that commercial and subsequent programming from the primary station for several minutes as there was no termination code in the commercial.  This is not the first time in recent months that this issue has arisen – only a few months ago an ad by BP for its ARCO subsidiary also contained alert tones.  While this may be a mistake by commercial advertisers aiming for reality in their some marketers, as opposed to a cynical marketing ploy to take over stations that received the signal from the primary station on which the ad was run, this type of ad could be a violation of the FCC’s rules – so broadcasters should be vigilant in policing these ads.

Section 11.45 of the Commission’s Rules states:

No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS. Broadcast station licensees should also refer to § 73.1217 of this chapter.

While this rule also refers broadcasters to Section 73.1217, the prohibition on broadcast hoaxes that might cause substantial harm, Section 11.45 is an absolute prohibition on the use of EAS tones for other than an emergency – whether or not harm is caused.  Stations need to police these ads – and advertisers themselves need to be aware that these ads are prohibited under FCC rules. 

The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission’s ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

  • For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
  • For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
  • For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. 

Continue Reading FCC Plans Hearings on Environmental Impact of Tower Registration Program – Follow Up to Court Case on Impact of Communications Towers on Birds

In yet another example of the importance that the FCC places on emergency communications and safety issues, an FCC Enforcement Bureau District Field Office issued a Notice of Apparent Liability, proposing to fine a radio station $25,000 for violations including an EAS system that was not operational, as well as a tower that needed repainting and with lights that were not functioning properly.  Together with various other issues – including missing quarterly issues programs lists – the FCC found that a $25,000 fine was appropriate.  This is another in a series of recent notices of apparent liability from FCC District Offices, demonstrating the high cost of noncompliance with technical and operational issues at broadcast stations.

On the tower issues, the FCC found that the tower lights, which were required to be flashing, were in either not operational at all or not flashing, and that the licensee admitted that no visual inspection of the lights had occurred in at least a week.  Citing Section 17.47 of the FCC rules, which require a visual inspection of tower lights every 24 hours unless there is an automatic inspection system (which was not present at this tower), the FCC found that there was a violation here.  In addition, the inspection revealed that the tower paint was faded and, in some places, had peeled to reveal bare steel, as the tower had not been painted since 1996.  Towers must be cleaned and painted "as often as necessary to maintain good visibility" under Section 17.50 of the FCC Rules.  The failure of the tower owner to monitor the tower lights resulted in a $2000 fine, and a $10,000 fine was imposed for the failure to repaint the tower.

Continue Reading $25,000 FCC Fine for Safety Related Issues – No EAS, Tower With Painting and Lighting Issues

By December 1, 2010, all commercial and noncommercial digital television (DTV) stations must electronically file an FCC Form 317 with the FCC. This Form reports whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2010.

Under the Commission’s Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis. Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.

All DTV stations — regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority — must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service. The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the FCC’s CDBS filing system.

So does the mid-term election have any impact on broadcast regulation?  While no one knows for sure what the political winds of Washington will have in store, in reading the analysis of the Tuesday election results, I was struck by the conclusions contained in one Op-Ed article in the Washington Post on the message of last week’s Mid-Term elections, and the contrast of that perceived message to an article that had run in the same pages just a week before.  The earlier article dealt specifically with the future of media in the 21st century, and the suggested that, rather than cutting back on taxpayer funding of public broadcasting, as some have suggested, the government should take more steps to provide funding.  this article suggested that there be a tax on commercial broadcasters, and the monies received from the tax should be used to fund public media.  A similar proposal had been included in a Federal Trade Commission staff discussion draft issued earlier this year in the FTC’s exploration of the effect of new technologies on newsgathering.  Both of these proposals were made in the name of providing funding to public broadcasting sources to produce more news in light of the struggles of commercial news outlets in today’s media world.  The FCC’s own Future of Media task force is expected to issue a report before the end of the year on how the government should take steps to ensure that the media in the 21st century provides citizens with the information that they need to make informed decisions on civic issues.   Proposals made in both the FTC and FCC proceedings involve everything from changes to copyright law to provide more Federal protection to news reporting, to suggestions similar to those made in the FCC’s localism proceeding for specific mandates as to how much and what kind of news and information programming licensees must provide.

The proposals for the government to get involved in making the media better stuck me as being in stark contrast to the findings of a Democratic pollster reported in Sunday’s Washington Post, finding that the voters in last week’s elections were most interested in a government that was limited and efficient.  Voters were not totally adverse to government involvement – but favored that involvement only in connection with issues where it was perceived that the action could really make a difference, and only where the involvement was clear, efficient and effective.  While this opinion piece had nothing specific to say about media regulation – if in fact the article accurately reflects the message of the election, does it make sense that the government should be getting involved in the decisions about the future of the media?  Will any regulation that comes out of these proceedings be regulation that will be efficient and effective, with a minimum of red tape?  From my discussions with broadcasters, many are afraid that it will not. 

Continue Reading The Mid-Term Election and Broadcasting – What’s the Effect on the Future of Media?

An FCC Enforcement Bureau District Office today issued a Notice of Apparent Liability, proposing to fine an AM licensee $25,000 for not having a meaningful staff presence at the station’s main studio, and for not being able to produce a public inspection file when the FCC inspectors visited the station.   The station was being operated by another party pursuant to a Local Marketing Agreement ("LMA") and, when the FCC inspector showed up, none of the employees at the main studio identified themselves as an employee of the licensee.  Not having any employees at the main studio, and the additional inability to locate a public file for the station, resulted in the FCC proposing a $25,000 fine ($7000 for the lack of employees at the main studio, $10,000 for the lack of a public file, and an upward adjustment to reach the $25,000 total as the licensee had a series of prior violations).

The fact that this station, like so many others in this time of economic upheaval, was operating under an LMA highlights what the FCC has said so many times in the past about the staffing of such stations.  A station licensee cannot just sign an LMA, and leave the station to the control of the program provider.  Instead, the licensee must oversee the operations of the station, and have its own employees physically present at the station on a day to day basis to do so.  The decision today cites a 20 year old case for the proposition that the licensee must have both management and staff presence at the station on a full-time basis to be considered meaningful.  In other cases, the Commission has said that the there need to be a manager and a staff employee of the licensee who report to the studio as their principal place of business on a daily basis, and at least one of these employees must be physically present at the station’s main studio during normal business hours.  Here, where there was no one employed by the licensee at the station when the FCC inspected it, the fine was issued.  So, if you are operating under an LMA, make sure to observe these staffing requirements, or risk a fine from the FCC.

As we wrote about about back in September, the FCC has allocated two new DTV stations in the Mid-Atlantic region, one in New Jersey — Channel 4 in Atlantic City — and one in Delaware — Channel 5 in Seaford).  With the release yesterday of its further Public Notice, the Commission has now officially slated the auction of the two new channels for Tuesday, February 15, 2011.  In the auction Notice, available here, the Commission formally adopts the rules and the minimum opening bids for the auction, setting the starting point for each construction permit at $200,000.  Applicants interested in participating in the auction will need to put at least that much on deposit in order to be eligible to bid, and will be required to start the bidding at that amount.  And while $200k is the starting point, there is no limit to the ultimate purchase price. 

Short Form Applications on FCC Form 175 must be submitted by 6:00 PM ET on December 15, 2010 in order to participate, and upfront deposits are due by 6:00 PM ET on January 21, 2010.  The FCC will hold a Mock Auction on February 11, 2011 to allow eligible bidders to test out the bidding interface, and the real thing will kick off on February 15, 2011.  As we discussed in our earlier post, given the looming issue of incentive auctions and spectrum repacking, as well as the reception issues attendant with low VHF channels, it will be interesting to see who turns out to participate in the auction, but as evidenced by the minimum opening bids, there’s still plenty of value in a full power television construction permit and the cable and satellite must-carry rights that go along with it.