Last month, the FCC released its proposal to restrict the movement of FM stations from rural areas into larger markets (which we summarized here). The proposals that the FCC has put forward would greatly restrict the ability of broadcast owners to move stations to cover larger population areas – in many senses reversing the decision of the FCC just two
Rural communities – do their radio stations need government protection? The FCC seems to think so, proposing a series of new rules and policies that restrict the ability of the owners of rural radio stations to move their stations into Urban areas. These rules would make it harder for entrepreneurs to do “move in” applications – taking stations from less populated areas and moving them to communities where they can serve larger populations in nearby cities. The Commission states that it is making these proposals to attempt to live up to its obligations under Section 307(b) of the Communications Act to ensure a “fair, efficient and equitable” distribution of radio services to the various states and communities in the country. While this may be a noble goal, one wonders if it is a solution in search of a problem. Are there really rural communities that have an unmet demand for missing radio services – and which can economically support such services? And do these proposals conflict with other goals of the new Commission, by effectively decreasing the opportunities for minorities and other new entrants from acquiring stations in major markets – by taking away move-in stations that are often the only stations that these broadcast station owners can afford in urban markets? These are questions that the FCC will need to resolve as part of this proceeding.
A Section 307(b) analysis is done by the FCC when it faces conflicting proposals, specifying different communities of license, for new AM stations or requests for new FM allotments. It is also required when an applicant proposes to move a station from one community to another, as the applicant must demonstrate that the move to the new community would better serve the objectives of Section 307(b) than would the current location of the station. In the past, the 307(b) analysis looks at several factors, or “Priorities.” These include:
- Service to white areas – when a proposed station will serve “white area,” an area where residents currently receive no predicted radio service (no “reception service” in FCC parlance).
- Service to gray areas – when a proposed station will serve areas that currently receive only a single reception service
- Provision of a first local “transmission” service – where the proposed station will be the first station licensed to a particular community, and thus the first station that has the primary responsibility to serve the needs of that community
- Other public interest factors – usually meaning which proposal will provide the service to the most people (with service to “underserved areas,” i.e. those that receive 5 or fewer “reception services,” getting somewhat more weight).
Yesterday, we briefly wrote about the FCC’s release of a notice summarizing the process that television stations need to follow as they transition to digital under the newly extended DTV conversion date. In yesterday’s post, we promised a more detailed memo summarizing the requirements that the FCC has set out. That advisory is now available here…
As we wrote on Friday, the Senate has passed the Bill that would extend from February 17 to June 12 the deadline for full-power television stations to transition to digital operations. This leaves the House of Representatives to once again consider the matter – supposedly in committee on Tuesday and perhaps by vote of the full House as early as Wednesday. In preparation for that consideration, there have been conflicting letters released by Congressmen supporting the bill and those who are oppose. The opponents claim that the ability of TV stations to transition before the end date, an option that was important to Senate Republicans who unanamously supported the extension of the transition date, may not in reality exist. The supporters of the bill point to the over 1.85 million people who are on the waiting list for the $40 coupons to be applied against the cost of DTV converters to allow analog televisions to receive digital signals after the transition. What do these letters add to the debate?
The Republican Congressmen leading the charge against the delay of the transition suggest in their letter that the ability of TV stations to transition before an extended June 12 DTV deadline is largely illusory, as they imply that most stations cannot transition until the last day because of interference concerns. They have asked the FCC to immediately provide information about how many stations would be precluded from a transition until June 12 if the date is extended. From our experience, while there are some stations that need to delay their DTV transition until some other station has changed channels, we would be surprised if most stations are precluded from doing so. Many stations are simply going to continue on the channels on which they are currently operating their DTV transitional facilities. Thus, if they are already operating their DTV stations on their post-transition channel, by definition they are not suffering from any preclusive interference issues. And the vast majority of the remaining stations are planning to operate after the transition on their current analog channel which itself, in most cases, is free from interference as the analog operation would have in most cases precluded other stations on interfering channels from operating in too close a proximity to the area served by the station. We are aware of many stations ready to transition early even if the deadline is extended until June 12, and we would think that these stations had reviewed their situations before deciding to do so, and would have been aware of interference concerns in preparation for their February 17 changeover. In some cases they may have coordinated an early change with any station that would have presented an interference issue. Thus, we would be surprised if the FCC report prepared for these Congressmen finds a great number of stations that will be forced to wait until June 12 to do their digital conversion even if they are inclined to make the change early.
On the last day of 2007, the FCC released a 108 page order detailing its rules for the final stages of the transition of US full power television stations from analog to digital, a transition that is to be completed in less than 14 months. The Third Periodic Review, as the order is titled, covers in detail the timing of required construction of the final facilities for each full power television station, as well as various details on other transition issues. While we will prepare a more detailed summary of the order, some of the more significant issues that the Commission addressed include the following:
- Established firm construction deadlines for final digital facilities for television stations which have not yet constructed those facilities. The deadlines are:
- February 17, 2009 for stations moving to a new digital channel, or to their analog channel, for their ultimate digital operations
- May 18, 2008 for stations that will remain on their current digital channel and which already hold a construction permit for their digital operations
- August 18, 2008 for stations that will remain on their current digital channel but which do not have a construction permit for their ultimate facilities
- Extensions of these deadlines will be permitted only upon a showing that the circumstances preventing construction were unexpected or beyond the control of the licensee, including zoning and financial inability – though these standards were made more limited than those that previously applied. Any extension beyond February 17, 2009 will be granted only if it meets the Commission’s tolling standards, e.g. there is litigation which must be resolved before the construction can begin or an Act of God that temporarily precludes construction.
- By February 18, 2008, each television station licensee must file a new form with the FCC, Form 387, detailing the status of construction of the digital facilities of the station, and must update the information periodically if they have not yet completed their DTV construction.
- The Commission has agreed to allow stations to receive Special Temporary Authority to operate with limited facilities, and to even cease analog broadcasting before the end of the transition or for periods of up to 30 days, if necessary to facilitate their ultimate construction, under certain specific guidelines and after prior notification that must be given to viewers.
- The current freeze on applications for increased facilities will be lifted after August 18, 2008
- The Commission adopted new interference standards for applications for improvement in digital stations
- Any digital station, whether operating as a licensee or permittee, must pay fees for any ancillary or supplementary services that they provide with their digital spectrum
- Provided a format for the station identification that must be used when a digital station uses a secondary channel to rebroadcast another station, such as a low power television station.
Yesterday’s unique Public Notice outlining Chairman Martin’s proposals for reform of the multiple ownership rules (which we summarized here) is a surprisingly restrained and limited approach to relaxation of the ownership rules – proposing to relax only the newspaper-broadcast cross-ownership prohibitions, and only in the Top 20 TV markets. Moreover, the reform would only allow the combination of a daily newspaper and a single radio or TV station, and the newspaper-TV combination would only be allowed if the TV station is not one of the Top 4 ranked stations in the market. While the extremely limited nature of the proposed relief has not stopped critics of big media from immediately condemning the proposal (see the joint statement of Commissioners Copps and Adelstein, here), much less attention has been paid to those multiple ownership issues that the Chairman’s proposal does not seem to address – including TV duopoly relief in small markets and clarifications to the radio ownership rules requested by a number of broadcasters who sought reconsideration of the changes that arose from the 2003 ownership reforms.
The Chairman’s Public Notice is itself a new approach to regulation – putting out for public comment (due by December 11) an action of the Commission just before that action is to be taken. Usually, the Commission proposes a set of rule changes in a Notice of Proposed Rulemaking, and the Notice provides time for interested parties to comment and then reply to each other’s comments. Once all the written comments are submitted to the Commission, parties and their representative often make informal visits to the FCC to argue about the suggestions that have been made, and eventually, after much consideration, the Commission’s staff writes up a decision which is vetted by the Commissioners and their staff, and voted on by the full FCC. Usually, these final decisions are shrouded in secrecy – though outlines of the proposals are often the subject of informed gossip and rumor, rarely does anyone see the full set of rules that the Commission is considering until after the decision is made.
Twice this week, the FCC released decisions denying applications proposing city of license changes for AM stations proposing to take away the only station licensed to one community and move it to another. In its order adopting simplified city of license changes (see our previous posts including those here and here), the FCC refused to change its policy of not allowing the removal of an established radio station which is the only station licensed to a community except in cases where an extraordinary showing justifying a waiver of the rules could be made. The two cases decided this week show that merely moving to a community with greater population (even one which has no other station licensed to it) will not, in and of itself, justify a waiver of the rules. Thus, stations which are the only station licensed to their communities are effectively blocked from changing cities of license without providing a "back-fill", i.e. moving another station so that it can be licensed to the community that would otherwise be abandoned.
In one case decided this week, the broadcaster proposed to move its AM station to a community that had three times the population of the one that it was proposing to leave. The Commission rejected the move, finding that the residents of the current community should be able to rely on continued service from that station. This was true even though other stations could be received in the community, as the Commission reminded licensees that their primary responsibility is to serve the needs of their city of license, and that this primary service cannot be duplicated by the secondary service provided by a station licensed to another town or city.
During a panel at the NAB Radio Show, FCC Audio Services Division Chief Peter Doyle was asked a question about the processing of FM applications filed under the new simplified process for upgrades in their technical facilities and for changes in their cities of license (see our post here for details about that process). The question dealt with rumors that the processing of certain FM applications were being delayed if the proposed upgrade would cause interference problems to any LPFM stations which would threaten their existence. We have written about our concerns that such a policy was possible, here. According to the response yesterday, these delays are indeed taking place – meaning that LPFM stations that are supposed to be secondary services which yield to new or improved full-service stations are now blocking improvements in the facilities of these full-power stations.
Doyle explained that, at the moment, there is no policy of denying the full-service station’s application – but these applications are being put on hold if they would impede an LPFM’s ability to continue to operate in order to study options as to how the LPFM service might be preserved through a technical change or through agreements to accept interference. While no final determination has been reached as to what will happen to the applications if there is no available resolution to the LPFM interference issue, he pointed to the pending rulemaking (pending for almost two years) that would give LPFM’s higher status, and in effect allow them to preclude new or improved full-service operations. There was some indication that these actions were being taken pursuant to the potential policies set out in that Notice of Proposed Rulemaking – even though these policies were simply proposals advanced for public comment and have not yet been adopted by the full Commission.