All commercial broadcasters (AM/FM/TV and even LPTV) have to file their Biennial Ownership Reports on December 1, beginning a very busy month in the broadcaster’s regulatory world.  December 1 is also the deadline for noncommercial ownership reports to be filed by noncommercial radio stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont, and noncommercial television stations in Colorado, Minnesota, Montana, North Dakota and South Dakota (see our Advisory here)Annual EEO Public File reports are also due to be in station files for stations in all of the states where noncommercial stations have ownership filings (see our Advisory on the EEO Public File Report here).  License renewals for radio broadcasters in Georgia and Alabama are also due on that date (see our License Renewal advisory here) , as are the Commission’s cut of the ancillary and supplementary revenues made by digital television broadcasters (our summary here).  And all full-power broadcasters need to file their reports on the results of the recent Nationwide EAS Test by December 27 (see our post here).

December also brings a Commission meeting, at which the CALM Act rules will be adopted according to the tentative agenda for the December 12 meeting.   The CALM Act is intended to eliminate loud commercials.  These rules are required by statute to be adopted in December (see our summary of the proposed rules here).  Comments on a number of other FCC proposals in rulemaking proceedings are also due. The FCC just announced  that comments in the proceeding to determine if FM digital operations using the IBOC technology (so-called HD Radio) can operate with different power levels on each side of the main channel are due by December 19 (see our summary of this proceeding here). Comments on the controversial proposal for the online public inspection file for television stations are due on December 22.


Continue Reading December 1 Deadline for Biennial Ownership Reports Begins A Busy Regulatory Month for Broadcasters

The FCC adopted rules for the digital operation of FM radio stations (known as HD Radio or the Ibiquity In Band On Channel system – IBOC for short) in 2007 and allowed the Media Bureau to amend those rules as technical developments warranted.  In 2010, the Bureau authorized an increase in the power level of the digital portion of

In a recent decision, the FCC made clear that analog FM translators can rebroadcast the signal of a HD digital multicast channel from a commonly owned FM station.  For months, broadcasters have been introducing "new" FM stations to their communities via translators rebroadcasting HD-2 signals which are broadcast digitally on a primary FM station, and available only to those who have purchased HD radio receivers.  In the decision that was just released, the Commission’s staff rejected an objection to the use of an FM translator taking a signal that can only be heard on a digital HD Radio and turning it into an analog signal capable of being received on any FM receiver.  In this case, the broadcaster rebroadcast his AM station on the FM HD station so that it could then be rebroadcast on the FM translator.  But, even if the HD multicast channel was a totally independent station that could otherwise only be heard on an HD digital radio, it could be rebroadcast on the FM translator and received by anyone with an FM radio in the limited area served by the translator station. 

The Commission did make clear, however, that a broadcaster cannot use another station owner’s HD multicast channel and rebroadcast that on a translator if the broadcaster already owned the maximum number of stations allowed by the multiple ownership rules.  In other words, if a broadcaster is allowed by the multiple ownership rules to own 4 FM stations in a market, it could put a fifth (low power) FM signal in that market through the use of an FM translator rebroadcasting one of its own HD multicast signals.  However, if it had not itself converted its FM stations to digital so that it had its own multicast abilities, it could not do a time brokerage agreement and program the multicast signal of another broadcaster in town who had installed the digital equipment needed to do such multicasts.  An LMA or time brokerage agreement with another station for use of an HD multicast channel counts for multiple ownership purposes in the same way that such a programming agreement would if it provided for programming of a primary analog  FM station. 


Continue Reading FM Analog Translator Can Rebroadcast FM Digital Multicast Programming – Opportunities for New Signals in Local Markets

The FCC’s January 2010 Order authorizing FM radio stations to increase power on their hybrid digital radio operations was published in the Federal Register on Thursday establishing the effective date of the new rules as May 10th.  As we wrote earlier, the Commission’s Order allows stations to increase from the current maximum permissible level of one percent

This afternoon the Commission released an Order authorizing FM radio stations to increase power on their hybrid digital radio operations. This power increase is a welcome boost to HD radio operations and was eagerly awaited by many FM stations broadcasting in digital.  In a nutshell, the rule change allows stations to increase from the current maximum permissible level of one percent of authorized analog effective radiated power (ERP) to a maximum of ten percent of authorized analog ERP.  In raising the power permitted for digital radio operations, the Commission acknowledged that the current digital power levels are insufficient to replicate stations’ analog coverage and that indoor and portable coverage are particularly diminished.  Building on proposals advocated by National Public Radio (NPR) and iBiquity, the Commission has provided for an immediate voluntary 6 dB increase in Digital ERP (except for super-powered FM stations, as discussed below).   In addition, stations will be allowed to seek authority for increases over 6 dB up to a maximum of 10 dB using an informal application process.

Once the Order becomes effective, eligible FM stations may commence operations with FM digital operating power up to -14 dBc (that is, up to a 6 dB increase), consistent with the existing IBOC notification procedures.  Stations availing themselves of the voluntary power increase must notify the FCC electronically of the increased digital power within 10 days of commencement using the Digital Notification form via the Commission’s Consolidated Database System (CDBS).   The exception to this is super-powered FM stations, which, regardless of their class, are limited to the higher of either the currently permitted -20 dBc level or 10 dB below the maximum analog power that would be authorized for the particular class of station, as adjusted for the station’s antenna height above average terrain.   The Audio Division’s web site contains an FM Super-Powered Maximum Digital ERP Calculator available here to assist super-powered stations with determining the maximum permissible Digital ERP.  Licensees of super-powered FM stations must file an application, in the form of an informal request, for any increase in the station’s FM Digital ERP. 

For power increases over 6 dB, licensees will be required to submit an application to the FCC, in the form of an informal request, for any increase in FM Digital ERP beyond 6 dB. Licensees wishing to operate with an FM Digital ERP in excess of -14 dBc must make a calculation and determine the station’s max permissible Digital ERP as detailed in paragraphs 17 through 20 in the Order, available here.  


Continue Reading FCC Gives Digital FM Radio a Power Boost

Another year is upon us, and it’s time for predictions as to what Washington may have in store for broadcasters in 2010.  Each year, when we look at what might be coming, we are amazed at the number of issues that could affect the industry – often issues that are the same year to year as final decisions are often hard to come by in Washington with the interplay between the FCC and other government agencies, the courts and Congress. This year, as usual, we see a whole list of issues, many of which remain from prior years. But this year is different, as we have had a list topped by issues such as the suggestion that television spectrum be reallotted for wireless uses and the radio performance royalty, that could fundamentally affect the broadcast business.  The new administration at the FCC is only beginning to get down to business, having filling most of the decision-making positions at the Commission.  Thus far, its attention has been focused on broadband, working diligently to complete a report to Congress on plans for implementation of a national broadband plan, a report that is required to be issued in February.  But, from what little we have seen from the new Commission and its employees, there seems to be a willingness to reexamine many of the fundamental tenants of broadcasting.  And Congress is not shy about offering its own opinions on how to make broadcasting "better."  This willingness to reexamine some of the most fundamental tenets of broadcasting should make this a most interesting, and potentially frightening, year. Some of the issues to likely be facing television, radio and the broadcasting industry generally are set out below.

Television Issues.

In the television world, at this time last year, we were discussing the end of the digital television transition, and expressing the concern of broadcasters about the FCC’s White Spaces decision allowing unlicensed wireless devices into the television spectrum. While the White Spaces process still has not been finalized, that concern over the encroachment on the TV spectrum has taken a back seat to a far more fundamental issue of whether to repurpose large chunks of the television spectrum (if not the entire spectrum) for wireless users, while compressing television into an even smaller part of what’s left of the television band – if not migrating it altogether to multichannel providers like cable or satellite, with subscription fees for the poorest citizens being paid for from spectrum auction receipts. This proposal, while floated for years in academic circles, has in the last three months become one that is being legitimately debated in Washington, and one that television broadcasters have to take seriously, no matter how absurd it may seem at first glance. Who would have thought that just six month after the completion of the digital transition, when so much time and effort was expended to make sure that homes that receive free over-the-air television would not be adversely impacted by the digital transition, we could now be talking about abolishing free over-the-air television entirely? This cannot happen overnight, and it is a process sure to be resisted as broadcasters seek to protect their ability to roll out new digital multicast channels and their mobile platforms. But it is a real proposal which, if implemented, could fundamentally change the face of the television industry.  Watch for this debate to continue this year.


Continue Reading Looking Into the Crystal Ball – What Can Broadcasters Expect from Washington in 2010?

The US Court of Appeals for the District of Columbia Circuit today issued a decision basically upholding the royalty rates set by the Copyright Royalty Board due under Section 114 of the Copyright Act by satellite radio operators for the public performance of sound recordings.  The CRB decision, setting royalties for the years of 2007 to 2012, established rates that grew from 6% to 8% over the six year term. As we explained in our post, here, the Board looked at the the public interest factors set out by Section 801(b) of the Copyright Act, factors not applicable to Internet Radio royalties, in reaching the determination these royalties.  Particularly important was the factor which took into account the potential impact of the royalties on the stability of the businesses that would be subject to the royalty, resulting in a reduction of the perceived fair market value of the royalty from what the board determined to be about 13% of gross revenues to the 6-8% final royalty set by the Board.  The Court upheld the Board’s reasoning, rejecting SoundExchange’s challenge to the decision, though the Court did remand the case to the Board to decide the proper allocation of the royalty to the ephemeral rights covered by Section 112 of the Copyright Act.

What was perhaps most interesting about the Court’s decision was the concurring opinion of one of the three Judges, who stated that the fact that the Board’s judges were appointed by the Librarian of Congress, and not by the President, "raises a serious constitutional issue."   This was the same issue raised by Royalty Logic in challenging the constitutionality of the CRB in the webcasting proceeding (see our posts here and here).  The Judge concurred in the majority decision as none of the parties to the satellite radio case raised the constitutional issue, but this very question was squarely raised in the webcasting proceeding, and thus may well be resolved in the decision on that appeal.


Continue Reading Court Upholds Copyright Royalty Board Decision on Satellite Radio Royalties, But Questions Board’s Constitutionality

I just finished speaking on a panel at the Radio Ink Convergence ’09 conference in San Jose.  My panel was called "The Distribution Dilemma: Opportunities, Partnership and Landmines."  As the legal representative, my role was, of course, to talk about the landmines.  And one occurred to me in the middle of the panel when a representative of Ibiquity, the HD Radio people, about one of the opportunities available for the multicast channels available in that system, where an FM radio operator can, on one FM station, send out two or three different digital signals.  The particular opportunity that was discussed was the ability to bring in outside programmers to program the digital channels, specifically talking about a recent deal where a broadcaster had entered into a deal with a company that would be brokering a digital channel in major markets, and programming that station with a format directed to the Asian communities.  Broadcasters are generally familiar with the fact that, when they broker their traditional analog broadcast station to a third party, the licensee remains responsible for the content that is delivered in that brokered programming – e.g. making sure that there are no payola, indecency, lottery or other legal issues that pop up in that brokered programming.  Broadcasters need to remember that that same responsibility applies to multicast streams, whether they are on HD radio or on a multicast stream broadcast by a digital television station.  These stream are over-the-air broadcast channels subject to all FCC programming rules.

Foreign language programming has traditionally presented programming issues for broadcasters.  In the 1970s and 1980s, there were multiple cases where broadcasters actually lost licenses because there was illegal activity taking place in brokered programming.  In these cases, the programming contained illegal content and the licensee had no way to monitor the content of the programs as the licensee had no one on staff who spoke the language in which the programming was produced.  The FCC basically said that the licensee had the responsibility to be able to monitor all programming broadcast on its station – so they had abdicated their responsibility to keep the station in compliance with FCC rules by not knowing what was being said in the brokered programming.


Continue Reading Caution on Multicast Streams – Remember It’s Still Over-the-Air Broadcasting