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As part of the Local Community Radio Act which, among other things, repealed restrictions against protecting full-power FM stations from third-adjacent channel interference from LPFM stations, Congress required that the FCC conduct a study of the economic impact that such stations will have on full-power FM stations.  The FCC began the process of conducting that study, asking for public comment on a series of questions designed to look at that impact.  Comments are due on June 24, 2011, with reply comments to be filed by July 25.  The Commission asks for comments in two general areas, asking what impact LPFM will have on full-power stations’ revenues and on their audience share, but tentatively decided that it would not look at any economic impact that interference from LPFM would have on full-power stations.

What led the FCC to this tentative conclusion?  The FCC said that the Act did not specifically require any study of the economic impact of interference and, since the principal purpose of the Act was to set out how the FCC should deal with interference remediation, Congress had already addressed all that needed to be considered about any potential interference.  This view was bolstered by the inclusion in previous legislation of a specific directive to study interference, which led to the report from the MITRE  Corporation.  That report concluded that there would be no substantial interference from LPFM to full-power stations, which opened the door to the passage of the Act.  Thus, the Commission reached the tentative conclusion that no additional study of the economic impact of LPFM was necessary, but they seek comment on that tentative conclusion.  We expect that there will be such comments.Continue Reading FCC to Study Economic Effect of LPFM on Full-Power FM – But Not the Economic Impact of Any Interference that May Be Caused

The start of the FCC’s license renewal cycle for radio stations is close at hand, and we have issued an advisory to help radio stations prepare for the process.  A copy of the advisory is available here, and contains information about the pre- and post-filing announcements that stations are required to air, as well…

The FCC’s decision in its rural radio proceeding addresses numerous radio issues – some of which seem to provide a solution in search of a problem.  In an era where the President has called for agencies to review their decisions to access how they will affect businesses and job creation, some aspects of this rural radio decision appear to be moving in the opposite direction – imposing new hurdles on broadcasters trying to improve their operational facilities. While the FCC in this decision adopted largely uncontested rules that would promote the development of new radio stations on Tribal lands, the Commission also adopted rules making it harder for radio stations to move from more rural areas into more urban ones – rule that were almost universally condemned by broadcasters. The decision also restricted the ability of FM translators to “hop” from the commercial to the noncommercial band and vice versa, and adopted rules that codified the determination of how AM applications are determined to be “mutually exclusive” when filed in the same window for new or major change applications.  The changes to the procedures for consideration of AM and FM station allotment and movement are summarized below.  The other changes made in this proceeding will be discussed in a subsequent post on this blog.

Easily the most controversial of the decisions made by the Commission in this proceeding was the conclusions reached as to the movement of AM and FM radio stations from more rural areas into more urbanized ones.  We wrote about some of the concerns raised by broadcasters last week.  Many of the new rules and policies adopted by the Commission were ones feared by broadcasters – though many of the policies are still undefined, and how they are enforced may well determine their ultimate impact.  That impact may well take years to sort out.  Regardless of the ultimate impact on the actual movement of stations, there is no question that these rules will require far more paperwork from broadcasters seeking to allot new channels and from those seeking to change the cities of license of existing stations, and open more moves to challenge, making the process slower and more expensive.Continue Reading FCC Adopts Rules Restricting Rural to Urban Radio Moves and Translator Band Hopping – And Adopts Tribal Area Preferences

At the FCC meeting next week, the Commission will be considering an item dealing with radio stations that serve rural areas, and the ability of licensees to make technical modifications to those stations that would change the communities which they serve.  While, as we wrote last week, most of the attention of broadcasters has centered on the television issues to be considered at the meeting as the Commission is to begin an inquiry on the retransmission consent process.  The rural radio issue poses real concerns for radio operators – especially those contemplating a move of a radio station from a community outside of a metropolitan area to one in a metro.  In the name of protecting service to rural areas, the Commission may well restrict minority groups, specialty programmers, and other new entrants from bringing new services to metropolitan areas – permanently entrenching those companies who currently have major market stations as the only competition in those markets.  A proposal to protect service to rural areas may well have the impact of decreasing diversity in large markets.

In virtually every large market, there is little or no potential to add new channels for FM service both because of interference protections that need to be accorded to stations in the market and because of protections to stations outside of the market but close enough to be short-spaced to any potential station in the metro area.  In some cases, creative engineering has found ways for some of these non-metro stations to be moved into the metropolitan area, or at least close enough to provide some service to those markets.  "Move-in stations" have allowed new entrants, some with specialized programming, to provide service to large cities – when such entrants could never afford the price of an existing in-market station, even if one was for sale.  Even "rim shots", those move-ins that don’t provide full coverage of a metro area, may be very worthwhile for groups with unique formats (religion, Spanish language, and other targeted programming) trying to reach a small audience that is not otherwise going to get service in such markets.   Continue Reading Restrictions on Moving Radio Stations From Rural to Urban Areas May Be Coming – What’s The Potential Impact?

After a series of FCC meetings where the only mention of broadcasters was in connection with taking TV spectrum for wireless broadband, the tentative agenda for the next FCC meeting, to be held on March 3, 2011, is full of broadcast issues – issues that could have broadcasters wishing that they were ignored once more.  The biggest issue is the initiation of a proceeding to re-examine the retransmission consent process by which television broadcasters negotiate with cable and satellite companies for payment for the carriage of their signals.  But also on the agenda are proceedings to look at rural radio services and whether the Commission should limit the ability of broadcasters to move stations from rural to urban areas, and the initiation of a proceeding to require that television programmers provide audio descriptions of the action taking place on the video portion of their programs to aid those who are visually impaired.

The retransmission consent proceeding is one which arises after several well-publicized cases where television stations and multichannel video program distributors (like cable and satellite television providers) have had disputes about the amount to be paid to the television broadcaster for the carriage of their signal by the MVPD.  In a few cases, this has resulted in the television station being pulled from the MVPD for some period of time until the dispute can be resolved.  Some MVPDs have argued that there should be more oversight over the process by which television stations can force the MVPD to pull the station’s signal until the retransmission negotiation is completed.  MVPDs argue that viewers, who can get the signal over the air as it is made available by the TV station for free, should not be held hostage to the negotiations and should not suffer when the station is pulled from the MVPD to further the TV station’s negotiation posture.  Broadcasters, on the other hand, argue that the system is working, that the number of stations who have been pulled from an MVPD is few, and that the MVPD should pay for the valuable television signal, just as it pays for other programming that it carries from cable networks.  The FCC is expected to ask whether some reform of the process, and perhaps some government oversight or mandatory mediation, should be required.Continue Reading Next FCC Meeting Full of Issues for Broadcasters – Retransmission Consent, Moving Rural Radio Stations Toward Urban Areas, and TV Video Description

The FCC is now accepting Form 175 applications for FM Auction 91 – an auction of 144 new FM channels across the country.  Applications are due between now and February 10.  We wrote about the auction here, and the list of channels to be auctioned is available here.   So, if you are interested in a new FM channel, act now!

While this auction is proceeding, in a recent case, the FCC addressed what to do with new FM channels that are not yet set for auction.  The FCC regularly receives petitions for rulemaking, seeking the addition of new FM channels.  Once allotted, these channels may sit on hold for a year or more before being listed for an auction like that now starting.  There are many such channels awaiting auction now, and not included in Auction 91.  During that period between auctions, owners of existing stations may find that these vacant allocations block upgrades or other changes that the owners may want to make to their existing stations.   Until recently, the existing licensee could suggest changes to the new allotments while they were sitting there waiting to be put out for auction – changes including restricting the transmitter site location for that new channel, changing the city of license for the allotment, downgrading it, or even deleting the channel altogether.  As set forth in the recent case, the policy has been to entertain these proposals, unless there was a showing that there was a party ready to file for the vacant allotment.  In the recent case, the FCC decided that no future proposals to change vacant allotments would be entertained, as the Commission believes that all channels have someone who is interested in the channel, or there will be an interested person when the next auction begins.  This policy will govern all future proceedings, with the limited exception that the FCC will entertain a change in frequency for a new allotment, as long as no other changes are made in that allotment (i.e. it stays at the same location and will continue to be able to operate with the same power).Continue Reading As Applications for New FM Auction Are About to be Filed – FCC Clarifies Rules on Changes to New Allotments

Applications to participate in the auction of 144 new FM channels are to be filed at the FCC between January 31 and February 10, 2011.  The FCC today released a Public Notice setting out the dates and procedures to be used in the auction.  Upfront payments of the minimum bids for channels in the auction will be due on March 21.  The auction itself will begin on April 27 – a postponement of about a month from the dates originally proposed as the initially scheduled dates could have resulted in the auction running through this year’s NAB Convention, making it difficult for some entities to participate.  We had written about the initial announcement of the proposed auction here.  Note that the list of channels available in the auction has changed slightly, as a few channels originally listed for sale were deleted when it was discovered that they were not vacant or were otherwise not available to be sold.  Thus, the auction will include only 144 channels, not the 147 originally proposed.  The list of open channels is available here, and this list also sets out the minimum bids established for each channel.

To freeze the FCC database so as to allow applicants in the filing window to specify a transmitter site that will be protected from new applications, the FCC will freeze the filing of all applications for minor changes to existing FM stations during the filing window.  Thus, if you need a technical change in an FM station, get that application on file before the January 31-February 10 window.  The FCC Issued a Public Notice setting out the details of the freeze.  After the window, all subsequently filed applications for minor changes in existing stations will need to protect sites specified for the new channels during the window.  The FCC also froze – effective right now – any rulemaking proposal asking for a change in the coordinates assigned to any of the channels to be sold in the auction. Continue Reading FCC Announces Filing Window and Minimum Bids for Next Auction for 144 New FM Stations – And a Freeze on FM Minor Change Applications

The NAB Radio Show in Washington two weeks ago was a upbeat reflection of the present state of the broadcast industry.  But sandwiched around that conference, in the last three weeks, I have spoken at three digital media conferences – and as someone who has grown up on over-the-air radio, and based a career on representing radio stations, the discussions at these conferences raised many questions about the future of the radio industry. At the Radio and Internet Newsletter (RAIN) Summit East in DC, prior to the NAB Radio Show, I gave a summary of the royalty issues facing Internet Radio operators. At the Future of Music Policy Summit in DC the next week, I spoke on a panel on the Future of Radio. And at the Digital Music Forum West in Los Angeles last week, I moderated a panel on music licensing issue for digital media companies. At each of these conferences, the focus was on the digital media, not on over-the-air broadcasting, and many times the question was raised as to whether traditional radio was still relevant in the digital age. I’m not sure how many times I was asked, when I told someone that I am a lawyer who represents radio stations, what I plan to do next when my clients are extinct? Even in media-related industries, many seem to regard radio broadcasters as old-school – a throw back to some other entertainment era. Yet, what surprised me was how these same people who questioned the relevance of radio were all able to talk about what songs were or were not being played on the local rock station, or about the crazy thing some local DJ said that morning and the contests running on radio stations in their market, or about the story on NPR that kept them in their car seats when they were sitting in their driveway at home the night before.

At each of these conferences, in listening to the discussions of the issues facing all the new media (like how to make money), the dark view of radio seemed overblown.  Radio still seems to be a vital medium, especially if it can emphasize the advantages that it has. Harnessing the power of radio with digital media creates platforms that neither has on its own. In many ways radio, of all the traditional media, is best able to use its place in the media landscape to expand in the digital world. Radio has always excelled in reaching niche audiences, in much the same way that the Internet now does. By playing to its strengths, whether that be music, news, talk or sports, or some combination thereof, radio can expand its connection and provide broader and deeper services to its listeners, and serve its audiences like never before.  And all the digital media companies seem to recognize this potential, but seem to be discounting radio’s ability to capitalize on its advantages. Continue Reading Reflections on the State of Radio – A Month of Discussions at The Radio Show, State Broadcasters Meetings and Digital Media Conferences

Interested in a new FM radio station?  Now might be your chance.  The Commission today announced an upcoming auction, designated as FCC Auction No. 91, offering licenses for 147 new FM channels in various communities across the country.  The auction will begin on March 29.  Today’s public notice merely lists the channels to be auctioned and the proposed minimum bid in the auction to be associated with each channel, and asks for comments on the procedures that will apply in conducting the auction.  We would expect that applications to participate in the auction will probably be due sometime in or around January, 2011.  The list of the 147 licenses to be offered for sale is available here.  The FCC Public Notice asking for comment on the auction procedures is available here. 

Parties who are interested in bidding for any of these channels will be able to submit short form applications indicating the channels in which they are interested.  As stated above, we would expect these applications will be due sometime early in 2011, so that the FCC can process those applications and receive the necessary upfront payments from parties interested in the auction in time for the auction itself to begin in March.  Thus, parties who are interested in any of these channels should start their due diligence process now, and determine which channels may be of interest, and which channels can actually be built in such a way as to cover areas that an applicant may want to serve, so that they can be ready to file their applications.Continue Reading FCC Plans March Auction for New FM Stations – 147 New FM Licenses for Sale

In 2006, the FAA proposed requiring that many communications users seek FAA No Hazard Determinations not only before they make changes in the height of a tower, but also prior to frequency or power changes.  The FAA sought to review applications to determine if proposals would create any interference to frequencies used by the by aircraft and by the FAA for air navigation purposes. This review would be in addition to any review that the FCC made of interference considerations.  Many communications companies and engineering firms argued that this second layer of frequency review was unnecessary; and certain engineering groups contended that the FAA’s interference programs were not accurate – finding interference where none existed.  After over 4 years of consideration,the FAA has now decided that most of the frequency blocks that it was considering did not really pose a threat to air navigation, with one exception.  The FAA determined that interference problems do arise from FM operations, and thus the FAA did not dismiss their proposal to require its approval of FM changes – even where no tower height changes are planned.

The FAA, however, apparently will not be making this decision alone.  Instead, that FAA is coordinating with the FCC and NTIA (an Administration in the Commerce Department that coordinates between various government agencies that use spectrum) to adopt policies that will govern the potential for interference from FM stations to FAA operations.   The FAA’s Notice says that more information about what is to be proposed for FM stations should be forthcoming soon.  This can be a real issue for FM stations, especially ones proposing significant power increases or frequency changes in congested metropolitan areas with numerous public, private and military airfields in the vicinity. Continue Reading FAA Working On Proposals to Require FAA Coordination For FM Changes Even Where There is No Change in Tower Height – Rejects That Requirement for Other Services