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
The Supreme Court Decision in Citizens United v. Federal Election Commission, freeing corporations to use their corporate funds to take explicit positions on political campaigns, has been mostly analyzed by broadcast trade publications as a good thing – creating one more class of potential buyers for broadcaster’s advertising time during the political season – which seems to almost be nonstop in these days of intense partisan battles in Washington and in the statehouses throughout the country. What has not been addressed are the potential legal issues that this "third party" money may pose for broadcasters during the course of political campaigns. Not only will an influx of money from non-candidate groups require that broadcasters review the contents of more commercials to determine if the claims that they make are true, but it may also give rise to the return of the Zapple doctrine, one of the few remnants of the Fairness Doctrine never specifically repudiated by the FCC, but one which has not been actually applied in over a quarter of a century. Public file obligations triggered by these ads also can not be overlooked.
First, the need for broadcasters to vet the truth of allegations made in political ads sponsored by non-candidate advertisers. As we have written before(see our post here), the political broadcasting rules enforced by the FCC allow broadcasters to run ads sponsored by the candidates themselves without fear of any liability for the claims made in those ads. In fact, the Communications Act forbids a station from censoring a candidate ad. Because the station cannot censor the candidate ad (except in the exceptionally rare situation where the airing of the ad might violate a Federal felony statute), the broadcaster has no liability for the contents of the ad. So candidates can say whatever they want about each other – they can even lie through their teeth – and the broadcaster need not fear any liability for defamation based on the contents of those ads. This is not so for ads run by third parties – like PACs, Right to Life groups, labor unions, unincorporated associations like MoveOn.org and, after the Citizens United case, corporations.
When the Low Power FM service was first authorized, it was as a "secondary service," though a recent court decision shows how that secondary status is becoming less and less a reality. A secondary service is traditionally one that can be allotted where there are no other uses for a particular frequency, and which is subject to being bumped off the spectrum should there be another demand for that spectrum by a "primary" user. LPFM stations were originally supposed to provide service to areas between full-power FM radio stations, and to be bumped off the air if there was a new FM station authorized or a change in the frequency or power of an existing station. A decision of the Court of Appeals released earlier this month , upholding an FCC order giving more protections to LPFM stations, puts this secondary service into question.
The Court decision upheld the Commission’s decision, about which we wrote here, determining that waivers of second adjacent channel interference limitations between LPFM and full power stations should be permitted to help preserve LPFM service. In addition, the Court upheld the FCC’s process in adopting a new "interim" policy which provides that, where an LPFM is providing 8 hours a day of local programming and would be knocked off the air by an upgrade or city of license change of a full-power station, the LPFM station could apply for a waiver of its secondary status, and there would be a rebuttable presumption in favor of such a waiver. If the waiver is granted, the LPFM station would be preserved, and the application of the full-power station dismissed. Thus, effectively, LPFM would no longer be secondary, but instead will have assumed a primary, protected status.
Last month, the FCC released a Public Notice requesting further comments on the proposal to increase the power of HD radio operations. We have written about that proceeding a number of times, including posts here and here. The increased power for the digital radio signals has been sought by many broadcasters who believe that current HD radio power levels do not produce strong enough digital signals to penetrate buildings and fully serve radio markets. On the other hand, other broadcasters fear that the increased power for the digital signals will create interference to existing analog stations operating on adjacent channels. Today, the FCC set the dates for the filing of these additional comments – comments are due on July 6, with replies due on July 17.
While comments have already been filed on the proposal to increase digital power, the FCC has raised a number of specific issues on which it wants comments, especially in light of the studies sponsored by NPR in cooperation with a number of other broadcasters, which seek to do a comprehensive review of the interference potential of higher powered digital operations. NPR is shooting to have that report to the FCC in September. The specific questions raised in the new FCC notice are:
- Whether the FCC should wait to decide on the power increase proposal until after the NPR study is done
- Whether current operations by radio stations operating in HD, and the various tests that have already been run, demonstrate the need for higher power operation on a permanent or provisional basis
- Whether new standards of interference to adjacent channel stations should be adopted, and if the interference should also protect LPFM stations
- Whether there should be specific procedures adopted to resolve any interference issues that do arise.
NPR Labs has announced that it is going to conduct a further study, financed by the Corporation for Public Broadcasting, of the potential of interference from a proposed increase in the power of HD Radio operations. Last year, NPR had raised issues with the proposal by Ibiquity and a number of commercial broadcasters for power…
The FCC today issued a long-awaited public notice, clarifying the relationship between FM educational stations and the analog Channel 6 TV stations that have or will be disappearing after the digital transition. As we’ve written before, the question of whether noncommercial FM stations could seek improvements in their facilities based on the imminent disappearance…
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.
At the FCC meeting held on Election Day, the Commission approved the operation of "white spaces" devices in the TV spectrum. These would be mobile, unlicensed devices that would operate on TV channels that are not used in a particular location. Many Internet users have hailed the expansion of wireless Internet opportunities that they believe that this decision will bring. While the FCC promised that these devices would protect television operations and other current uses of the TV Band, many other groups have reacted to the decision far more skeptically. All in all, we have probably not heard the end of this debate.
The full text of the FCC Order has not yet been released but, from the Public Notice summarizing the action (which came late in the day, after a several hour delay in the start of the FCC meeting), the FCC appears to have made some concessions to the broadcasters who were objecting that the tests of the white spaces devices were not able to adequately sense the presence of television signals in a way that would protect those stations. So, to protect television signals, the FCC ordered that, in addition to sensing the existence of television signals, the white spaces devices would also have to have geo-location abilities, which would check the location of the device and compare it to a database of television stations and prevent the device from operating on channels that the database shows to be occupied. Even with this capacity, organizations representing television stations do not believe that this compromise is sufficient to protect those stations.
With the final transition of television from analog to digital soon upon us, the FCC has scheduled for consideration at its November meeting two items that will address the use of the television spectrum after the transition – one designed to improve television reception, and the other viewed by television broadcasters as a threat to that reception. The potential positive development is Distributed Transmission Service ("DTS"). The other proposal – which is far more controversial – is the proposal to authorize "white spaces devices" that operate wireless devices within the portion of the spectrum that will still be used by television stations after the transition.
DTS is the proposal that would allow television stations to use more than one transmitter to reach its service area. Like the use of FM on-channel boosters, a DTS system would permit stations to use multiple transmitters located throughout their service area, each broadcasting on the same channel, but operating at a lower power than the traditional television station which usually operates from a single high-powered transmitter. The idea is that, in digital, signals distributed from lower power transmitters spread throughout the service area might be less susceptible to signal impediments from terrain and building obstacles than would a single high-power transmitter. The FCC proposed adoption of this system several years ago with little opposition, but it has languished. Some have suggested that the experience in Wilmington, where some people who lived far from the center of the market were having over-the-air reception problems, gave new impetus to DTS as one way to provide better service to these more remote areas.
Channel 6 of the television band is immediately adjacent to the lower end of the FM band. Noncommercial FM radio stations, located at the lower end of the FM band (88.1 FM to 91.9), have the potential to interfere with television stations on that channel. Thus, FCC rules require that noncommercial FM stations protect…