Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Our recent posts have been obsessed with the FCC’s regulatory fees and the issues with the CORES fee filing system miscomputing the fees for many radio stations (an issue that seemingly has now been resolved so that payments can be made by the September 26 deadline). In doing so, we have minimized our coverage of some of the other interesting decisions and regulatory activity from the FCC and other agencies that affect broadcasters. One of those actions involved the proposal of a now-silent AM station to move from the small Alabama community of Bay Minette, Alabama to another small Alabama community, Spanish Fork. The Commission issued a letter saying that they could not grant the application as the proposal would move the station from a rural area to a community within an urbanized area – the Fairhope-Daphne urbanized area. The FCC found that this move would violate the FCC’s rural radio policy unless a showing could be made that there were public interest reasons to rebut the application of the policy in this case. The letter gave the applicant 30 days to attempt to rebut the presumption against the move.
The rural radio policy was adopted more than a decade ago to, in theory, preserve program diversity in rural areas by restricting the move of radio stations into more urbanized areas through community of license changes. The policy restricts rural stations from changing their city of license to a location from which the station could place a principal city contour over 50% of any urbanized area (see our articles here and here for more details on this policy). As the proposed move in the Alabama case would allow the AM to cover more than 50% of the Fairhope-Daphne urbanized area with its proposed new 2 mv/m contour, the change would be prohibited unless a special showing can be made overcoming the presumption against such moves, even though the move would allow the AM station to cover over 250,000 more people than it currently does. The Commission notes that it also disfavors removing a second local service (a service licensed to a particular community) from a community of over 7,500 people. As Bay Minette has over 7,500 people, and the town has only one other existing radio station, the move of the AM station would also run afoul of this policy. These presumptions are very difficult, if not impossible, to overcome absent some showing that the FCC’s technical analysis is incorrect. Continue Reading FCC Applies Rural Radio Policy to Block Move of Silent AM Station to New City of License – Do We Still Need a Rural Radio Policy?
Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
March may not have any of the regular FCC filing deadlines, but there are still plenty of regulatory activities going on this month that should grab the attention of any broadcast or media company. Initially, there are several FCC proceedings in which there are dates in March worth noting.
Initially, there are comments in the 2022 Quadrennial Review of the FCC’s ownership rules. As we wrote in our summary of the issues on which comments are requested when it was released in late December, the proceeding is to look at rules including the local radio ownership rules, the dual network rule (prohibiting the combination of two of the big four TV networks), and other rules not yet resolved. The FCC is charged with determining every four years whether these rules continue to be in the public interest. Even though the FCC has never finished the 2018 Quadrennial Review examining these same issues, the FCC nevertheless asks for comments on how these rules affect FCC policies including competition, localism, and diversity. Comments in this proceeding are due March 3, with reply comments due March 20. Continue Reading March Regulatory Dates for Broadcasters – Comment Dates on FCC Ownership Rules, FTC Proposed Ban on Noncompete Agreements, and TV Captioning Rules; Higher FCC Application Fees; Daylight Savings Time Adjustments for AM Stations; and More
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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Despite the telework restrictions in place at the FCC, regulatory life goes on, with the Commission continuing to process applications and deliver decisions every day. One of those decisions released yesterday clarified the FCC’s rural radio policy, and its application to noncommercial FM stations. The rural radio policy was adopted a decade ago to preserve program diversity in rural areas by restricting the move of radio stations into more urbanized areas through city of license changes. The policy restricts rural stations from changing their city of license to a location from which the station could place a principal city contour over 50% of any urbanized area (see our articles here and here for more details on this policy). The decision yesterday upheld prior decisions in the same proceeding which concluded that, for noncommercial reserved-band stations, the appropriate contour to analyze is the 60 dBu contour. If that contour would cover more than 50% of an urbanized area after a city of license change, the change will generally be prohibited for any station not now providing such coverage over an urbanized area.
The licensee in this case had argued that this decision was illogical, as the rural radio prohibition for commercial stations is only triggered when the 70 dBu contour covers more than 50% of the urbanized area – not the 60 dBu contour. The FCC rejected that argument, saying that the policy being advocated was more appropriately raised in a rulemaking, not in an application case like this. The FCC’s finding in this case would mean that two broadcasters, one commercial and one noncommercial, could propose moves from rural locations to the same new city of license and propose to operate from the exact same antenna with the exact same power levels and height above average terrain, and the noncommercial application would be denied as it would be deemed an application for the urbanized area because its 60 dBu contour covered more than 50% of that area, while the commercial station would be granted as its 70 dBu did not reach 50% of the urbanized area. Two stations providing exactly the same service to the same urbanized area would be treated differently – one as if it serves the urbanized area, the other as if it would not.
Continue Reading FCC Clarifies Rural Radio Policy for Noncommercial FM Stations as Regulation Goes on Despite Telework Restrictions
Moving a station from a rural area into a more urban one was a fairly common occurrence until the recent recession – when the value of new "move-in" stations in many larger markets essentially collapsed. Soon after the collapse, the FCC stepped in to stop what the marketplace had already severely slowed, by effectively prohibiting the practice of moving stations into urbanized areas. In its Rural Radio Order (which we summarized here), the Commission adopted “presumptions” that eliminated preferences that applicants had received for proposing a new service to large suburban communities, and preferences based solely on the number of people that a modified station would serve. A number of parties (including ones that I represented), sought reconsideration of the FCC’s order, challenging both the theory of the FCC order and some of the details. On Friday, the FCC issued its order on reconsideration, denying any fundamental changes in the policy, but clarifying some of the details of the showings to be made in evaluating city of license changes for broadcast stations, and also grandfathering under the old rules more of the applications that were pending when the new rules were adopted.
Before discussing the changes, it is worth reviewing the Commission’s processes for deciding which of competing proposals for new FM channels in different communities should be granted, and whether the change in the city of license of an existing station is in the public interest. These choices are governed by Section 307(b) of the Communications Act and the substantial case law that has built up at the FCC around that section. Section 307(b) requires that the Commission make a “fair, efficient and equitable” distribution of radio service among the states and communities. Over the years, the FCC has adopted standards for determining how to make this distribution – favoring applications that propose a “first local reception service” (or service to “white areas” – those that currently receive no predicted service from other stations), net favoring a second reception service, next giving a preference to those providing a “first transmission service” (i.e. a first station licensed to a community). Finally, if none of the preceding preferences come into play, the Commission looks at “other public interest factors” – usually the total population served by a proposal, including an evaluation of the other services from other stations available in both the gain and loss area of a proposed facility move (or in the proposed coverage areas of the new allotments that the Commission is evaluating). Continue Reading Reconsideration of FCC’s Rural Radio Decision – Making It Difficult to Move a Radio Station from a Rural to an Urban Area
Changing the city of license of an AM or FM station is getting more difficult, based on recent FCC decisions. As we have written before, the FCC’s Rural Radio order changed the manner in which the FCC reviews city of license changes. In connection with any proposed city of license change, the FCC reviews the proposal to make sure that the change will result in a favorable arrangement of allotments, making sure that the distribution of radio channels is in the public interest. In making that decision, the FCC has relied on a series of priorities – first insuring that all areas of the country get at least two radio reception services (Priority 1 was to provide service to "white areas" that currently receive no radio service at all, Priority 2 was to provide a second reception service to all areas). The next priority was to provide as many communities as possible with their first "transmission service", i.e. a station licensed to that community that would have a primary responsibility to address its needs and interests. Finally, if there was no proposal to provide a first or second reception service or a first local transmission service, the FCC looked at Priority 4 factors, i.e. other public interest matters. In the past, service to a greater number of people itself was a Priority 4 consideration. Based on a case released last week, service to a greater population apparently is no longer be viewed as justification for the change in the city of license of a radio station – even if the proposed move is from a rural community that already has a significant amount of service to a similarly well served urbanized area and results in a significant increase in the population served by the station.
The Rural Radio order changed the Priority 3 preference for a first transmission service by determining that any proposal for a city of license within an urbanized area would be viewed as being a proposal for service to the entire urbanized area (meaning that, instead of being a first local service to a named community, all the stations in the urbanized area would be considered as serving the same city). Thus, a proposal to take a station from a rural area (e.g. proposing to take the third radio station from some smaller rural town) to a city without a service in a urbanized area would no longer be viewed as providing the first local transmission service to the suburban community (but would instead be viewed as being a proposal to provide just another service to a metro area that probably already has many stations that are licensed to the various communities in the urbanized area). Some had thought that, while Priority 3 would no longer justify such a move, a Priority 4 preference would be available if the move would allow the station to serve a much larger population, and if any loss area was already well served. In the proposed move discussed last week, the Commission relied on language in the Rural Radio Order that stated that population increases alone would not be enough to justify a city of license change when a station proposed to move into an urbanized area. In this case, the Commission’s staff found wanting a proposal to move from the well-served community of Boone, Iowa to a community in the Des Moines urbanized area – even though the proposed change would result in service to over 300,000 more people than are currently served by the station – increasing the number of people served by the station from less than 100,000 to over 400,000. The request was not denied outright, but instead the applicant was given another opportunity to supply additional information to demonstrate the public interest benefits that would result from the move. Continue Reading FCC Makes Changing City of License of Radio Stations More Difficult
In addition to the normal FCC deadlines for routine filings, January brings the deadline for comments in a number of FCC proceedings, and a filing window for new FM applications. For TV stations, the Commission recently extended to January 17 the Reply Comment deadline on its proposals (summarized here) for an online public inspection file. …
Changing the city of license of a broadcast station was made more difficult by the FCC’s rural radio order. That order, about which we wrote here, imposed substantial obstacles on broadcasters attempting to move their stations from rural areas into urbanized areas – making such moves difficult if not impossible in many cases. …
