FM Licensee Says "Optimization", Audio Division Says "Directionalization"

Dramatic “optimizing” of FM antenna gets the hairy eyeball from the Audio Division

In the FM radio world, there are supposed to be only two kinds of antennas: directional and non-directional. While it has long recognized that that simplistic, idealized notion is not entirely valid, the Audio Division hasn’t acted on that recognition – until now.

In a decision that likely disappointed at least one Texas FM licensee, the Division has ordered that licensee – whose station is licensed to operate, nondirectionally, with ERP of 100 kW – to explain why its license shouldn’t be changed to specify directional operation. Such a change would result in a reduction by more than half (from 25 kW to 9.1 kW) of the station’s transmitter output power.

Non-directional antennas (a/k/a/ “non-D’s” or “omni’s”), of course, are supposed to transmit an equally strong signal in all directions. On the other hand, directionals – or “DA’s” – are designed to produce a signal that is stronger in some directions than others. They come in handy when a station needs to avoid interfering with a co- or adjacent-channel station in one direction.

But things are not as simple as they might appear – mainly because, thanks to technical considerations, omni antennas do not necessarily provide an idealized circular signal contour. Perhaps most obviously, if a non-directional antenna is mounted on the side of a tower, rather than the top, the interaction of the signal with the tower structure itself can distort the signal in a number of ways. Recognizing this, antenna manufacturers have sought to adjust some omni’s to “optimize” their performance, i.e., to counteract such distorting effects.

But once you start down the “optimization” road, things can leave the rails pretty quickly.

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One-A-Day Sponsorship IDs?

FCC invites comments on proposal by coalition of nine radio licensees to shift sponsorship IDs primarily to Internet

In an unusual petition that was filed last November – but took five months to hit the FCC’s public radar screen – a group of radio station owners is asking the Commission to waive the sponsorship identification requirements for a “defined class of qualifying radio broadcasters”. While the prospects for a grant of the requested waiver may be limited (because it may be asking for something the FCC can’t provide), the fact of the request itself raises some interesting questions.

The petitioners, who call themselves the Radio Broadcasters Coalition, consist of nine companies, including several major radio group owners – iHeart Media (née Clear Channel), Emmis, Cox, Entercom, Greater Media, among others. According to the FCC’s summary, they would like the Commission to let “radio broadcasters airing music or sports programming … provide information about sponsored material through a combination of less frequent on air announcements together with enhanced online disclosures.”

Under the proposal, a qualifying radio station would, after a three-week “listener-education” period, have to make on-air sponsorship ID announcements only once each day (sometime between 6:00 a.m. and 7:00 p.m.), notifying listeners generally that (a) some programming on the station had been sponsored by certain identified sponsors and (b) listeners can find more details on the station’s website. At its website, each qualifying station would have a page, specifically accessible through a tab or link identified as “Enhanced Disclosure of Sponsored Programing”, containing “enhanced” sponsorship ID information. Such information would include a list of the names of sponsors, the names of the programs in which the sponsored material had aired, a list of the artists and music (or sports teams) affiliated with particular sponsor entities, and the types (but not amounts) of payments/services exchanged between sponsors and the station.

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Update: TIS Tweaks Tweaked

Technical Content Alert!!! The rule changes discussed below are highly technical. If you’re OK with stuff like “attenuation [must be] greater than the attenuation at 1 kHz by at least: 60 log10(f/3) decibels, where ‘f’ is the audio frequency in kHz”, you should have no problem. Others should proceed with caution.

A couple of years ago we reported on a number of changes made by the FCC to its rules governing Travelers' Information Stations (TIS), the first changes to the TIS rules since TIS were established in 1977. Now those changes have been tweaked, although not as much as some might have liked.

As noted above, the tweaks are highly technical, so much so that we won’t go into detail here. (There's a reason we chose law school rather than a career in engineering.) TIS cognoscenti should take a close look at the FCC’s decision for the real nitty-gritty. To summarize:

The filtering requirement for TIS has been changed from 3 kHz to 5 kHz. The expectation is that this should improve the quality of TIS signals to match commercial AM station signals – but TIS operators who might prefer, for whatever reason, to continue to use 3 kHz filters may do so. (The Commission declined to eliminate the filtering requirement entirely.)

The roll-off curve relative to signal attenuation has been adjusted in light of the changed filtering requirement.

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FCC Flexes Its Indecency Muscle - Despite Long Hiatus and Unclear Standard

Apparently horrified by a three-second video clip inadvertently aired during newscast, FCC slams licensee with $325K fine

It’s been a while since we checked in on the FCC’s indecency policy. When last we did, the constitutionality of that policy remained unresolved (and, in the minds of at least two Supreme Court justices, seriously in doubt). And the FCC had cryptically announced that it had re-jiggered the policy in some undescribed way(s) that permitted the Commission to summarily dismiss (apparently in a matter of minutes, if not seconds) a million or more indecency complaints that had been sitting around for years. And the Media Bureau had invited comments on possible, unspecified, revisions to the policy.

In other words, things on the indecency front seemed as muddied as ever.

So it was something of a surprise to hear that the Commission had suddenly lowered the boom on a Roanoke, Virginia TV station, fining it the maximum – $325,000 – for a single three-second instance of alleged indecency, the broadcast of which, during a 2012 newscast, was admittedly unintended. It looks like the FCC wants to send a signal to broadcasters.

The facts are relatively straightforward.

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Getting Rulemaking Petitions On File Online

 New option allows filing of petitions for rulemaking through ECFS.

 If you’re planning on filing a petition for rulemaking with the FCC but you’re out of paper, or maybe your printer is low on toner and the local Kinko’s is closed, we’ve got good news for you. The Commission has announced that petitions for rulemaking may now be filed electronically!

As we reported last December, the FCC has been tweaking its Electronic Comment Filing System (ECFS) to accommodate a wide range of electronic filings that previously could be filed only on paper. Thanks to those efforts, ECFS will now accept rulemaking petitions along with the other non-docketed filings we listed in our December post.

The drill for petitions for rulemaking is essentially the same as for other non-docketed filings:

  1. Go to the ECFS home page;
  2. Click on the “Submit a Non-Docketed Filing” link in the list of “ECFS Main Links” (top left corner of the screen);
  3. From the first drop-down menu, select the FCC “inbox” to which your filing is to go – for a rulemaking petition, that would be (unsurprisingly) “Section 1.401 Petition for Rulemaking”; from the “Filing Type” drop-down, pick “Petition for Rulemaking”;
  4. Complete the rest of the form;
  5. Upload the document you want to file;
  6. Click the “Continue” button;
  7. Follow the remaining prompts.

You’ll know that you’ve successfully navigated the maze when you see a confirmation screen with a unique confirmation number. (Practice tip: It’s always a good idea to make and keep a screen grab copy of the confirmation screen, just in case any question ever arises.)

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Now Available: Kevin Goldberg on Music Licensing - The Online Version

Frequent CommLawBlog contributor and copyright guru Kevin Goldberg (that's his smiling face next to the post) presented a 90-minute webinar on “Everything You Wanted (or Needed) to Know About Music Licensing, But Were Afraid to Ask” on March 25. Kevin covered the full landscape of licensing issues for broadcasters and webcasters – his PowerPoint was more than 75 pages long, for crying out loud (but trust us, as Kevin took us all through it, it was highly accessible).

We promised all attendees that we’d be providing a link to the recording of the Swami’s show, and here it is. This will get you the audio and video. Even if you didn’t happen to be one of the lucky attendees, we welcome you to check it out (but you’ll have to register by providing your name and email address).

Also, if you want a copy of the PowerPoint slides, you can access one here. It provides an excellent reference guide for anyone using music for broadcasting or webcasting.

Tomorrow's Broadcast Leaders: Their Future's So Bright, They've Gotta Wear Shades

FHH Profs Montero and Kirkpatrick show up-and-comers the ropes.

Another class of the brightest and the best is working its way through the Broadcast Leadership Training Program, and FHH is there to help. The BLT, of course, is a 10-month Executive MBA-style program created by the National Association of Broadcasters Education Fund (NABEF) to provide rising executives the specific knowledge and skills they’ll need when it comes time for them to assess, buy, own and operate radio and television stations. The BLT provides “a blueprint for talented businesspeople to become a greater part of the industry and increase the diversity of voices available to the public”, according to the BLT website. (Check out this page of the website for information on how to apply for next year’s program; applications are due by May 31, 2015.)

BLT participants don’t have to suffer through dry presentations offered by ivory-tower-cloistered lecturers. Au contraire, they are taught by a wide range of professionals who know what they’re talking about because they’ve experienced it all first hand – including (and here we’re quoting the BLT website) “leading communications attorneys”. So it should not surprise you that the most recent session,on “Closing on the Acquisition of a Broadcast Station”, was led by none other than FHH mavens (and CommLawBlog contributors) Frank Montero and Dan Kirkpatrick. Frank and Dan took their tutees through practical issues they’re likely to confront, including preparing closing documents, obtaining necessary consents, getting all financing in order, and the like.

This year’s class includes: Anthony Arbucias, Graham “Skip” Dillard, Manny Fantis, Jacqué Freeman, Marlon George, Dustin Hall, Kelly Landeen, Sarah Miles, Brian Paul, Erica Pefferman, Claudia Puig, Mary Rogers, Deborah Salons, Ryanne Saucier, Scott Schurz, Matt Smith and Robert Yanez. They’re shown in the photo below, along with Michelle Duke (of the NABEF), DuJuan McCoy (an NAB Board Member and a BLT Trustee and alum), and Frank and Dan. That’s Frank on the right, giving the thumbs-up. But you don’t need his imprimatur to know that you’re dealing with the broadcast industry’s next generation of up-and-comers. You can tell that because they’re all sporting their CommLawBlog shades. (Don’t you wish you had your pair?)

Flo and Eddie's Next Victim: Pandora

Anti-SLAPP defense gets farther than expected, but fails in the end ... this time.

In the continuing saga of Flo and Eddie vs. The Digital World, we have a twist. Sure, Flo and Eddie won again – it’s not that much of a twist. But the adversary this time – that would be Pandora – came up with a new response, and it didn’t go down without a fight.

If you’re unfamiliar with the New Litigation Adventures of Older Rock and Rollers, check out my previous posts on the efforts of some , um, let’s just say “more mature” rock artists looking for royalties for the digital public performance of pre-1972 sound recordings. If you’re one of our regular readers, you’ll know that the score to this point is:

Plaintiff Recording Artists or Record Labels: 3

Defendant Sirius XM: 0

The latest case pitted Pandora against Flo and Eddie, in front of U.S. District Judge Phillip Gutierrez in the Central District of California. Since F&E had already won one case in the same court before the same judge, Pandora was obviously looking at long odds. But that didn’t stop it from pulling out a couple of novel arguments.

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Copyright Office Offers A Sketch of the Future of Music Licensing

245-page report takes no action, but suggests important changes to the music licensing process

Almost one year after launching a far-reaching inquiry into the “effectiveness of existing methods of licensing music”, the Copyright Office (CO) has released the 245-page report setting out its conclusions. Titled “Copyright and the Music Marketplace”, it doesn’t actually change anything – but it sets out a wide range of observations and recommendations that could resonate for years in Congress and elsewhere, possibly leading to major changes throughout the music licensing universe.

I wrote about the CO’s initial two Notices of Inquiry last March and July. They posed 24 questions across eight different subjects relating to music licensing. The CO also held public roundtables in Nashville, Los Angeles and New York. It is therefore not surprising that the CO’s report is comprehensive. And here’s a surprise: Despite my earlier prediction that the CO’s eventual conclusions would likely be unfavorable for broadcasters, as it turns out several recommendations actually favor users of copyrighted music, including broadcasters. And to the extent that the CO is looking to a possible overhaul of pretty much all aspects of the licensing process, all participants in that process could end up benefiting from a less fragmented, more consistent system.

But the report clearly urges Congress to move legislation that would create a performance right applicable to over-the-air broadcasting (though not exclusively), so one side of the industry is still likely to benefit more.

Before delving into some of the details, we should probably note some general principles identified in the report. According to the CO, the study revealed broad consensus on four key principles:

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Brrr - The Auction 98 FM Freeze is On

With Auction 98 now in the works, the Commission has frozen, effective immediately (i.e., as of March 16, 2015):

  • All applications proposing to modify any of the 131 vacant non-reserved band FM allotments scheduled for Auction 98 (currently slated to kick off on next July 23);
  • All petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of the Auction 98 allotments; and
  • All applications, petitions and counterproposals that fail to fully protect any Auction 98 Allotment.

Filings in any of the above categories that happen to be submitted after the release of the FCC’s public notice will be dismissed. (Can’t remember what channels are up for grabs in Auction 98? Click here for the current list.) This freeze will remain in effect until the day after the deadline for Auction 98 long form applications – which will likely be sometime in late Summer/early Fall, 2015, at the earliest.

The freeze notice does not impose a freeze on any and all minor mod applications (for commercial or noncommercial stations) during the filing window for short form (Form 175) applications for Auction 98.  (The Form 175 filing window hasn’t been announced yet – look for that announcement in a month or two.) Such blanket freezes barring all minor mods during the Short Form window have been standard operating procedure in the last several FM auctions. Given that precedent, if you have a minor mod you’d like to file that doesn’t fit into any of the three freeze categories noted above, you might want to plan on getting it filed before the opening of the Form 175 filing period, just to be on the safe side. Otherwise, your ability to file could be delayed by a month or more. Check back here for updates on the auction schedule.

Freezes like this are routine when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process.

For more information on Auction 98 itself, see our related post here.

Auction 98: 131 FM Allotments on the Block

The bidding won’t start until July, but there’s no time like the present to check out this year’s opportunities.

The FM construction permits available in the 2015 auction have hit the show room floor. If you’re thinking about bidding on any of the 131 new and used models up for grabs, start looking now. The bidding action won’t start until July, but that doesn’t mean that it’s too early to formulate your game plan. This year’s listings include 113 brand new construction permits, seven used permits (i.e., permits that were sold once but never built) and 11 permits – including Muleshoe, Texas – that went unsold during the last auction.

You can find a list of this year’s offerings here. As you peruse the list you’ll note that more than half (73 to be exact) are located in Texas. The remaining permits cover the map from New Hampshire to California and from Washington State to Georgia; there’s even a C2 up for grabs in Hawaii. 

As always, potential bidders should bear in mind that the FCC does not warranty what it sells. In fact, the FCC has included its standard four paragraph disclaimer, some in bold print, at page two of its notice. Among other tidbits, the Commission expressly disavows the useability of the CP’s on the auction block: “The FCC makes no representations or warranties about the use of this spectrum for particular services.” You have been warned.

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Drones Now on NTIA's Radar

Another federal agency is now considering regulation of drones - but it's NOT the FCC.

We have previously reported on the FAA’s regulation – or non-regulation, or proposed regulation – of drones (official bureaucratic name: unmanned aircraft systems or UAS). Most recently, the FAA finally managed to issue a Notice of Proposed Rulemaking looking at operational rules for drones. Think maximum size and operating height, need for an operator license, requirement that line of sight be maintained – that sort of thing. (Since Congress told the FAA back in 2012 to get rules along these lines in place by 2015, the FAA seems to be a little slow out of the gate here, but that’s a story for another post.)

Now a second federal agency is joining the move to regulate drones. The National Telecommunications and Information Administration (NTIA), which of late has been focusing mainly on policies related to broadband, spectrum use and the Internet, has begun a multistakeholder process to address “best practices” for the commercial and private use of drones. (Law enforcement and other noncommercial governmental drone use is not on the table here.) The goal is to look at broader drone-related issues, such as privacy concerns, transparency and accountability.

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Congress to FCC: Now, Let's Do Something About 10 GHz

Some familiar faces take an alternative approach to trying to get the FCC to open up spectrum for wireless broadband.

Recently, we reported on bills introduced – actually, re-introduced, since proposals with the same language had died during the preceding Congressional session – by several reasonably high-profile Senators and Representatives. Their goal: requiring the FCC to study the possible use of the 5.9 GHz band for Wi-Fi use. Now the same crew is at it again, but they’re using a somewhat gentler approach. Rather than looking to require the Commission to do anything, this time they’re simply offering their support for the FCC’s efforts to “free up additional spectrum for wireless broadband use”. They don’t identify precisely which “efforts” they’re supporting, but they do happen to suggest that the Commission “explore potential sharing opportunities within the 10 GHz band”.

While the letter doesn’t say how this Congressional team happened to hit on the 10 GHz band, we’re guessing it wasn’t an accident.

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The Net Neutrality Order Has Hit the Stands!

Next stop, some federal court of appeals?

If you were looking for something to do in your spare time for the next several weeks, we have some good news for you. The FCC has just released its “Report and Order on Remand, Declaratory Ruling, and Order” in the net neutrality proceeding. While early predictions had put the page count north of 330 pages, the final item weighs in at a surprisingly trim 282 pages – if you don’t count the two appendices and separate statements from each of the five Commissioners, all of which bring the total page count up to an even 400 pages. (If you had 400 pages in your office pool, congratulations!) So if you want to get ahead of the curve, you’d better get reading ASAP. We recommend that, before you start, you stock up on your stimulant of choice – it’s likely to be a long haul.

The rules adopted in the order won’t take effect until 60 days after the order makes it into the Federal Register, at the earliest. (Some of the new rules are “information collections” that will have to be run past the Office of Management and Budget for its OK first, which means that the effective date on those will likely lag behind the rest.) Also, for anybody who might be inclined to seek judicial review of this order – and, given the FCC’s 0-2 record in the D.C. Circuit so far, you’ve got to figure somebody’s going to – the 60-day period for filing your petition for review with the courts won’t start until Federal Register publication.

Note also that this is one of those proceedings that could go to any of the U.S. Courts of Appeals. If petitions for review are filed in different circuits within the first ten days of the 60-day filing window, they will be subject to a lottery to see which circuit is the lucky circuit. In order to get your preferred circuit into the drum for the drawing, within 10 days of “release” of the order (i.e., Federal Register publication) you’ll have to (a) file your petition for review and  (b) have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)

Check back here for updates.

Net Neutrality V.3: What We Know So Far

Pushed by losses in the courts, FCC relies on Title II, Section 706, Title III as authority for increased regulatory control of the Internet

[Blogmeister’s Note: While the FCC technically adopted its highly controversial “net neutrality” rules on February 26, the full text of those rules has yet to be released. We would have preferred to report on the actual rules, but since we don’t have them yet, we here in the CommLawBlog bunker present the following preliminary summary and analysis based on the official public notice issued by the Commission on February 26 (as well as the separate statements of the individual Commissioners). We plan to provide a detailed look at the rules and the accompanying Report and Order – said to exceed 300 pages in length – once they’re released.]

First things first. The new rules did not spring out of thin air. They merely constitute the latest episode in a years-long, intensely scrutinized, highly charged process. That process has already involved two FCC attempts to craft “Open Internet” rules or policies, both of which were largely gutted by the U.S. Court of Appeals for the D.C. Circuit. (For a refresher course on the last decade or so of net neutrality back-and-forth, check out my post from last year.) The new rules are presumably designed to achieve the goals of the earlier, failed, efforts to promote net neutrality while avoiding the flaws perceived by the court.


The FCC has reclassified broadband Internet access as a Title II “telecommunications service” while also relying on other statutory provisions to bolster Internet regulation.   

After the enactment of the Telecommunications Act of 1996, the FCC recognized two separate regulatory classifications: “telecommunications services” and “information services”. Think of it as the distinction between the transmission of content (i.e., “telecommunications service”) and the processing or provision of content (i.e., “information service”). Services falling into the former category were subject to rigorous regulation under Title II of the Communications Act. That meant that they were regulated as “common carriers”, i.e., much like railroads and other monopolies as far back as the 19th century. Services falling under the “information services” rubric, on the other hand, were largely unregulated.

While that distinction worked reasonably well in the pre-broadband days, things got muddy as broadband took over. In the early 2000’s the Commission declared all components of broadband Internet service – transport as well as content provision – to be an information service, and thus free from regulation, and particularly Title II regulation. But that severely limited the FCC’s ability to regulate various aspects of broadband service that it eventually wanted to regulate. When the FCC tried to impose regulation – claiming statutory authority under Section 706, a provision (codified as 47 U.S.C. §1302) that authorizes the Commission to “encourage” the widespread deployment of broadband access – the courts concluded that Section 706 does not provide the necessary authority.

The FCC’s latest net neutrality decision is a direct response.

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