CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Depending on who’s doing the including, inclusion of a radio station in an Arbitron market may not be subject to a two-year waiting period for purposes of multiple ownership calculation.

While the heyday of radio consolidation is fading in the rearview, some opportunities still exist. As Cumulus Licensing LLC recently demonstrated, with a quick change in a station’s city of license, an otherwise impermissible ownership situation can become permissible – thanks to a helpful Audio Division interpretation of the contour overlap standard that has governed radio multiple ownership for nearly a decade.

Concentration of control in the radio world hasn’t been on many people’s radar for a while, so some background may be in order. 

Since back in the 1990s, radio ownership in any particular market has been subject to caps depending on the number of other stations present in the particular market. In the ‘90s, the relevant “market” for any proposed acquisition depended on the particular contours of the particular stations owned and proposed to be owned by the buyer. That gave rise to considerable flexibility for buyers, who were able to some degree to manipulate the scope of the relevant market to their advantage.

That signal contour approach to market definition was largely tossed out in 2003, when the Commission adopted an Arbitron/geography-based approach. Under the “new” approach, radio ownership caps are determined by the number of stations located in (or “home to”) Arbitron-defined markets. By relying on the independent determination of Arbitron as to which (and, thus, how many) stations were in each market, the FCC theoretically reduced the flexibility the signal contour approach had afforded to inventive applicants.

But, as the Commission acknowledged, even the Arbitron approach was subject to manipulation.

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Going forward, FM channel reallotment proposals may not utilize vacant channels; Sole exception – substitution of same class channel

The art of moving FM channels around to achieve a preferable (and, at least for some, more valuable) channel arrangement has suffered a set-back with the announcement of a change in allotment policy. The Commission has withdrawn one of the technical mechanisms used by practitioners of that art: from here on out, with one narrow exception, vacant FM channels cannot be modified or deleted as part of an effort to re-jigger the distribution of channels.

The issue arose in a long-running contest between competing proposals for FM channels in the area of Keeseville, New York (conveniently located just across Lake Champlain from Burlington, Vermont). In 2004 the Media Bureau had allotted a vacant Class A channel to Keeseville. In so doing, the Bureau rejected a counterproposal to move an operating station from Hartford, Vermont, into Keeseville. Unwilling to take “no” for an answer, the Hartford proponent concocted an alternate approach and submitted it as a whole new rulemaking proposal. That alternate approach depended on, among other things, moving the newly-minted-but-still-vacant Keeseville Class A back out of Keeseville.

One of the supporters of the Keeseville Class A allotment (and – full disclosure – an FHH client) opposed that Plan B because it would eliminate the availability of a vacant channel in Keeseville, even though interest in filing for that channel, as a Keeseville channel, had been expressed. Well-established Commission policy provided that, in such circumstances, a vacant channel could not be moved. Despite that, the Bureau approved the Plan B alternative and yanked the vacant Class A Keeseville channel. 

The disappointed Keeseville Class A proponent appealed to the full Commission.

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Congress wants annual reports. The FCC delivers. The rest of us yawn.

The Commission has released its Seventh Broadband Deployment Notice of Inquiry (7th NOI), the ostensible purpose of which is to determine whether broadband is being deployed to all Americans in a reasonable and timely fashion.

As we glance through it, our overriding question is: Why?

The simple answer is because Congress said so. In the Telecommunications Act of 1996, Congress required the Commission to crank out such reports on an annual basis. It’s that time of year again, for the seventh time.

But the FCC already has most of the answers to the questions it asks, answers which are, in fact, pretty obvious both historically and logically. The FCC could as easily have skipped over the subject matter of the 7th NOI and jumped right to the heart of the matter: namely, what can, or should, the FCC do about the unmistakable fact that some folks don’t have broadband service?

The starting point of the 7th NOI branches off from the previous year’s effort, which was completed only last month with the release of the 2010 Sixth Broadband Deployment Report (6th Report). As my colleague Mitchell Lazarus reported, in the 6th Report the Commission redefined broadband as “a transmission service that actually enables an end user to download content at speeds of at least 4 megabits per second (Mbps) and to upload content at speeds of at least 1 Mbps . . .”

The FCC already knows that, under this new definition, somewhere between 14 million and 24 million Americans are unserved by broadband. It also knows that areas of low population density and low income are often the last to receive service, whether it is cable or broadband or anything else. With that in mind, the crux of the 7th NOI lies in the FCC’s comment: “Should we consider affordability as a component of broadband availability?” The Commission appears to be asking whether broadband should still be deemed “available” if a provider offers it, but at too high a price for local residents to manage.

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In WRS rulemaking, FCC will try to resolve issues of “renewal expectancy” and the “comparative renewal” process

As part of its ambitious rulemaking looking to impose consistency across a wide range of radio services, the Commission has set its sights on solving a vexing problem involving license renewals in the Wireless Radio Services (WRS), a fairly large universe encompassing “all radio services authorized in parts 13, 20, 22, 24, 26, 27, 74, 80, 87, 90, 95, 97 and 101…whether commercial or private in nature.” The problem: How to deal with applications for new licenses which are filed against (i.e., mutually exclusive with) applications for renewals of existing licenses.

At a time when the Commission’s resources are focused on finding vacant or underused spectrum to feed the broadband beast, the WRS proceeding runs smack into a core issue that has resisted resolution for decades: how to determine the “renewal expectancy” to which a license renewal applicant may be entitled, and how to assess the weight of that expectancy against a competing applicant. While “renewal expectancy” historically received considerable attention in comparative renewal proceedings relating to broadcast licenses, the issue has now arisen in the WRS context.

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FCC looks to overhaul antenna structure strictures.

You know how people have been telling you for, like, years that you really ought to clean out your refrigerator? And when you finally get around to it, you find (among other things) that those fuzzy things that look like a science experiment sprouting behind the old jar of maraschino cherries at the back of the top shelf have sell-by dates that went by several years ago?

That’s what the FCC is experiencing right now – but instead of its refrigerator, what needs cleaning up are the rules governing antenna structure construction, lighting, marking and maintenance. 

And so the Commission has released a Notice of Proposed Rulemaking (NPRM) looking to overhaul its tower-related rules, which comprise Part 17 of the rules. While the Commission specifies a number of particular changes it has in mind (see below for examples), the proceeding appears to encompass the entire regulatory scheme of Part 17. Anyone who has an antenna structure or expects to build one may want to take the opportunity to offer their suggestions, since history suggests that, once the structure rules are revised, they’re likely to stay that way for a while.

The FCC, of course, has long required all of its regulatees to comply with various non-RF related aspects of their antenna structures.  (Insider tip: While you may want to refer to them as “towers”, don’t; the government prefers the more elegant term “antenna structures”.) And it routinely issues forfeitures for non-compliance with, e.g., lighting and painting specifications. The goal is to keep aviators and aviation passengers from flying into those structures.

But because the focus here is on aviation, the FCC shares antenna structure responsibilities with the Federal Aviation Administration (FAA). Historically, the FAA has set most of the substantive standards (for, e.g., lighting and painting), even though the FCC has the responsibility for enforcing those standards.  But the two agencies apparently don’t coordinate as well as they might – and, as a result, discrepancies between the FAA’s requirements and their FCC equivalents can develop.

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