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

AM licensees’ power consumption could be whacked by 40%!

AM broadcasters who have grown tired of forking over big bucks to the power company – rejoice! The Media Bureau is facilitating a cost-saving opportunity that could reduce power consumption (and thus, presumably, power bills) by 20%-40%.

Can you spell “MDCL”? That’s the Bureau’s shorthand for “Modulation Dependent Carrier Level”, which refers to various types of transmitter-control technology. It’s been in use internationally for some time, mainly by high-powered AM stations. With increases both in energy costs and in the ease of implementing MDCL algorithms, use of such technology has become more attractive in the U.S. Don’t expect a technical explanation of how it works from us – it involves algorithms, for crying out loud – but as best as we can decipher things, MDCL gear senses a station’s modulation levels on a continual basis and automatically adjusts transmitter power down (and up again) depending on modulation.

The problem is that MDCL technology can cause a station’s transmitter power to dip below the minimum level required by the FCC’s rules – i.e., 90% of the station’s nominal license power. But not to worry – the Bureau has now announced that it will routinely waive that requirement. (See below for more details on the showing that will be required.)

As with anything in life, MDCL is not perfect.

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A couple of weeks ago we reported on an Order and Notice of Proposed Rulemaking (NPRM) which could lead to a re-shaping of the Travelers Information Service. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments relative to the NPRM. Comments are due by February 18, 2011, and reply comments by March 7, 2011.

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Longstanding limits on content, facilities under scrutiny in wide-ranging NPRM

If you (like most of your fellow citizens) spend much time on the highways and by-ways of our great country – or if you have an interest (commercial or otherwise) in reaching folks on those same highways and by-ways – listen up. The Commission has launched a rulemaking to explore possible changes in the Travelers Information Service (TIS), the AM-based low-power service that provides a constant diet of, um, travelers information along highways and near various travel-based locations. At the request of several associations of government officials and TIS operators, the FCC has issued an Order and Notice of Proposed Rulemaking (NPRM) to consider whether TIS stations should be permitted to air a greater range of information at greater power in a greater variety of locations. The range of possible changes includes, at one extreme, a substantial redefinition of the service itself.

The TIS has been around since 1977. TIS stations operate in the AM band, as a primary service on 530 kHz and on a secondary basis on 535-1705 kHz. With maximum power of 50 watts, they are low-power operations designed to reach a narrow audience of travelers passing in the immediate vicinity of each station. The content of their transmissions is limited to “noncommercial voice information” about traffic (including road conditions, hazards, advisories, directions), nearby options for lodging, rest stops and service stations, and descriptions of local points of interest. The strict limitations on the service were imposed out of concern about possible interference and competition with commercial broadcasters.

Citing broad changes that have occurred in the country in the three decades since TIS began, the petitioning associations of government officials and TIS operators suggest that the Commission:

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Bureau slams door on proposal for across-the-board AM power boost

Well, that certainly didn’t take very long. Barely more than a month ago we reported on a proposal, submitted by self-described “avid listener of AM radio” and radio consultant Richard Arsenault, calling for an across-the-board tenfold power increase for all AM stations, the Media Bureau has rejected the proposal in no uncertain terms. 

Mr. Arsenault’s goal was to permit stations to drown out various ambient sources of pesky interference. Conceptually it was a fine idea, although not without considerable practical problems. The Bureau, however, chose not to dwell on the minutiae. Instead, it notified Mr. Arsenault that “your proposal is not in the public interest because it would greatly increase the potential for interference between AM stations and would undermine the Commission’s efforts to improve the AM service.” Those efforts have been on-going for more than a couple of decades, although it’s difficult to gauge their success with any real precision.

Perhaps the most interesting aspect of the Bureau’s terse turn-down is the fact that the Bureau acted at all. The Commission is under no obligation to take any action on proposals for rulemaking. In recent years it has appeared to respond to some such proposals in a sort of passive-aggressive way by inviting preliminary comments on them – thus creating the impression that the Commission may actually be interested in the proposal – but then letting them sit without action, sometimes for years. The result is a de facto denial, even though the proposal technically would probably show up as “pending” or “under consideration”. (An earlier proposal by Mr. Arsenault, calling for earlier commencement of presunrise operation by some, but not all, AM stations, may be subject to that approach. While the Commission did request comment on it back in March, nothing has been heard about it lately.)

So the fact that the Bureau has affirmatively, and quickly, denied this proposal is noteworthy. Whether it signals a new approach to rulemaking proposals or just a particularly strong (and negative) reaction to this particular proposal is unclear.

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Proponent would throw more power at ambient interference problem for AM stations

Richard Arsenault is back with another idea to help AMers.  Mr. Arsenault is the gentleman who just a couple of months ago urged that a considerable number of Class B and D AM stations be permitted to start presunrise operation at 5:00 a.m. (regardless of when sunrise actually happened to be). This time his proposal would affect all AM stations by allowing all AM stations to increase their daytime power tenfold (10 dB) (or at least fourfold, by 6 dB, if the 10 dB won’t fly).

His logic really can’t be faulted. Mr. Arsenault believes that, while the AM 0.5 mV/m contour is theoretically protected – and, therefore, listenable – in fact nonbroadcast interference routinely overwhelms service out to that protected contour. The result is an often unlistenable cacophony where there should be sweet AM signal. The interference emanates from sources like power lines and a broad array of electronic devices. Arsenault asserts – and who can seriously challenge him on this? – that things will only get worse. As a result, listeners who should, in theory, be able to receive reasonably strong AM signals will increasingly hear noise. 

His solution? A substantial across-the-board daytime power increase to drown out the static. As he sees it, a tenfold power increase would allow all stations to break through all but the worst interference, thereby giving the AM aficionado a fine selection of strong stations in place of the interference-wracked options currently available. And the beauty of his vision is that, if all AM stations increase their respective powers at the same time, they will not interfere with one another any more than they do now, since the relative strengths of their signals will be unchanged.

Thinking practically, Arsenault suggests that a six-month grace period be established to allow stations the time necessary to implement the upgrades. No application would be necessary – just an after-the-fact notification to the Commission of the degree of power increase and the date of implementation. The opportunity to take advantage of the power upgrade opportunity would run for five years.

Arsenault acknowledges that “there are details that will need to be addressed before implementation”, but that his petition “should open discussion on this concept”.

While the notion of a 10 dB (or even 6 dB) across-the-board daytime power increase may be attractive to many, if not most, AM licensees, it has at least one major drawback: in order for it to work, all stations would have to upgrade themselves. Otherwise, stations choosing, for whatever reason, not to increase power would be drowned out not by nonbroadcast background RF, but by their bulked-up AM confrères. And it’s easy to see why some AM folks might choose not to ramp up: the cost of new equipment alone might be prohibitive, not to mention the likely increase in power costs. After all, cranking up your power by a factor of six or ten will require significantly greater power.

The FCC invited comment on Arsenault’s last petition for rulemaking, although it’s far from clear that that proposal will get very far beyond that procedural step. We will let you know if the Commission invites comments on Mr. Arsenault’s latest.

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Petition proposes pushing start-time for pre-sunrise authority back an hour for AM’s on Class B and D Regional Channels

For all you early risers who are hooked on AM radio (and, really, who isn’t?), good news! The Commission has invited your comments on a proposal, filed earlier this month, that would permit the early commencement of Presunrise Service (PSR) by Class D and certain Class B Channels.

Generally, Class D and Class B stations operating on Regional Channels are not allowed to crank themselves up to full daytime power prior to sunrise.  (The nitty-gritty PSR limits are set out in Section 73.99 of the Commission's rules.)  Recognizing the hardship that this creates for many stations, particularly in winter months when sunrise occurs late (e.g., after 7:00 a.m.), the Commission established the PSR authorization that permits some power increases (up to 500 watts into their daytime transmission facilities) uniformly at 6:00 a.m. regardless of when local sunrise occurs. Before 6:00, though, they’re still stuck with way low power. (Class D AM stations, for example, typically can’t exceed 100 watts.)

Now comes Richard F. Arsenault, with a petition for rulemaking. His idea: let AM stations on Regional Channels commence PSR operation at 5:00 a.m. locally, rather than 6:00. He argues that these stations are at a substantial competitive disadvantage during morning drive-time hours, which typically begins between 5:00 a.m. and 5:30 a.m. in most areas. He suggests – and it’s hard to contradict him on this – that most listeners who have to wake up by, say, 5:30 won’t set their clock radios to such regional AM stations because those stations’ signals are un-receivable at that time. And the same goes for car radio pre-sets: if the commuter is on the road before 6:00 a.m., it’s unlikely that he or she will try to tune into an AM still operating with its lame nighttime signal.

To remedy this competitive disadvantage, Arsenault proposes simply that the Commission permit Class D and Class B stations operating on Regional Channels to commence operations at 5:00 a.m. under PSR authority with up to 500 watts. He provides supporting calculations that indicate that his proposal could benefit as many as 2,063 Class D and Class B stations, and he avers that there will be no international considerations raised by the extension of PSR authority under these limited circumstances.

Whether – and if so, to what extent – the proposed change might cause new objectionable interference to other co-channel stations is not clear. The Petition lacks any detailed engineering showing on that point. The Commission will likely have to address whether improving the lots of Class B and D stations on Regional Channels during the 5:00 – 6:00 a.m. period outweighs any increase in interference that such extended operation might cause.

Without indicating whether or not it favors the proposal, the Commission has invited comments on it. Comments are due within 30 days of the that invitation.

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Bureau issues FAQs for computer-modeled proofs

It may seem like forever ago, but it was in 2007 – less than three years ago – that the Commission, acting at the suggestion of an ad hoc “coalition” of broadcasters, consulting engineers and manufacturers, started to get serious about “moment method modeling”. In May of that year it invited comments on proposed rules that would permit use of computer modeling techniques to verify AM directional antenna performance. (The smart money says that such computer-assisted proofs are a huge time/effort/money saver for all concerned.)

The new rules were adopted 16 months later, but because of bureaucratic processes beyond the FCC’s control, the rules did not formally take effect until February, 2009. (As we reported here in November of last year, despite those bureaucratic roadblocks, the Media Bureau staff was very helpful effort in allowing the benefits of the new rules to be enjoyed as soon as possible. Props to them, again, for that.)

Now that everybody has had a reasonable amount of time to work with the new rules, the staff has issued a public notice clarifying a number of questions that have arisen about who gets to use the moment modeling method and under what circumstances. If you think that moment modeling is something that may be affecting you in the future, you should review the public notice carefully and confer with your consulting engineer to see how it may alter your plans (if at all). (We would ordinarily try to summarize some of the highlights of the notice, but this is Highly Technical Material that is probably best left to our friends on the other side of the legal/technical divide.)

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On September 1, we reported that the FCC had, at long, long last, managed to get its order authorizing the rebroadcast of AM stations on FM translators published in the Federal Register, thus establishing an effective date for the new rule. But, as we also reported, there were still a couple of loose ends – a related rule (Section 74.1284) and several translator-related forms needed to be revised to conform to the new rules, and the revisions hadn’t yet been approved by the Office of Management and Budget. No problem – as we reported a week later, most of those loose ends got tied up pronto, allowing the new rules and revised Forms 303-S and 345 to take effect October 1.

But wait. Form 349 (for new and modified FM translator/booster CP’s) somehow got left behind, lost in OMB limbo. Not to worry, though. The Commission managed to hustle that last form over to OMB (on September 4), OMB gave it the thumbs up (on October 8), on October 16 public notice of OMB’s approval made it into the Federal Register and voilà! Revised Form 349 is now effective.

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It seems like just last week – wait, it was just last week – that we reported on the Ron Rackley/Ben Dawson proposal to delete the “ratchet rule” from Section 73.182(q) – and already the FCC has given their magnum opus a rulemaking number (RM-11560) and asked for comments on the proposal. If you have any thoughts on Ron and Ben’s bright idea that you would care to share with the FCC, you have until October 9 to get them filed. While the public notice inviting comments may not look all that impressive, the fact that it was issued as quickly as it was could indicate that the Commission is prepared to give this proposal expedited consideration . . . or maybe not. We shall see.

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OMB approves Section 74.1284, Forms 303-S, 345; Form 349 still in limbo

On September 1 we reported that the rules permitting AM signals to be rebroadcast on FM translators will become effective on October 1 – all the rules, that is, except Section 74.1284, which supposedly still required OMB approval. (OMB approval had already been given, as it turns out and as we reported, but that word had apparently not reached the FCC by the time it made its initial announcement about the October 1 effective date.) As we predicted would happen, the Commission has now issued a follow-up notice alerting the public to the OMB approval and consequent effectiveness of Section 74.1284 as of October 1.

The lack of effectiveness of Section 74.1284 had also meant that revised Forms 303-S (for license renewal) and 345 (for assignments or transfers of control of translators) were themselves technically not effective, either. But now that OMB is on board with the 74.1284 changes, it has also signed off on the revised 303-S and 345. Those, too, are good to go as of October 1.

But there’s one remaining loose end: Form 349 (for new and modified FM translator/booster CP’s) is still lost in OMB limbo. (It looks like the FCC didn’t get around to asking for OMB approval of that revised form until September 4.) Keep your eyes out for a further notice advising of the effectiveness of revised Form 349.

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AM improvement rule from 1991 is counterproductive, engineers say

Our friends Ron Rackley and Ben Dawson – high magnitude stars in the constellation of consulting engineers – have filed a petition for rule making on behalf of their firms (du Treil, Lundin & Rackley, Inc., and Hatfield & Dawson, respectively) proposing a significant change in the AM allotment rules (specifically, Footnote 1 of Section 73.182(q)). While the Commission has not yet even assigned this an RM- number or sought comment on it, anyone interested in AM matters should take a look at it and be prepared to throw in his/her two cents’ worth at the Commission when the time comes.

The petition is not for the AM neophyte. Here’s a quick test designed to help you figure out whether you need to read on. Hit the “continue reading” link below only if you (a) have read the following “simple example” – seriously, they say that this is a “simple example” – taken verbatim from the petition, and (b) can answer the question we pose below:

Station A [i]s a 5.0 kilowatt station on 1000 kilohertz with a quarterwave nondirectional antenna and a nighttime interference free level of 3.0 mV/M and Station B [i]s a 5.0 kilowatt co-channel station located some distance away that has a nighttime interference-free RSS of 13.0 mV/m including a single limit from Station A of 8.3 mV/m. The Station B antenna was designed to have a null in its vertical radiation pattern protecting Station A, but Station A was there first and does not protect Station B. Both stations have 5 mS/m ground conductivity within their coverage area. If Station A makes a transmitter site change subject to the “ratchet clause” [i.e., Section 73.182(q), Footnote 1] and is required to reduce its interference contribution by 10%, the single limit from station A will decrease from 8.3 mV/m to 7.5 mV/m and the nighttime interference-free RSS at Station B will decrease from 13.0 mV/m to 12.5 mV/m.

Our question: Say what now?

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At long last, the Commission’s Report and Order amending its FM translator rules to permit carriage of AM stations has been published in the Federal Register. That means that those rules now have an effective date, and that effective date is (the envelope, please – drum roll – hushed silence) – October 1, 2009. As we reported last June (when the R&O was initially released), as of that effective date all outstanding special temporary authorizations (STAs) permitting AM-on-FM-translator operation will be automatically cancelled (and any still-pending requests for such STAs will be dismissed). 

Anyone who is currently engaged in cross-service translator operations will have to file a notification, pursuant to Section 74.1251(c) of the Commission’s rules, formally specifying their AM primary stations. (Yes, we know that Section 74.1251(c) technically refers to changes in the “primary FM station being retransmitted” and makes no reference to any primary AM station. But the R&O specifically referenced Section 74.1251(c) when it specifically – that would be in Paragraph 19 – instructed folks to file notifications about their “AM primary stations, so the fact that 74.1251 doesn’t mention AM’s is probably not a matter of consequence.) While the R&O does not specify a deadline for those notifications, logically they would appear to be due no later than the new effective date, i.e., October 1.

If you read the fine print of the Federal Register item, you will note that the October 1 effective date technically does not apply to one of the rule changes (relating to Section 74.1284) effected by the R&O. That’s because that particular section involves an “information collection” requirement that must first be approved by OMB pursuant to our old friend, the Paperwork Reduction Act. No problem – OMB concluded its review on August 31, an OMB control number has been assigned to the FCC’s information collection requirement, and any potential snag has thus been avoided. (Presumably the FCC was not aware of OMB’s action when the FCC sent the item over to be published in the Federal Register several days ago.  Look for a follow-up notice to be issued shortly to clear up any possible confusion on this front.)

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In an effort to provide a lifeline to an AM radio industry in continued, and dramatic, competitive decline, the Commission has changed its rules to permit AM stations to rebroadcast their signals on FM translators under certain conditions. The long-awaited Report and Order – whose release was anticipated last Fall – opens the door for considerable, but not universal, “cross-service translation”.

Under the new rules, AM stations may rebroadcast on “currently authorized” translators in the non-reserved (i.e., commercial) portion of the FM band, provided that no portion of the 60 dBu contour of the translator extends beyond the smaller of either (a) the AM’s 2 mV/m daytime contour or (b) a 25-mile radius from the AM’s transmitter site. To be a “currently authorized” translator for these purposes, a translator must have been licensed or authorized in a construction permit in effect as of May 1, 2009. (In other words, translators whose initial permits are granted after May 1, 2009, will not be eligible; nor will any translators whose authorizations, even if granted on or before that date, have since expired.)

And for all you Class D AM stations, a special break: you will be allowed to originate programming on the translator during time periods when your AM station is not operating. While that does some violence to the technical concept of “translator” service (since origination, after all, does not involve “translation” in any sense), the Commission viewed it as in keeping with the agency’s desire to bolster the competitive position of AM licensees.

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Bureau provides guidance, grace period of sorts until May 31

If you have a broadcast construction permit that’s about to expire, listen up. The Media Bureau has provided some “guidance”on how to take advantage of a rule change that took effect last year, a change that could help you breathe the breath of life into that dying CP, if only for a little while. The “guidance” doesn’t begin to answer all the possible questions, but it at least establishes an important filing deadline for some CP assignment applicants.

Way back in December, 2007, the Commission adopted a number of rule changes intended to “increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses, which historically have not been well-represented in the broadcasting industry.” It took the FCC four months to publish its order, which hit the presses in March, 2008; some of the rules took effect in July, 2008.

In that order the FCC agreed to allow the sale of expiring CP’s to “eligible entities” who pledge that they will complete construction before the expiration or within 18 months of consummation of the permit, whichever is later. The goal was to provide the acquiring “eligible entity” its own construction period of at least 18 months. Since the permits in question would otherwise likely expire (since CP’s cannot normally be extended), the thinking was that this would create an incentive for holders of soon-to-expire permits to deal them off to “eligible entities”, thereby increasing the number of such entities participating in the broadcast business.

But the original order left a number of details up-in-the-air.

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Way back in September the Commission approved moment method computer modeling for directional AM proofs, but the rules didn’t go into effect until December 1, 2008 – and even then (as we reported here), they didn’t really go into effect because the application forms on which such proofs must be submitted hadn’t jumped through all the requisite bureaucratic hoops. If that minor technicality stopped any of you from proceeding with preparation and submission of streamlined proofs, your wait is over. The Office of Management and Budget approved the FCC’s modified forms on January 26, and notice of that approval popped up in the Federal Register this morning.  According to that notice, the forms (and associated rules) are effective as of February 5, 2009.

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If you are inclined to comment on the petition for reconsideration which was filed in connection with the moment method modeling rules adopted by the Commission last September, the window is now open – the notice concerning the petition appeared in the Federal Register on January 8, 2009. But watch out – that window is small, and will slam shut on January 23, 2009.

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In case you thought the rule making on computer moment method modeling for AM proofs had been put in the finito file, you may have another think coming. Cohen, Dippell and Everist (CDE), one of the oldest broadcast engineering firms around, has sought partial reconsideration.

Not that the folks at CDE appear to have much problem with the basic idea of moment method computer modeling for handling cumbersome directional antenna proofs. To the contrary, their petition simply seeks some practical guidance relative to precisely what the Commission will be looking for in such proofs. For example, while the new rules list what must be included in the model description in order to derive the parameters, the rules do not specify what information must be provided with the proof when it’s filed with the Commission. CDE reasonably asks that the Commission provide a tad more guidance so that applicants preparing such showings for submission will not be forced to guess at what the Commission wants to see.

CDE also raises what it refers to as the “moral hazard” issue. This is where things get interesting.

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Back in September we reported on an invitation for comments on how to amend the rules regulating tower construction near AM stations. At long last the Second Further Notice of Proposed Rulemaking (SFNPRM) has made it into the Federal Register.   Publication in the FedReg in turn establishes the dates for comments. If you want to file comments in response to the SFNPRM, you’ve got until January 12, 2009; reply comments are due by February 9, 2009.

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An informal work-around for a work-around?

In a post last September we called attention to the Commission’s approval of moment method computer modeling for directional AM proofs. Use of such modeling was touted as hugely advantageous to many AM licensees because it would relieve them of an exceedingly time-consuming and expensive burden.

But just because the Commission approved moment method modeling did not mean that we could take advantage of it. The effective date of the new rules was not announced in September; rather, the FCC indicated that they would become effective once the Office of Management and Budget (OMB) had reviewed and approved the revised rules. 

So it was something of a surprise when we happened to be thumbing through the Federal Register on October 30 and came across a notice, from the Commission, advising that the changes would become effective December 1, 2008, “except for the amendments to §§73.61, 73.68, 73.151, and 73.155.” But, as it turns out, those sections are pretty much the only ones that were changed last September – which led to the next obvious question: what exactly goes into effect on December 1?

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 FCC – the Federal Construction Commission?

As reported elsewhere on this blog, the FCC has decided to permit most directional AM licensees to use “moment method” computer programs to verify antenna performance. In a Second Further Notice of Proposed Rulemaking included as a portion of that decision, the Commission has also invited comment on how to amend its rules regulating tower construction near AM stations.

AM antennas are notoriously susceptible to unwanted effects caused by structures located near to the antennas. Such structures – for example, other towers, or large buildings, or construction cranes, or bridges – can re-radiate the AM signal, thus distorting the pattern which the AM station’s antenna was designed to produce.

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The Commission has given the thumbs-up to the use of moment method computer modeling for directional AM proofs in many, but not all, circumstances. This should ease one of the most time-consuming and expensive burdens traditionally borne by AM licensees.

Directional AM antenna systems are designed to generate carefully sculpted patterns of radiation – with the signal intentionally suppressed in one or more directions in order to prevent interference. Normally, these systems are designed on paper, using that voodoo that consulting engineers do so well. But the FCC, not to mention other licensees, expects the signal produced when the design is actually constructed will conform to the theoretical design. Accordingly, the Commission has historically required directional AM licensees to submit “proofs” of their antenna patterns, proofs obtained by the taking of a boatload of measurements at a boatload of points along several bearings at varying distances from the transmitter. It is an understatement to say that doing proofs is cumbersome – or, as the FCC describes it, “daunting, slow, and expensive.”

As computer programming has developed, however, various alternatives to the hand-crank proof method have evolved in the form of programs known generically as “moment method” programs. These verify antenna performance based on measurements of the current and phase measured at specific locations on the antenna elements. While there is some debate in engineering circles as to whether moment method programs are a valid substitute for field measurements, the Commission decided to accept proofs generated by the moment method, subject to a number of caveats.

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Fox oral argument in Supremes set for November 4

In planning your Election Day activities this Fall, you might want to pencil in a stop by the U.S. Supreme Court to catch the oral argument in the Fox v. FCC indecency case. (Read about the case in our earlier post.)  It’s currently scheduled for the first argument slot of the day on Tuesday, November 4. On argument days the Court convenes promptly at 10:00 a.m. Doors open at 9:30 a.m., but the line generally starts to form long before that – so vote super early and then drop on by the Court to stand in line, soak up some atmosphere, and hope to get a good seat.  Need directions?  Check out the Court's website for maps, directions and other useful information.  But heads up -- you are not permitted to carry ANYTHING into the courtroom, so leave those Blackberrys, cellphones, umbrellas, newspapers, lunch boxes, brief cases, etc., etc., etc. back at home.  (The Court does provide a coat-check service, if you don't mind fighting through a rugby-like scrum to try to retrieve your belongings.)

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The Commission has released a new version of The Public and Broadcasting, revised as of July, 2008. All full-service radio and television licensees (commercial and noncommercial) and Class A television licensees should have a copy of this latest version in their local public inspection files. You can download a PDF copy from the Commission’s website, or we can send you a hard copy, if you would prefer. 

The fact that the Commission has revised its manual at this time comes as something of a surprise for a couple of reasons. First, the document had just been revised in April, 2008 – for the first time since 1999. Since nearly a decade had passed between revisions, a new update within three months of the April, 2008, revision was certainly not expected. 

Moreover, when the April, 2008, revision was issued, the Media Bureau released a public notice specifically alerting everyone to the availability of the new version. To the best of our knowledge, no such public notice heralded the release of the July, 2008, edition.

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Indecency appeals – FCC now 0-2 – In a long-awaited decision, the U.S. Court of Appeals for the Third Circuit reversed the FCC’s order holding that CBS and its affiliates had broadcast indecency in the notorious 2004 Super Bowl half-time show featuring Janet Jackson and Justin Timberlake.  The Court found that the FCC had had a longstanding policy not to penalize the occasional fleeting instance of possible indecency and that the Commission had not adequately explained why it chose to depart from that policy when it whacked the CBS folks for the half-second exposure of La Jackson’s right breast.  The Court’s decision was consistent with the Second Circuit’s decision in the Fox case, although unlike the Second Circuit, the Third Circuit did not suggest that the Commission’s indecency policy is unconstitutional.

It’s not clear where this case will go from here.  The Court remanded the matter back to the FCC for further consideration – so if the FCC wants to try to take another crack at explaining its abandonment of the fleeting expletive policy, it could conceivably do so.  But that policy is already before the U.S. Supreme Court in the Fox case, so it’s unlikely that the Commission will bother to try to tweak its policy before Chief Justice

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Last month, we reported on the Notice of Inquiry and Notice of Proposed Rule Making (NOI/NPRM) launched by the Commission to examine "embedded advertising" in light of the dramatic increase in the use of "product placement" and "product integration." Advertisers have become increasingly reliant on such techniques as technology has enabled viewers to circumvent traditional commercial breaks with ease.

Through the NOI/NPRM, the Commission is attempting to determine whether changes to the current sponsorship rules are necessary in today's environment, while proposing new sponsorship identification announcement requirements designed to make embedded advertising more obvious to the consumer.

Comment deadlines for the proceeding have been announced for those wishing to participate.  Comments must be received by the Commission by September 22, and Reply Comments are due October 22, 2008.

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Earlier today, the federal court of appeals for the 3rd Circuit overturned the FCC's $550,000 fine on CBS for the broadcast of Janet Jackson's infamous 2004 Super Bowl Halftime Show.

The Third Circuit overturned the FCC's decision on much the same grounds as the Court of Appeals for the Second Circuit overturned the FCC's "Golden Globes" decision. Specifically, the Third Circuit held that the FCC could not abruptly abandon its long-standing policy of restrained enforcement of its indecency rules without sufficient notice of the change in policy or a reasonable justification for the change. Because the FCC failed to provide such notice or justification, its decision could not stand.

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Comedian George Carlin has passed away, but he will live on in many ways.  For broadcasters, Carlin's most noteworthy legacy is the FCC's indecency policy in all its tortured, blurred inconsistency.  It was Carlin, after all, who created the notion that there might be seven words that you couldn't say on the public airwaves.  The Commission had certainly never said anything close to that before Carlin created and recorded his piece, or before WBAI broadcast it.  But by crafting a comedic monologue based on the fictional premise that there did exist some absolute FCC ban against the broadcast of certain words, Carlin managed to draw the FCC into embracing his notion.  So Carlin's art became the FCC's reality. 

The irony, of course, is that Carlin's monologue itself illustrates the futility of any broadbrush governmental proscription on language.  As the routine hilariously - and irrefutably - demonstrates, words are just words, and they mean no more and no less than what the user intends them to mean.  It is a fool's errand to try to limit the ability of people to communicate their own ideas through words of their own choosing.  And it is fundamentally antithetical to the premise underlying the First Amendment and the ultimate strength of our democratic process.

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An updated version of "The Public and Broadcasting," a Commission publication which all broadcasters must place in their public inspection files, was released on April 24.  All broadcasters must replace the former version of the document with the revised version immediately and also must be prepared to provide copies to any member of the public who requests one.
 
The Commission also announced that it will provide two "Broadcast Information Specialists," one in the Media Bureau's Audio Division and the other in its Video Division, to serve as contact points for the public to answer questions regarding becoming involved in the Commission's processes.
 
Anyone with questions regarding the updated version of "The Public and Broadcasting" and/or other questions concerning local public file requirements are welcome to call their FHH attorney for more information.

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If you are thinking about filing comments in response to the FCC's Localism Report and Notice of Proposed Rulemaking (MB Docket No.04-233), be advised that the deadline for those comments has been extended by the Commission to April 28, 2008.  The extended date for reply comments is June 11.  As we have observed in previous postings here and in the FHH Memo to Clients, this proceeding is extremely important and could end up imposing very substantial new burdens on all broadcasters.  We urge all broadcasters to take a close look at the FCC's proposals and to make their feelings about those proposals known as clearly and forcefully as possible.  FHH will be preparing comments on behalf of a number of clients - if you would like to join in that effort, please give us a call.

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The Commission released a public notice today authorizing AM stations with Presunrise and/or Postsunset Service Authorizations located in communities that follow Daylight Savings Time to use the "advanced" power and time specifications in their licenses for the period between March 9, 2008 and March 31, 2008.  Daylight Saving Time commences on March 9, 2008, as a result of the enactment of the US Energy Policy Act of 2005, which moved the commencement of DST into March.  This follows the policy eventually adopted by the Commission last year after it first erroneously re-calculated and posted the revised authorizations.

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With the publication of the Commission's Notice of Proposed Rulemaking on localism in the February 13, 2008 Federal Register, the deadline to submit Comments in the proceeding has been set for March 14, 2008.  Reply Comments will be due on April 14, 2008.

As discussed previously on this blog, the NPRM presents a laundry list of tentative conclusions and proposed rules that would turn the clock back nearly three decades, forcing broadcasters to comply with costly and burdensome requirements, including a return to ascertainment requirements similar to those required of licensees through the early-1980's.

The Commission is expected to receive a barrage of opposition from the broadcast community, including a challenge by the National Association of Broadcasters and many of FHH's broadcast clients.

If you have questions or wish to participate in the proceeding, you should contact your FHH attorney immediately.

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The release of the Commission's January 24, 2008 Notice of Proposed Rulemaking ("NPRM") announcing a laundry list of tentative conclusions and proposed rules concerning localism sent immediate shockwaves throughout the broadcast industry.  Reaction was particularly strong in view of the recently released Television Standardized and Enhanced Disclosure Requirement ("Enhanced Disclosure Order") Report & Order (see our coverage of this R&O here, and more in depth coverage in the January edition of Memorandum to Clients).  Many observers have suggested that if the NPRM's proposed rules/tentative conclusions are adopted, the FCC will be turning back the clock nearly three decades, when licensees were forced to comply with burdensome ascertainment requirements.

According to the Commission, the proposed rules are designed to address the perception that broadcasters may not be addressing the needs and interests of their communities sufficiently.  Over the past several years, the Commission has solicited comments from the public and engaged in localism hearings at venues all over the country.  From comments received through that process, the Commission has determined that "many stations do not engage in the necessary public dialogue as to community needs and interests and that members of the public are not fully aware of the local issue-responsive programming that their local stations have aired."

(Note that, while the Commission refers to some "necessary public dialogue," there is no requirement for any such dialogue in the Commission's rules, nor has there been for more than 25 years.  Also, while members of the public may not be "fully aware" of available programming, that would appear to be more the fault of the "unaware" pubic than of broadcasters.  After all, broadcast programming is, well, broadcast -- meaning that it's available for one and all to receive, at no cost).

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One day before the December 18 FCC Open Meeting in which Chairman Kevin Martin planned to bring his media ownership proposal to a scheduled vote, 25 senators signed a letter to Martin issuing yet another warning from Congress that his actions are inappropriate.

The letter, organized by Senator Byron Dorgan (D-N.D.), stated that if the Commission proceeds with final action on the media ownership proposal on December 18, "we will immediately move legislation that will revoke and nullify the proposed rule.

The congressmen pointed out that just 28 days were allotted for comment between the issuance of a press release on November 13 and the close of the comment period, as compared to 90 days for the proposed new rule on the effects of communications towers on migratory birds. The letter rhetorically asked Martin to explain this inconsistency.

The letter stated that Martin knows that the Senate Commerce Committee has unanimously passed legislation asking him to defer action on December 18th, and that he has "shortchanged the comment process [before] forcing a vote."

"We are notifying you and others of this proposed action in order to make certain you understand the consequences of ignoring the need for and the right of the American people to play a constructive role in attempts by a federal agency to change rules that have a substantial impact on the American people."

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Just five days before the final FCC Open Meeting of 2007, the controversy surrounding Chairman Kevin Martin's media ownership proposal has reached a fever pitch. Martin's fellow Commissioners, many Congressmen and commenters on both sides of the issue have barraged Martin with an onslaught of criticism for the manner by which he released his proposal and his inclusion of the item on the Dec. 18 agenda. The proposal was announced on Nov. 13 in what a group of commenters including Common Cause, the National Organization for Women, and United Church of Christ labeled an "unusual and vaguely worded" news release that was not published in the Federal Register or voted on by the Commission.

Martin's proposal would amend the restriction on newspaper/broadcast cross-ownership to allow such cross-ownership in the top 20 markets, with built-in protections introduced to ensure editorial independence. Martin has been lambasted for what some deem a violation of the Administrative Procedure Act and other principles of administrative law for failing to afford sufficient time for public comment and review by his colleagues on the Commission.

When the December 12 "Sunshine Act" notice indicatedthat the item would be included on the Dec. 18 agenda - despite pleas from Congress, other Commissioners and members of the industry to postpone the vote - Commissioners Michael Copps and Jonathan Adelstein released a scathing joint statement expressing their deep disappointment at what they deem a "huge mistake."

"We have been engaged in internal discussions to try to get our processes back on track," Copps and Adelstein wrote. "We wish those discussions had led to better results. At this point, given the lateness of the hour, we hope that either we can turn this around internally, or that Congress can save the FCC from itself."

Congress might seek to do exactly that, as the Senate Commerce Committee summoned Martin and the other four Commissioners to the Hill to appear before the Committee on December 13. The Committee has already unanimously approved a bill introduced by Sen. Byron Dorgan (D-N.D.) that would require the Commission to open a 90-day comment period on a proposed rule and complete a study on localism. After publishing the result of the study, the Commission would then have to publish the final rules and allow 90 days for public comment. Members of the Committee have stated that they expect the bill to pass.

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Chairman Kevin Martin has taken the extraordinary step of issuing what amounts to his own personal notice of proposed rulemaking in the long-running, highly contentious media ownership proceeding.  On November 13 - the same date that an op-ed piece by Martin was published in the New York Times - the Chairman's office issued a news release which spelled out Martin's personal proposal for bringing the media ownership provision to a close.  You can read the news release and NYT article here.

In Martin's view, the Commission should change one - and only one - aspect of the existing media ownership rules.  He proposes that the rules should be amended to permit common ownership of a daily newspaper and a broadcast station in the same market, BUT ONLY IF: 

1. the market is one of the 20 largest Nielsen DBA's, and
2. only one daily newspaper and one broadcast station (radio or TV) is involved; and
3. where the station is a television station (i) at least eight independently owned and operating "major media voices" (defined as major newspapers and full-power commercial television stations) would remain in the market post-transaction; and (ii) the station is not among the top four ranked stations in the DMA.

Any other proposed newspaper/broadcast transaction would be presumed not to be in the public interest.  However, that presumption might be overcome after consideration of various factors, including: the "level of concentration in the DMA"; a demonstration that the proposed transaction would increase the amount of "local news" in the market; a commitment that the newspaper and the broadcast station would continue to "exercise its own independent news judgment"; and the financial condition of the newspaper and (if the paper is in financial distress) the "owner's commitment to invest significantly in newsroom operations."

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The FCC's proposal to allow AM stations to use FM translators for fill-in service (including at night, even if the AMer is a daytime-only station) has taken an important step forward.

The Notice of Proposed Rule Making (NPRM) containing that proposal has been published in the Federal Register (on Tuesday, November 6). With that publication, the deadlines for comments and reply comments have been established. If you want to file comments, you have until January 7, 2008. Reply comments are due on February 4, 2008.  The NPRM was issued in August in response to a petition filed by the NAB. The NAB's petition attracted some 500 sets of supporting comments.

The proposed rules would allow AM stations to operate FM translator stations to retransmit their signals as a fill-in service, provided that no portion of the 60 dBu contour of any such FM translator station extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. 

The proposal also contemplates that AM daytimers would be able to use FM translators at night, thus effectively allowing them to originate programming on the translator. Precisely how that nighttime capability would work as a practical matter remains to be seen. The proposal raises a wide range of ancillary questions which will have to be considered before the Commission adopts all or part of the proposal. Those questions relate to (among other things) eligibility criteria, technical standards, and timing considerations.

The NPRM may be found here.

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The Commission has announced a "localism hearing" to be held on Halloween - October 31 - in the Commission Meeting Room in Washington.  The stated purpose of the meeting is to "gather information from consumers, industry, civic organizations, and others on broadcasters' role in their local communities and proposed changes to our rules."  It may be interesting to attend just to find out what "proposed changes" the Commission might have in mind, because to date we are not aware of any specific proposals from the FCC on the "localism" front.

Anyone with more than a passing interest in the notion of "localism" as a factor in broadcast regulation might want to take a look at a law review article titled "The Myth of the Localism Mandate" by FHH's Harry Cole and Patrick Murck.  It appeared in the Commlaw Conspectus, a journal of communications law and policy published by the Columbus School of Law at the Catholic University of America.  The article examines the history of "localism" from the Radio Act of 1927 to current times.  The conclusion is that, while the FCC (as well as the Federal Radio Commission before it) has historically talked the talk about "localism", it has never walked the walk: the authors conclude that it is "idle for the Commission to believe that, just because the Commission raises its regulatory eyebrows and huffs and puffs about some localism obligation, there exists any such obligation which the Commission is able to articulate, much less enforce.  That has not been the case since the Federal Radio Commission eighty years ago, and it is not the case today."  You can find the article here.

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Question: When is a daytime-only AM station not a daytime-only AM station?

Answer: When it manages to get an STA that permits it to rebroadcast its programming on an FM translator.

Over the last six-nine months, the Commission has issued a number of STA's permitting AM stations to rebroadcast on FM translators. These STA's have been largely - no, wait, completely - unheralded. The FCC has issued no public notices about them, no public releases about them, no nothing. A quick glance at CDBS indicates that the fact that an STA request has been filed does not necessarily even show up in an "Applications" search, so it may be impossible to tell how many such requests have been filed, let alone how many have been granted.

We have tracked down a few, though. You can view them here:

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In a long-awaited decision, the U.S. Court of Appeals for the Second Circuit has finally dropped the hammer on the Commission's indecency policy. In an opinion issued on June 4, 2007, a three-judge panel (with one dissent) has held that the "fleeting expletive" policy invoked by the Commission in 2004 and then again in the 2006 "Omnibus" indecency decision is arbitrary and capricious. In the Court's view, the FCC's asserted justifications for the "fleeting expletive" policy were less than persuasive.

The "fleeting expletive" policy - as first announced in 2004 and then reaffirmed in 2006 - provided that any broadcast of the words "fuck" or "shit", in almost any context, would be deemed indecent. Historically, the Commission had been far more restrained, acknowledging that the occasional slip-up resulting in the broadcast of an isolated expletive should not warrant censure. But in the wake of the public uproar over the Janet Jackson/Super Bowl incident, the Commission suddenly reversed course and took an exceedingly hard line on indecency generally, and the use of those two words in particular.

The Court's decision is at first blush relatively narrow, finding only that the "fleeting expletive" policy is arbitrary and capricious and thus inconsistent with the Administrative Procedure Act. But in a surprising six-page portion of the opinion, the Court offered its very strong suggestion that the policy would not survive First Amendment analysis. (As a matter of practice, courts generally decline to delve into weighty constitutional issues if a case can be resolved on less radical grounds.)

The majority also indicates that the FCC's "profanity" policy - which first popped up in 2004 - essentially overlaps the indecency policy - which indicates that the profanity policy cannot survive, either.

The case is remanded to the Commission for further action consistent with the Court's decision - but the Court seems clearly to signal that if the Commission tries to shore up its policies on remand (as opposed to running up the white flag and abandoning them), the Court anticipates yet another appeal, the result of which would not be favorable to the Commission.

We are, of course, still awaiting further developments in the Janet Jackson case out of the Third Circuit, but oral argument there is not likely to happen for at least another couple of months.

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The Commission has adopted new rules designed to modernize the Emergency Alert System (EAS).  While the full text of the FCC's decision has yet to be released, in a public notice (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-273458A1.pdf) the Commission makes clear that all EAS participants will be required to accept messages using the Common Alerting Protocol (CAP).
 
As described by the Commission back in 2004, when it first proposed upgrading the EAS, the CAP is a "standardized, non-proprietary, data interchange format that simultaneously disseminates consistent all-hazard emergency alerts or public warning messages over different kinds of communications networks and systems."  The idea is to have a standardized emergency alert so that the agency or individual issuing an alert need issue only a single alert which can then be received and processed by the widest variety of media (including, but not limited to, EAS participants) for re-transmission to their respective audiences.

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The FCC has requested comments on a proposal to let some, but not necessarily all, AM directional applicants use moment method computer modeling to demonstrate that their directional antennas perform as authorized.

The proposal was advanced by a coalition of broadcast engineering mavens - broadcasters, manufacturers, consulting engineers - a couple of weeks ago, following several months of meetings and deliberations.  The idea is to reduce the burden, both on AM applicants and on the Commission's processing staff, by eliminating the need to conduct and analyze field strength measurements of directional arrays in order to verify that they're working like they're supposed to.

Historically, the Commission has required directional AM applicants to undertake elaborate, labor-intensive measurements to confirm that their arrays were working properly.  Those measurements were then sent to the Commission, where staff members reviewed them as well.

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