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

In June MusicFIRST filed its Request, alleging that, “[b]y using their licenses over public airwaves to promote their own pecuniary interests and to distort an important matter of public debate”, broadcasters are violating their public interest obligations. The Coalition suggested that the Commission should consider “strengthening the license renewal process and shortening license terms”.

Acting with unusual speed – in our experience, this kind of declaratory ruling request can gather dust for months, if not years, before the FCC even acknowledges that it’s been filed – the Commission has invited comments. In particular, the agency is looking for input on the following points:

• whether and to what extent certain broadcasters are “targeting and threatening artists who have spoken out in favor of the PRA,” including a refusal to air the music of such artists;
• the effects of radio broadcasters’ alleged refusal to air advertisements from MusicFIRST in support of the PRA;
• whether and to what extent broadcasters are engaging in a media campaign, coordinated by NAB, which disseminates falsities about the PRA; and
• whether certain broadcasters have evaded the public file requirements by characterizing their on-air spots in opposition to the PRA as public service announcements.

MusicFIRST is clearly trying to get broadcasters’ attention by attacking them where they are arguably most vulnerable – in the soft white underbelly of the regulatory/licensing process.

Of course, the Request does not ask the FCC to address the merits (or lack thereof) of the PRA . . . and properly so, since the FCC has neither the expertise nor the statutory authority to weigh in on such issues. Rather, the Request gets the FCC’s attention by claiming that at least some broadcasters may not be playing by the rules and may be acting unfairly in some way. Using that as a hook, MusicFIRST suggests regulatory responses (e.g., shortened renewal terms, possible disciplinary action) that might, um, incentivize broadcasters to be more, er, open to the PRA and its advocates.

The Request is particularly interesting for what it does not provide: any significant, detailed, factual information to support its extravagant claims of some industry-wide cabal resulting in rampant disregard for any particular rule(s). While the Request purports to “reveal a pattern of threats and intimidation by which broadcasters are using their licenses” improperly, the Request describes in the tersest possible manner a total of five instances of such supposed misconduct. And those instances are not identified with respect to the station(s) in question or the artists who were supposedly threatened or intimidated. While such vague, unverified and unverifiable charges may have worked for Joe McCarthy back in the day, we thought that government had gotten past that particular gambit by now. Apparently not.

Moreover, even if the five examples sketched anonymously in the Request could be shown to be every bit as bad as MusicFIRST would have us believe, that would still reflect the conduct of but a very, very small handful of stations in a radio industry numbering more than 14,000 stations. (By the way, one of the five anonymous instances referred to in the Request has been tracked down by a newspaper: it turns out to be a 100-watt noncommercial high school station in Delaware at which the students opted for a one-month boycott of MusicFIRST-related artists two years ago. It would be difficult to claim with a straight face that that incident reflects some industry-wide “pattern of threats and intimidation”.)

The Request also alleges that “broadcasters are refusing to accept ads” from MusicFIRST and its allies relative to the PRA. Again, however, the “evidence” of such refusals is slim at best. The Request mentions six – count 'em, six – stations (by call sign) which purportedly declined the MusicFIRST spots. It also says that a request to run the spots “in 38 different markets on a variety of different types of stations” was sent to Clear Channel – and as of the date of the Request, Clear Channel had not responded, even though “[i]t has now been over a week since we sent the script.” No real smoking gun there.

The Request claims that broadcasters are “spread[ing] malicious and untruthful information about the PRA.” MusicFIRST’s knickers are all in a twist because, for example, some anti-PRA materials distributed by some broadcasters refer to the PRA as a “tax”.   MusicFIRST’s position is that the term “tax” can refer only to situations involving making payments to a government, and since the PRA provides for no such payments, well, then, obviously, use of the word “tax” has got to be a Big Lie. But the word “tax” also means “a heavy burden”, without reference to the precise nature of the burden. If the promo items in question had been hypertechnical legal documents in which the use of the word “tax” called for ultra-precision, MusicFIRST’s criticism might have some basis. But the materials don’t appear to have called for such nice distinctions. And since pretty much everybody agrees that the PRA would, in fact, impose a heavy burden on broadcasters, it’s hardly malicious or untruthful to refer to it as a “tax”.

Finally, MusicFIRST frets that all of this supposed nefarious skullduggery is being orchestrated by the NAB and is “blatantly anti-competitive”.

So, gesticulating wildly at all that blue smoke and all those mirrors, MusicFIRST urges the Commission to come to the rescue. Interestingly, while the gist of the Request sounds an awful lot like a complaint under the long-gone Fairness Doctrine, MusicFIRST defensively claims that that’s not the case. But it asserts that broadcasters “have a statutory duty to use their monopoly . . . responsibly and not simply to further their own economic interests.”

The Commission, for its part, acknowledges that “substantial First Amendment interests are involved in the examination of speech of any kind.” It also recognizes that no remedies may be necessary, or available, to address the activities which MusicFIRST alleges.

But none of that is stopping the Commission from jumping right into this fracas with both feet, notwithstanding the anonymous, non-specified, unverified and unverifiable nature of MusicFIRST’s claims. By doing so, the FCC seems to be signaling its sympathy for the artists’ position – for sure, by inviting any comments at all the Commission appears to be giving the benefit of every conceivable doubt to MusicFIRST.

If you want to chip in your two cents’ worth, you have until September 8, 2009 to file comments. Reply comments are due by September 23.

What’s a “rural” area? To meet that condition, you must specify a transmitter site at least 75 milers (121 kilometers) from the reference points for any of the top 100 markets. (In an Appendix to the Public Notice, the Commission has helpfully listed not only all of the top 100 markets, but also their respective reference points.)

The geographical “rural only” restriction goes away when Phase 2 begins on January 25, 2010. From that date on, applications for new LPTVs, major changes and companion channels may be filed regardless of the proximity of the transmitter site to a major market.

In both phases, applications will be accepted first-come, first-served, and will be "cut-off" on a daily basis. That means that if you file your application one day after a conflicting application, you're out of luck (unless, of course, the earlier-filed conflicting application gets dismissed, in which case you would get a second chance). If two conflicting applications happen to be filed on the same day, they will be deemed to be “mutually exclusive”, which will entitle them to go through the FCC's auction process.

Applications for new LPTVs and replacement translators must specify an in-core channel (i.e., Channels 2 through 51). Incumbent analog LPTVs looking for digital companion channels should also try to specify an in-core channel, but if nothing suitable is available, a channel between 52 and 59 may be used if the applicant goes through a whole circus full of hoops outlined in the FCC's Public Notice. 

(Our colleague Peter Tannenwald raises an interesting question: why would an existing LPTV analog station with an in-core channel apply for a second in-core channel as a digital companion facility, rather than simply applying for a new station on that second channel? The problem with companion channels is that, at some point, that licensee will have to choose between its original channel and its companion channel – that is, in the end the licensee would have only one station on one channel. On the other hand, if the LPTV licensee got an in-core channel as a new stand-alone station – i.e., not a companion channel – and eventually did a flash-cut switch to digital on its original channel, it would end up with two channels, both of which it could keep.)

And on the topic of flash-cuts, the FCC reminds LPTV and Class A licensees currently operating in analog that they can file on-channel digital conversion (i.e., flash-cut) applications at any time – like right now, if they want.  The Commission encourages analog LPTV stations that are planning on filing flash-cut applications to do so before the FCC begins accepting first-come, first-served digital applications. Acting sooner rather than later will get you ahead of any tsunami of applications that might develop in, say, August (or January) as far as processing is concerned; it may also prevent other applications from limiting your options in some ways.)

The FCC application filing fee for a new LPTV station or for a major change in an existing station is $705.00. There is no FCC filing fee for flash-cut or digital companion channel applications. All applications must be submitted electronically thought the FCC's CDBS program.

It’s been years since the FCC has flung open the door for new (i.e., non-companion) LPTV stations anywhere. As a result, it is extremely likely, if not an odds-on mortal lock, that some serious demand has built up – demand that we will see unleashed on August 25. In other words, we can probably expect a ton of filings as soon as the door opens. Since the coming opportunity is strictly first-come, first-served, applications which are filed at the first opportunity will block out later-filed applications. That being the case, if you have specific notions of filing for a new station in a particular community, you would be smart to get all your ducks in a row so that you will be able to file on August 25. Otherwise, you run the risk that somebody else will get there first.

If you need a hand with putting together an application, let us know.

From the initial round of comments there appeared to be considerable disagreement as to whether the proposal really is a good idea. The HD Radio cheerleaders, of course, were all rah-rah for the power boost. But given that those same cheerleaders tend to paint a generally glorious picture of how good HD Radio is already, you have to wonder why they feel the need for a major league power increase. And while the threat of potential interference tends to get downplayed by the proponents, the fact that even they recognize the need to deny at least one class of station the proposed increase because of interference concerns does not inspire confidence. Still, the proponents urge expeditious action on the proposed power increase to fix “the coverage shortfalls and reception difficulties” which occur at the current levels. 

Not among the cheerleaders: NPR. NPR, which provided a wealth of test data and related analysis early on, has advised that it’s working on yet more testing, with a further report due to be presented this coming September. And a significant number of other early commenters expressed strong opposition to the proposal.

So the Commission has asked for further comment from the public. 

In particular, the FCC asks whether it should hold off on the proposed power increase until the next NPR study is submitted and people have had a chance to review and comment on it. Alternatively, the FCC suggests that it might be inclined to act now – and if it were to do so, it wants to know whether it should establish standards to “ensure the lack of interference” to analog operations on first adjacents. Along the same lines, the Commission asks whether it should establish “more specific procedures to resolve digital-into-analog interference complaints.”

If you feel like chiming in on any of these questions, here’s your chance. Remember – comments are due by July 6, replies by July 17.

Those folks have been permitted to file displacement, minor modification and digital “flash-cut” applications at any time. Some such applications have been filed before the transition end, even though they requested channels that can be used only after a full power station moves off of them. Stations filing early have claimed first-in-time priority, while others have cried “foul”, arguing that first-in-time is not fair unless everyone knows the timing rules.

Applicants were further frustrated when the FCC shipped some applications back and denied pleas to hold them and grant them in time to allow operations to start June 13, while it held others in abeyance, letting them keep their early file numbers. Now that the curtain has finally fallen on full power analog TV, the FCC is ready to deal with applications which were blocked by now-abandoned pre-transition operations.

The Commission is concerned about being fair to potential applicants who elected to wait until the transition to file their applications, for fear that they would be deemed unacceptable. So to give everybody an equal chance, the FCC has announced that any Class A, LPTV or TV translator application which was filed prior to the transition and which was blocked by pre-transition full-service facilities will be deemed to have been filed, and cut-off, as of June 30. That means that any other stations in that universe that want to file for displacement channels, minor mods or digital flash-cuts may do so up to June 30, and all will be given equal priority in time against one another and superiority in time over any MX application filed after June 30.

There are lots of unanswered questions about how the announcement will affect other priorities, such as those given to out-of-core displacement applications seeking in-core channels, Class A vs. LPTV, and digital over analog displacement. And that doesn’t even begin to address the question of whether the Commission can, consistently with the Administrative Procedure Act, change its processing priorities contained in Section 73.3572 of the Rules without a formal rule making. But after all, if the first FCC announcement clarified everything, what would we lawyers do to keep busy?

In particular, the FCC asks whether it should hold off on the proposed power increase until the next NPR study is submitted and people have had a chance to review and comment on it. That sounds like a reasonable approach.

But wait. The Commission then poses the following question, which seems ever so slightly loaded:

Whether the record in this proceeding, the real-world experience gained from over 1,400 FM stations operating for several years in the hybrid mode and the record of experimental authorizations at higher digital power levels warrant an increase in maximum digital operating power [either as proposed by the proponents or at some lower level]?

Given the extended predicate of that question, we suspect that there’s a better than even chance that the staff won’t be waiting around for any NPR studies, but you never know. The FCC also wants to know whether, if it does allow power increases immediamente, it should establish standards to “ensure the lack of interference” to analog operations on first adjacents. Along the same lines, the Commission asks whether it should establish “more specific procedures to resolve digital-into-analog interference complaints.”

If you feel like chiming in on any of these questions, here’s your chance. As of this writing the deadlines for comments and replies haven’t been announced, but the time frames are likely to be short, so check our blog (www.commlawblog.com) for updates.