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

Background

HD Radio represents the first – and, so far, the only – technology generally available to bring the radio broadcast industry into the digital world. And unlike digital television, HD Radio promises the Holy Grail-like property of IBOC – “in-band, on-channel” operation that would not require any major upheaval in channel allotments. Where DTV involved massive reassignments of channels (not to mention two-channel operations during the run-up to the final DTV transition), radio licensees can stay on their original channel and simply tack-on digital operation much like a standard subcarrier (SCA) service.

The technology was developed by private parties, who spent years trying to convince the Commission that their IBOC system would work. The FCC agreed in 2002, despite considerable skepticism voiced by folks who did not happen to have any direct pecuniary interest in marketing the HD Radio system. But again, HD Radio was and remains the only game on the table for digital radio broadcasting. So the Commission, recognizing the seemingly inexorable movement of all media away from analog and toward digital, had little choice: if the radio industry was to be goosed toward digital, it made sense to officially bless the only system to walk in the door promising digital service. The fact that that system happened to be IBOC obviously sweetened the pot.

The digital radio specs originally adopted by the FCC were designed by HD Radio’s proponents and cheerleaders, who assured the Commission that those specs would be sufficient to deliver a station’s digital service to everybody who could receive the station’s conventional analog signal. (In industry parlance, digital coverage would “replicate” analog coverage.) The crucial parameter was power: a station’s digital ERP was set at one percent of its analog ERP (i.e., 20 decibels below carrier, or -20 dBc).

Oops. It didn’t take long to realize that full replication wasn’t happening, especially in “mobile and indoor environments” (a universe which, frankly, seems pretty all-inclusive, since it appears to exclude only non-mobile outdoor environments). And thus began the drumbeat for more digital power.

HD Radio cheerleaders pushed for an increase from 1% to 10% of authorized power for all but some Class B FM stations that happened to be “super-powered”.   That would represent a ten-fold increase – by any measure a very substantial boost.  FYI: “Super-powered” stations are those with ERP that exceeds the maximum for their class, or with facilities which produce a reference contour greater than the pertinent maximum class contour distance. See Section 73.211 of the rules for more detail.

While Team HD Radio pushed hard for immediate, or near-immediate, action on their request, others – primarily National Public Radio – urged a more cautious approach. But last November, NPR and the HD Radio proponents reached agreement on increased power levels and the FCC has now largely signed onto the terms of that agreement.

New Power Limits, Complaint Process

As described above, non-super-powered stations will be able to increase their digital power by 6 dB on their own with no prior FCC approval (provided that they notify the Commission within 10 days). But there’s more. 

Eligible stations would be permitted to apply for even greater power increases, up to a total increase of 10 dB over current levels – i.e., to -10 dBc. Because of the Bureau’s concern about possible first adjacent interference, the maximum increase beyond the 6 dB automatic increase described above will be based on a “go/no go” analysis designed specifically to protect potentially affected first adjacents. The analysis is based on calculated field strengths; anyone thinking that such calculations fail to account for peculiarities – terrain, environmental or technical –which produce anomalous results are invited to demonstrate those factors in the application.

Super-powered stations of any class – not just Class B – will be limited to “the currently permitted -20 dBc level or 10 dB below the maximum analog power that would be authorized for the class of the super-powered FM station adjusted for the station’s [HAAT], predicted in accordance with Section 73.211(b).” And unlike their non-super-powered pals, super-powered stations will not be permitted to crank up their digital power with no prior FCC say-so. Rather, super-powered stations will have first to file an application, in the form of an informal request, for any increase in digital ERP. 

If you’re unsure of whether your station is “super-powered”, fear not: the Bureau has posted a jim-dandy gadget on the Audio Division’s webpage that determines whether any station is super-powered and, if so, calculates that station’s maximum HD power. You can try this tool – dubbed the “FM Super-Powered Maximum Digital ERP Calculator” (presumably, “super-powered” here is not intended to modify “calculator”, but you never know) – by going here and entering the station’s call sign and Facility ID Number.

While the Bureau’s decision clearly signals its interest in promoting digital radio, the decision nonetheless provides a formal complaint mechanism for first adjacents convinced that they are suffering as a result of a neighboring station’s digital power increase.    The complaint process is not, however, particularly user-friendly.

If a full power analog station (LPFMs and translators need not apply) believes that it is receiving interference within its protected contour from an HD station operating with digital ERP in excess of -14 dBc, the interferee must first attempt to “work cooperatively” with the interfering station to resolve the issue. That is done by progressively reducing the HD station’s digital operating power until a mutually agreeable power is reached.   If cooperation is successful, the HD Radio station must simply notify the Commission of its new digital power. 

If no amicable resolution is reached, the station receiving interference may file a complaint with the FCC. This is not a streamlined complaint process. Rather, the complaint must be supported by at least six reports of on-going (not transitory) interference. Each report must include a map showing the location of the reported interference and a detailed description of the nature and extent of the interference at that location. Interference allegedly occurring outside the station’s protected analog contour will not be considered. 

The Bureau is supposed to act on such complaints within 90 days. As a concession to the likelihood that the Bureau may have difficulty meeting that deadline, the new rules provide that an allegedly interfering station must, when the 90-day deadline is reached, reduce digital power to -14 dBc pending Bureau resolution of the complaint. If complaints continue, the Bureau may order further reductions – first to -17 dBc, later to -20 dBc – pending Bureau action on the complaint.

Such a mandatory reduction scheme may seem helpful to the suffering first adjacent complainant, but let’s think about that for a minute. The mandatory part kicks in only after: (a) the complainant has learned that its protected contour is getting beat up and has identified the apparent offender; and (b) the complainant has tried, unsuccessfully, to “work cooperatively” with the interfering HD station; and (c) the complainant has compiled the necessary showing (at least six on-going instances, mapped and documented); and (d) the complainant has filed its complaint; and (e) 90 days have then passed. If the complainant turns out to be correct, that means that it will have had to suffer months, possibly even a year or more, of harmful interference before getting any relief.

STAs available NOW!

It’s pretty clear from the decision that the Bureau really wants to give HD Radio Nation a big leg up. Further underscoring that is the fact that the Bureau is making the initial 6 dB power increase available to HD Radio licensees even before the new rules have become formally “effective”.

The effective date of the rules will occur as of the later of: (a) thirty (30) days after publication of the decision in the Federal Register; or (b) announcement in the Federal Register of OMB approval of the new rules. But that’s obviously too long to wait, so the Bureau has invited requests for STAs to increase power (by up to 6 dB). The Bureau has even posted a handy-dandy step-by-step instruction on how to file such a request, detailing precisely what information to include in it.

The bottom line here is that the Commission is clearly committed to the concept of digital radio . . . even though that service has been struggling for years, without much apparent success, to gain any kind of traction in the marketplace, and even though broadcasters themselves have been less than enthusiastic about it (at least judging from the dwindling number of stations seeking to take the HD plunge). Still, the Commission is doing its best to prop HD Radio up. That may be just what the doctor ordered, and it may turn out to be a huge boon to the radio industry generally. But if the digital power increase causes substantial interference to analog stations which still constitute the vast majority of the radio industry, that increase could turn out to be just one more unwanted and unneeded difficulty in an industry which is already dealing with a boatload of other difficulties. Time will tell.

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.

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.

One such unaddressed detail: the order did not specify when the application for assignment to the “eligible entity” has to be filed relative to the expiration of the permit. While the Commission assumed that the proposed acquisition of the permit would be consummated before the permit expired, the precise mechanics underlying the application were not spelled out in any detail. In fact, they weren’t spelled out at all.

The Bureau has now addressed at least that aspect. In its public notice, the Bureau has clarified that applications for CP sales filed pursuant to the “eligible entity” provision (i.e., Section 73.3598(a) of the rules) “should generally be on file at least 90 days prior to permit expiration.” So if you have a permit with a short remaining shelf life that you’re thinking about selling to an “eligible entity”, you should have the agreement tied down and the assignment application filed at least 90 days before the CP’s expiration date. (The idea is that that should ordinarily provide enough time for (a) the staff to process the assignment application through to a grant and (b) the parties then to consummate the deal.)

Since this “at-least-90-days-before-expiration” filing deadline had not previously been announced, the Bureau has established a grace period of sorts. Specifically, between now and May 31, 2009, the Bureau will accept CP assignment applications as long as the underlying permit has not expired prior to the filing of the application.  (The grant of any such assignment will be subject to a condition that the deal be closed within 30 days of the grant.)

But starting June 1, the Bureau will require that the sale to the eligible entity be consummated prior to the expiration of the underlying permit – hence the Bureau’s admonition that applications for such assignments be on file at least 90 days prior to the expiration.

The Bureau’s “guidance” here leaves unresolved a number of other practical questions concerning the implementation of Section 73.3598(a). We’ll just have to wait for further clarification(s). In the meantime, at least you know when your applications must be filed.

[Sidenote:  What, you may ask, is an “eligible entity”? Here’s how the Commission has defined that term for purposes of the Section 73.3598(a) provision, among others:

any entity that would qualify as a small business consistent with Small Business Administration (“SBA”) standards for its industry grouping, based on revenue. At present, the SBA defines as a small business a television broadcasting station that has no more than $13 million in annual receipts and a radio broadcasting entity that has no more than $6.5 million in annual receipts. To determine qualifications as a small business, the SBA considers the revenues of the parent corporation and affiliates of the parent corporation, not just the revenues of individual broadcast stations. In addition, in order to ensure that ultimate control rests in an eligible entity that satisfies the revenue criteria, the entity must satisfy one of several control tests. The eligible entity must hold: (1) 30 percent or more of the stock/partnership shares and more than 50 percent voting power of the corporation or partnership that will hold the broadcast license; or (2) 15 percent or more of the stock/partnership shares and more than 50 percent voting power of the corporation or partnership that will hold the broadcast licenses, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or (3) more than 50 percent of the voting power of the corporation if the corporation that holds the broadcast licenses is a publicly traded company.

Promoting Diversification of Ownershipin the Broadcasting Services, FCC 07-217, pp. 4-5. The Commission is still considering possible changes to that definition – for example, abandoning the gender- and race-neutral approach and, instead, specifically including ownership by minorities and women as a definitional component of the term. In view of the thorny constitutional issues that such a change would give rise to, though, the Commission is not likely to embrace that particular change, at least in the near-term.]

The issue of third-adjacent protection has been around since the LPFM service’s creation in 2000. As originally conceived by the FCC, LPFM stations were not subject to any third-adjacent protection vis-à-vis their full-service siblings. But because of concern that a gazillion LPFM stations peppered across the landscape would cause erosive interference to existing full-power stations, Congress promptly stepped in and overruled the Commission by amending the Communications Act to insure that third-adjacent protections would be retained. Still, acknowledging some doubt as to the extent that such interference really does pose any threat, Congress directed that the FCC study the issue further.

That in turn led to the 2003 Mitre Report, prepared for the Commission by the Mitre Corporation (at a cost of more than $2,000,000). Mitre concluded that third-adjacent interference should not be much of a problem. (Mitre’s conclusions have been questioned by some, including most notably the NAB.)

Buoyed by the Mitre Report, in 2004 the FCC asked Congress to re-amend the Act to delete the third-adjacent provision which had been added in 2000, but it remains on the books to date. As reported in our December, 2007, Memo to Clients in late 2007 the FCC adopted interim processing rules that would permit LPFM stations to seek waivers of the second-adjacent channel protections. (A rulemaking to make such procedures permanent is still pending.) The 2007 action also boosted the status of the LPFM service in a number of respects.

The bill dropped into the hopper this week would further elevate the status of LPFM stations.  Interestingly, though, the bill identifies one broadcast service which will still trump LPFM. The bill provides that third-adjacent protections must be maintained for full-service noncommercial FM stations which provide radio reading services (RRS) on their SCA’s. But if third-adjacent interference is such a problem that RRS need statutory protection, why should such interference be permitted for everybody else? (The RRS carve-out gives rise to other conceptual problems as well: what if a commercial station puts an RRS on its SCA – shouldn’t it be entitled to protection? And is this carve-out constitutionally permissible, since it appears to impose different regulatory standards based on the content of one’s transmissions?)

Perhaps more significantly, the bill would also bolster the Commission’s quixotic efforts to promote “localism” in broadcasting generally. The bill is critical of broadcasters, suggesting that there has been “too much [media] consolidation” and that, as a result, “there have been strong financial incentives . . . to reduce local programming.” The bill calls for a “renewal of commitment to localism”. The bill also suggests that increasing the number of LPFM stations will increase minority and female ownership in broadcasting and will enhance communications during “local or national emergencies”. 

The Commission (whether under Acting Chairman Copps or under his permanent successor) is likely to read that Congressional language as a direction to charge full speed ahead with the localism proposals which largely languished over the last year. While the Commission’s continued obsession with the DTV transition is likely to distract it from “localism” for another couple of months, we can anticipate a return of the “localism” juggernaut before too long.

If the bill passes and third-adjacent protections (except for NCE stations with RSS on their SCAs) are eliminated, and if the FCC then were to pick up where it left off back in 2007 and adopt final rules eliminating the second-adjacent channel protections, full-power FM stations will be protected only from co-channel and first-adjacent interference (whether the source is LPFM, FM Translator or FM Booster operations). Given the NAB’s opposition to LPFM in the past, this should shape up to be a good fight. Stay tuned.

To be sure, the April, 2008, public notice included the following tip: 

The Media Bureau will periodically update “The Public and Broadcasting” to reflect pertinent developments in the law, providing the date of the update on the front cover of the publication. Licensees should check the Commission's website for the current version (at http://www.fcc.gov/mb/audio/decdoc/public_and_broadcasting.html) when they undertake regular updates of their public files. 

So the Bureau may now be expecting each licensee with a public file, as a part of the routine maintenance of that file, to check the FCC’s website for updates. Of course, the Commission hasn’t incorporated any such requirement into its rules, but that doesn’t appear to faze the Bureau. 

Despite the fact that the size of the PDF file currently comprising the July, 2008, version is nearly 100 times bigger than the PDF of the April, 2008, edition (an incredibly whopping 14 MB compared to the far more reasonable 190 kB), it does not appear that there are any major substantive changes in the new version. In fact, the only truly substantive addition appears to be a reference to the new Form 388 which full-service TV licensees are required to file to report on their efforts to educate the public about the DTV transition. (The new version also updates a couple of addresses for FCC contact people and makes a couple of very slight language changes which do not affect the overall substance of the information.) 

We suppose that we might applaud the FCC for being diligent about updating its own materials. But we can’t shake the notion that, when the Commission tinkers (and tinkering probably overstates what the FCC had done in this revision) with a document which EVERY FULL SERVICE LICENSEE is required to have in its public file, the Commission might want to think twice. At a minimum, the Commission should alert broadcasters of the availability of the revised edition. That alert should delineate the particular revisions being made, and might also advise affected licensees whether any earlier version will do the trick or, alternatively, whether it is absolutely essential to download the revised version. (Absent any contrary indication, the safest course will always be to download the latest and greatest, even if the new version does not materially differ from the older version.) And the Commission might also want to give thought to precisely what changes will warrant a whole new edition. 

Unfortunately, this may just be harbinger of what life will be like as the Commission wades deeper into the “localism” thicket: substanceless messing around with “localism”-oriented documents which have very little actual significance at the local level, but messing around which imposes a significant burden throughout the broadcast industry. 

We can only hope that, at a minimum, somebody at the Commission will eventually figure out how to reduce the file size of The Public and Broadcasting PDF so that it doesn’t clog up too many Internet connections during the download.

Roberts and his pals get their crack at it.  It would seem more likely that the Commission might try to bring the CBS case up to the Supremes, to be heard at the same time as the Second Circuit/Fox case which is already there.  There is, of course, no guarantee that the Supremes would take the CBS case, but the FCC might think that the image of Ms. Jackson’s anatomy broadcast out to gazillions of football fans presents a stronger case for heavy-handed enforcement than does the situation in Fox (which, you will recall, involves ad lib remarks by Cher and Nicole Richie).  Another theory is that the FCC will just sit tight and do nothing with the CBS/Jackson case until the Supremes have issued their decision in Fox, which will probably occur sometime in the first half of 2009.

Whatever happens, the Third Circuit’s decision provides further confirmation that the Commission’s indecency policy in the wake of the 2004 Super Bowl has been a dramatic, and unjustified, over-reaction.

In addition, the Third Circuit found that the FCC improperly held the CBS stations liable for the actions of Ms. Jackson and fellow performer Justin Timberlake. CBS argued (the Third Circuit agreed) that Ms. Jackson and Mr. Timberlake were independent contractors and not employees for the purposes of that broadcast. Thus, CBS argued, the CBS stations should not have been held responsible for actions of individuals that were not its employees.
The FCC argued that, regardless of whether or not Ms. Jackson and Mr. Timberlake were employees, a broadcast licensee is in and of itself responsible for what is broadcast on its station. Although the Third Circuit found that such "strict liability" was appropriate in some circumstances, cases involving the First Amendment require the FCC to prove some degree of "scienter". "Scienter" roughly means "prior knowledge" or "prior intent", although the Third Circuit acknowledged that it is possible to find scienter even without actual prior knowledge if the party in question acts recklessly with regard what is being broadcast. For instance, according to the Third Circuit, a broadcaster's failure to use available preventative technology, such as a delay for live programming, might be reckless and the broadcaster might have sufficient scienter to be held liable for anything contained in the live broadcast. With respect to CBS, the Third Circuit found that the evidence was insufficient for the court to make a determination.

The Third Circuit vacated the FCC's order imposing the forfeiture on CBS and sent the case back to the FCC for further consideration. However, as the Supreme Court agreed to hear the FCC's appeal on the substantially similar "Golden Globes" case from the Second Circuit, it seems likely that the FCC would want to consolidate that case with the Third Circuit's decision and seek review of both at the same time.

The NOI/NPRM also specifically mentions the possibility of "concurrent" sponsorship ID's, by which it presumably means some disclosure to be made to the audience simultaneously with the embedded product reference.  How such concurrent mentions might work for radio programming (and yes, the NOI/NPRM is directed to both TV and radio) is not at all clear.  And while concurrent mentions might strike one as obviously intrusive and distracting on television, the Commission notes the "apparently common existing practice of superimposing unrelated promotional material at the bottom of the screen during a running program", and suggests that that practice undercuts any claim that concurrent announcements would infringe on the program's artistic integrity.

The Commission has demonstrated an overheated interest in "sponsorship identification" for the last several years - recall the multiple VNR inquiries, as the most obvious example.  The NOI/NPRM is in line with that interest, but it extends it in a way which could have a serious adverse impact on broadcast operations.  Having to determine which products happen to be identifiable by commercial design, and then having to announce each of those products concurrently with their on-air appearance, would likely create a substantial impediment to the development and broadcast of programming.  Imagine, for example, what a TV screen would look like during an NFL or MLB game, when every piece of logo-identifiable athletic gear (helmets, shoes, bats, balls, gloves, shirts, etc., etc.) and every off-field amenity (Gatorade, Motorola, etc.) would presumably be subject to the sponsorship ID requirement.  And let's not even start to talk about a NASCAR race.

One might also legitimately ask what purpose would be served by such a requirement?  While the NOI/NPRM invokes the "public's right to know who is paying", the NOI/NPRM does not dwell on the questions of whether the public is perhaps smart enough to realize that the Coke cups in front of Paula, Simon and Randy aren't there by accident, or that there is a reason that Nike has chosen to put its logo where it does.  At bottom, the Commission appears to assume that there is in fact some overriding public interest in requiring sponsorship identification - but the Commission fails to explore exactly what that public interest might be. Increased regulation of embedded advertising will inevitably draw the Commission even more deeply into content regulation than it has previously ventured - and, as a result, the Commission will be drawn even closer to obvious First Amendment issues that should not, cannot, be resolved by broad platitudinous references to "the public's right to know".

Ideally, the Commission will in the end seek to avoid the treacherous constitutional waters toward which it has set sail.  But if it does not, the substantial burdens on broadcasters which would likely flow from increased sponsorship ID requirements, combined with the substantial content-regulation that would necessarily accompany such requirements, will ultimately require far greater justification than the Commission has thus far demonstrated.

The comment and reply comment deadlines for the NOI/NPRM have not yet been established.  Check back to our blog for updated information which will be posted when available.

The Commission has fumbled and stumbled in trying to develop some coherent indecency policy over the last 35 years or so, ever since Carlin fantasized that there might be some such policy and then proceeded to skewer that imagined policy in his monologue.   While the Supreme Court tried to do the FCC a favor in 1978 by interpreting the Commission's initial decision narrowly, the Commission has, over the years, largely ignored that narrowing.  The result is, among other things, the current Golden Globes policy that flatly criminalizes the broadcast utterance of "fuck" or "shit" - unless, of course, those words occur in Saving Private Ryan. 

Carlin got it right in his monologue.  Not that there was an FCC policy, or that there should be an FCC policy, but rather that such a policy would be pointless and meaningless and contrary to our ability to communicate with one another.  While Carlin probably did not approve of the path the FCC has taken in response to his monologue, Carlin must certainly have appreciated the rich irony of that path and the effectiveness with which it underscored his essential point.

Many feel the Commission has gone overboard with the tentative conclusions presented in the NPRM (adopted on December 18, 2007).

  We can look for considerable resistance to the proposals from a variety of sources, including the

National Association of Broadcasters, once comments start to roll in. 

Comments will be due 30 days following publication in the Federal Register, with reply comments due 30 days following the initial comment deadline. 

Check back on this blog for updates.

The following is a summary of the nitty-gritty of the NPRM.  Broadcasters in particular should recognize that, if the FCC's proposals are adopted, the broadcast industry will be subject to very substantial new paperwork and recordkeeping obligations.  Moreover, those obligations will almost certainly give rise to an increase in public involvement -- both pre-broadcast and post-broadcast -- in each broadcasters' programming decisions.  While such involvement is not necessarily a bad thing, the potential for mischief and worse is substantial.

• The Commission has tentatively concluded that each licensee should be required to convene a permanent advisory board consisting of community leaders and officials.  Regular, quarterly licensee meetings with this board would be mandatory.  These meetings would assist each licensee in ascertaining the issues of primary interest in its community, leading to more localism and diversity-focused programming.

The Commission is also considering the adoption of additional rules/guidelines to foster improved communication between licensees and their communities, including the following:

i.    Ad hoc viewer surveys via telephone or Internet

ii.    Focus sessions or "town hall" meetings with viewers to help prioritize issues to be covered through news, public affairs, public service, and special programming

iii.   Participation by station managers/personnel on community boards, councils and commissions

iv.   Dedicated telephone numbers, websites and email addresses, publicized during programming, to facilitate community dialogue

• The Commission referenced the Enhanced Disclosure Order released simultaneously (see above for links to further coverage), which among other things, introduced a brand-new comprehensive disclosure form (Form 355) and implemented a requirement that stations post the majority of their public files on their websites.  While the rules adopted in the Enhanced Disclosure Order apply solely to television, the NPRM suggests that the same rules might soon apply to radio.  The NPRM repeatedly cites to the Commission's Digital Audio proceeding (in which the Commission adopted the IBOC standard for digital broadcasting by AM and FM stations).  In that proceeding, the Commission sought comment on similar enhanced disclosure requirements for radio.  But the window to participate in that proceeding is now closed.  One might fairly conclude that the Commission may intend to impose similar or identical enhanced disclosure requirements on radio broadcasters with no further opportunity for those broadcasters to object.

• Stations may be required to have personnel staffing their facilities during all hours of operation, thereby eliminating remote control operations currently permitted.
  

• The Commission has tentatively concluded that it will reintroduce renewal application processing guidelines incorporating a specified minimum percentage of programming aimed at addressing local issues.  Licensees meeting the requisite percentages would have their renewals processed by the Media Bureau on delegated authority, while those falling short would have their renewals considered by the full Commission.  The Commission is seeking comments on the content of these guidelines and how they would be measured.

• The Commission is considering a reversion to its pre-1987 main studio rule, which required each station's main studio to be located within its community of license.  As a result of repeated relaxations of that rule over the last 20 years, under the current rule a station's main studio may be located within either (a) the principal community contour of any station, of any service, licensed to its community of license or (b) 25 miles from the reference coordinates of the center of its community of license.  Either way, the current rules plainly permit stations to locate their main studios at considerable distance from their communities of license.
  

• The Commission is seeking comment on whether it should require website posting of the requisite on-air announcements concerning soon-to-be-filed and pending license renewal applications.
  

• The Commission is seeking comment on whether it would be helpful for the Commission to introduce rules designed to allow stations to review network programming sufficiently in advance of airtime to determine whether the programming is unsatisfactory, unsuitable or contrary to the public interest.

• The Commission is seeking comment on the prevalence of voice-tracking (i.e. customizing the content of programs featuring popular out-of-town personalities to make it appear as though the personalities are actually local to the station's area when, in fact, the programming is produced elsewhere) and whether anything can and/or should be done to limit its practice.
  

• While rejecting the prohibition of national music playlists by licensees (and a corresponding requirement that stations give airplay to local artists), the Commission is seeking comment on whether it should require licensees to maintain and make available data regarding the airing of local music.  This disclosure would also include descriptions of how their playlists are compiled.  Their information would be used in consideration of renewal applications.
  

• The Commission has tentatively concluded that it should allow additional qualified low power television ("LPTV") stations to be granted Class A status.  The Commission is seeking comment on its conclusion, how to define eligibility, and its statutory authority to take the action.
  

• The Commission noted that it intends to commence a proceeding to propose rules promoting access by cable and satellite subscribers to the programming of television broadcast stations licensed to communities in the state in which they live.
  

• The Commission directed its Media Bureau to develop a new computer program to assist potential radio applicants in identifying suitable available commercial FM spectrum in the location in which they want to operate.  This will alleviate the need to hire consulting engineers, which the Commission hopes will trigger increased localism in broadcasting, and diversity in radio ownership and programming.
  

• The Commission also observed that it is important that broadcasters provide timely and accurate emergency information, which it will tackle in the pending Emergency Alert System Further Notice of Proposed Rulemaking, which the Commission stated it will take action on soon.
  

• The Commission referenced its Further Notice of Proposed Rulemaking concerning LPTV stations and a number of potential rule changes which would promote localism, such as providing the stations additional protection from interference from full-power stations.
  

• The NPRM referenced the Commission's December 18, 2007 Report and Order which introduced efforts and sought comment on actions to assist new entrants and small businesses (including minority- and women-owned businesses) to gain access to financing and spectrum opportunities, including station construction deadline extensions, while cracking down on race or gender discrimination in broadcast transactions and ownership representations.
  

• The Commission is investigating violations of its sponsorship identification rules in numerous proceedings, and may soon launch a proceeding to tackle the issue of embedded advertising - i.e. product placement.

As always, we encourage anyone with questions regarding this proceeding to contact us via telephone or email. 

We also encourage discussion on the blog, as it's important for the broadcast community to discuss and sort out these issues in preparation for the comment/reply comment period, which will play a vital role in how these rules/proposed rules evolve.

According to Communications Daily, Martin wanted his fellow commissioners to vote on a public notice which would have been issued on Tuesday, launching a comment period that would extend until December 11.  When his colleagues refused to sign on, Martin decided to issue the notice himself, which has led to immediate, widespread criticism.

"The Martin rules are clearly not ready for prime time," Copps and Adelstein wrote. "Under the Chairman's timetable, we count 19 working days for public comment. That is grossly insufficient. The American people should have a minimum of 90 days to comment, just as many Members of Congress have requested."

Copps and Adelstein added that it is improper for Martin to be holding the proposed Tribune buyout "hostage" in order to press the issue of a media ownership vote.  "We are prepared to vote on the Tribune waiver requests within three working days after the Chairman circulates a draft decision," Copps and Adelstein said. "There is simply no excuse for using Tribune as a human shield."

The full Copps and Adelstein joint statement can be read here.

According to the news release, Martin invites public comment on "his" proposals, but cautions that comments should be filed by December 11, 2007. The release does not mention reply comments.

No other aspects of the ownership rules would be changed, according to Martin's proposal.

It has been widely reported that the Chairman hopes to wrap up the ownership proceeding before the end of the year (December 18 has been mentioned as D-Day). By announcing, through this unusual press release, his own proposal for reaching a bottomline, Martin is presumably hoping to gain support from folks who might otherwise raise a ruckus (such as the ruckus that was raised back in 2003, when then-Chairman Powell forced the initial version of the new rules through the process, only to have it reversed in part by the courts). While his proposal would relax to some degree the newspaper/broadcast cross-ownership limitation, the relaxation would be considerably more modest than was originally proposed. Moreover, that would be the only change - in other words, the other multiple ownership limits would remain in place, unrelaxed.

If nothing else, it appears that the post-Thanksgiving/pre-Christmas period will be most interesting on the ownership front.

While the CAP requirement may entail costs for EAS participants needing to upgrade their facilities, there is not likely to be any immediate hurry on that front.  The FCC's requirement will not kick in until 180 days after FEMA announces its adoption of standards.  So even if FEMA were to adopt such standards as of June 1, compliance with the FCC CAP requirement would not be necessary until late this year.
 
In addition to the CAP requirement the new rules require EAS participants to transmit state and locally targeted EAS alerts originated by governors or their designees.  (The Commission is also considering whether that requirement should be extended to alerts issued by local, county, tribal or other state governmental entities.)
 
The FCC is also looking at other EAS enhancements to improve the provision of emergency notifications to the disabled and to non-English speakers.  And to make sure that the whole system is working as designed, the Commission may require additional equipment testing, station certification and/or post hoc assessments of EAS effectiveness following alerts.  The Commission's decision included a second notice of proposed rule making addressing these various proposals.