FM Translator Application Update: Last Chance Settlement Window Opened

Media Bureau provides MX applicants one last opportunity to avoid going to auction.

If you’ve still got one or more FM translator applications pending from the infamous 2003 window, listen up! The Media Bureau has opened a 62-day “Settlement Period” – up to and including July 22, 2013 – during which applicants with mutually exclusive (MX) applications may attempt to resolve their differences through engineering amendments or settlements.

For those of you who may have forgotten exactly which (if any) of your applications may still be alive and kicking, the Bureau has provided a list of the apps that the Bureau thinks are eligible for settlement (i.e., applications MX with one or more other applications). You can check that list out here (or in a more sliceable and diceable Excel version here). There are a total of 539 MX groups, so you’d better start looking now.

Important alert: The Bureau recognizes that its list may not be 100% complete, and it expressly encourages anybody who believes that one or more applications may have been omitted to get in touch with the Bureau immediately. Remember, to be on the list, your application has to be MX with at least one of the applications already listed.

All MX groups are heading to auction. But the Settlement Period affords pending applicants the chance to avoid the auction scenario by eliminating mutual exclusivities, either through negotiated settlement or unilateral amendment. Proposed negotiated resolutions may be universal – i.e., involving all members of a particular MX group – or non-universal – i.e., involving less than all members. But any proposed resolution – whether unilateral or negotiated – must “eliminate all mutual exclusivities between at least one application and all other applications in the MX group.”

In other words, all the applicants in a particular MX group can get together and work out a deal, or any subset of applicants can do the same, or just one applicant may be able to figure out a technical way to get itself out of mutual exclusivity hell. But in any of those situations the bottom line has got to be that at least one application is freed of all mutual exclusivities and thus becomes a (theoretically) grantable “singleton”.

The concept of “negotiation”, of course, requires that the MX applicants communicate among themselves. But as we all know, in the pre-auction context, MX applicants are absolutely prohibited by the FCC’s rules from engaging in any application-related communications with one another. No problem. The regulatory Cone of Silence has been lifted during the Settlement Period to permit inter-applicant discussions looking to resolve mutual exclusivities.

There are, of course, a number of gotcha’s here. For example, negotiated settlements are subject to the standard limitations on such deals, including restrictions on reimbursement. That means, among other things, that a dismissing applicant cannot expect to be paid anything more than its “legitimate and prudent expenses” in return for its dismissal. (The rules provide that that “legitimate and prudent expenses” cap does not apply to “bona fide merger agreements”, although whether such a merger arrangement might make sense in the FM translator context remains to be seen.)

And for anyone contemplating a unilateral engineering route out of mutual exclusivity, note that any amendment must be “minor” in nature, and it cannot create any new mutual exclusivities. Heads up, too: if the amendment specifies a transmitter site within either (a) 39 kilometers of any Appendix A Market and/or (b) any Top-50 Spectrum Limited Market, the amendment must include a Preclusion Showing. (For a refresher on Preclusion Showings, check out our previous posts on the subject.)

One more caution flag on the technical amendment front: our colleague Matt McCormick reports that, according to some informal advice from the Bureau’s staff, technical amendments will be processed on a “first-come-first-served” basis. That means an earlier-filed tech amendment will cut off any later-filed amendments that happen to be MX with the earlier-filed. So anyone contemplating an engineering fix should act sooner rather than later.

The Bureau’s public notice lays out the various procedural niceties involving in getting any proposals filed. We won’t get into the deep weeds on these here, but readers should know that some items are to be filed on paper and some electronically through CDBS – and there are even very specific instructions for how CDBS items are to be identified in the pre-form. Anyone contemplating the submission of any such proposal should review the notice carefully and be sure to comply with all details. 

The big thing for all to remember: the deadline for any settlement proposal or technical amendment is July 22, 2013.

The Bureau’s notice also includes an additional opportunity for anyone proposing a noncommercial educational (NCE) station as the translator’s primary station to avoid dismissal. As we reported last month, applicants seeking NCE authorizations are not permitted to participate in auctions. Since that prohibition cropped up after the 2003 FM translator filing window had come and gone, a number of still-pending applicants identified themselves as “NCE”, which was the kiss of death. To give those applicants a chance to avoid dismissal, the Bureau allowed them a brief opportunity to “de-select” the NCE status. As it turns out, though, there was yet another potential problem: an FM translator proposing an NCE station as a primary station is deemed to be NCE, so even if an applicant has chosen not to identify itself as “NCE”, it’s still subject to dismissal of its application specifies an NCE primary. 

Because of that, the Bureau is giving applicants in that position the green light to amend their applications to specify a non-NCE primary station. Such amendments will be treated as “minor”, but they must be submitted during the Settlement Period, i.e., no later than July 22, 2013. Failure to take care of this detail will result in the summary return (as unacceptable) any application specifying an NCE primary station – even if the applicant in question took advantage of last month’s “de-selection” opportunity.

LPFM Update: Effective Date Set for Remaining Changes from 6th Report and Order

In December of last year we reported on the Commission’s “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O was published in the Federal Register the following month, but (as we reported in January) that didn’t mean that all the new rules went into effect back then.

Rather, the changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 – and the revised version of FCC Form 318 – all had to be run past the Office of Management and Budget for its approval. (Those changes all involved “information collections” requiring OMB review thanks to the Paperwork Reduction Act.)

The Commission has now announced that OMB is happy with the changes. As a result, they will all take effect on May 23, 2013. It’s unlikely that the changes will have any immediate impact, since they relate primarily to LPFM applications, and there’s currently no opportunity to file for new LPFM authorizations. However, as we all know, the Commission is hoping to be able to open a window for new LPFM applications sometime in the near future – October, 2013 is one target date, although many are doubtful that the Commission will be able to hit that target. Anyone who expects to be filing any LPFM apps in that window should be sure to make note of the effectiveness of the 6th R&O changes.

FM Translator Application Update: Bureau Announces Ten-Day Window for NCE "De-Selection" Amendments

Window follows rejection of Request for Declaratory Ruling looking to get multiple NCE applications dismissed.

We’ve got good news for you if (1) you’ve got an FM translator application still pending from the 2003/Auction 83 filing window and (2) you identified yourself as a noncommercial educational (NCE) applicant when you first filed the application. The Media Bureau has announced that, between April 8-17, you will have an opportunity to “de-select” that NCE filing status. If you want to keep your application alive, you’ll take advantage of that opportunity.

In announcing this amendment window (and in a separate letter ruling), the Bureau made short work of a recently-filed Request for Declaratory Ruling which looked to thin the herd of pending applications by effectively prohibiting such amendments.  

The problem being addressed here arose when the Auction 83 window first opened in March, 2003. Back then, applicants seeking NCE authorizations were permitted to participate in such proceedings. At the time, NCE applicants were explicitly instructed to designate their status as “noncommercial educational” in the box provided on the Form 175.

Shortly after the closing of the Auction 83 window, however, the Commission revised certain of its procedures and processing rules for all NCE broadcast applications. Among the new rules was the proviso that any NCE application found, after a settlement opportunity, to be mutually exclusive with a commercial station would automatically be dismissed.  Further complicating matters, Section 1.2105(b)(2) specified that any attempt to change an applicant’s status from NCE to commercial would be an impermissible major amendment.  In other words, NCE applicants who had followed the FCC’s instructions and identified themselves as NCE in their applications had unintentionally placed themselves in a no-win situation if it turned out that their applications were MX with those of commercial applicants.

Recognizing the fundamental unfairness of the bait-and-switch situation which it had unwittingly created, the Commission in 2008 directed the Media Bureau to waive the major amendment prohibition to permit the de-selection of NCE status by applicants who could not have foreseen that indicating NCE status (as the FCC then required) might be an irreversibly fatal decision.

The April 8-17 window provides NCE applicants in the Auction 83 proceeding to take advantage of that opportunity.

In opening the window, the Bureau rejected a Request for Declaratory Ruling filed by a couple of commercial broadcaster less than two weeks earlier. The request suggested that, in order to afford NCE applicants the opportunity to “de-select”, the Commission would first have to open a notice-and-comment proceeding. The Request was clearly aimed at getting all those pesky NCE applications dismissed out of hand.

The Request, of course, ignored the fact that such “de-selection” opportunities had been routinely provided repeatedly in the past, and had been mandated by the Commission. In its separate letter ruling tossing the Request, the Bureau evinced little sympathy for the Request, characterizing it as “frivolous, repetitive and not warranting consideration by the Commission”. Ouch.

So the Media Bureau has once again deemed that the public interest will be best served by waiving the major change prohibition, since doing otherwise would be inconsistent with fundamental due process requirements.

Applicants who designated NCE status on their 2003 Auction 83 Form 175s will have a one-time opportunity to “de-select” this status by paper amendment and email submitted to the FCC between April 8-17, 2013.   (The specifics of the amendment process are set out in the Bureau’s public notice.)

FM Translator Application Update: Bureau Provides More Guidance on Preclusion Showings

Bureau gently prods applicants in the proper direction with a public notice that reads like “Preclusion Showings for Dummies"

As we have previously reported, FM translator applicants whose applications are still alive and kicking are subject to a variety of filing deadlines looming in the very near future. Different deadlines apply, based on whether the application has been identified by the Media Bureau as (a) one of 713 “singleton” applications or (b) one of a separate batch of 639 applications not satisfying the “singleton” criteria.

Some, but not necessarily all, of those 1,352 applicants must file “preclusion showings” as part of their required submissions. Apparently, from the filings that have already rolled in the door, the Bureau’s staff has concluded that at least some of the affected applicants haven’t fully grasped what’s expected of them. Accordingly, the Bureau has tried, tried again, this time by issuing yet another public notice providing further “guidance” or “clarification” of the filing requirements.

The notice, which reads like “Preclusion Showings for Dummies”, is relatively short and to the point. Where preclusion showings are required, the notice thoughtfully bold faces the word “required” as an additional helpful visual cue. The concepts don’t appear to be particularly complicated (but then we didn’t think they were particularly complicated when they appeared in the Fourth Report and Order or in the previous public notices). In any event, anybody with a translator application still in the hunt should be sure to review the public notice carefully and to follow its directions thoroughly.

Hint: We gather from indications we have received from Bureau personnel that one particular bugaboo involves applications which, as originally filed, proposed facilities within 39 km of a “Spectrum Available Market Grid”. If no changes at all are being proposed to those originally-specified facilities, then no preclusion showing is required. But if the applicant proposes to amend its original proposal – by changing power, height, channel, location, antenna pattern, etc. – then a preclusion study is required. 

That’s because the staff’s initial determination that the application was in a “Spectrum Available Market Grid” (and, thus, not subject to the preclusion showing requirement) was based on the originally-proposed facilities. Any change in those facilities could alter the underlying factors that made the application’s market “Spectrum Available” in the first place. The preclusion study, based on the application’s amended proposal, will allow the Bureau staff to assess whether the market remains “Spectrum Available” or whether it has become, as a result of the amended proposal, “Spectrum Limited”. 

Some might view the most recent public notice as an annoying bit of unwelcome bureaucratic niggling, but hold on there. The Bureau is trying to get the word out to all affected applicants sooner rather than later to ensure that those applicants will have been given every possible opportunity to satisfy the Bureau’s requirements before the applicable deadlines come and go. If, as appears to be the case, the Bureau has already noted considerable shortfalls along those lines in what has been submitted thus far, the Bureau is doing everybody a favor by trying again to point applicants in the right direction.

As we observed last month, a failure to give the Bureau what it wants could result in dismissal of your application(s).  It would be a shame to have come this far in the process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

FM Translator Application Update: Bureau Announces Window for Filing of Preclusion Showings

639 surviving applicants face the next hurdle in the now decade-long contest.

In the long-running reality show “Survivor – 2003 FM Translators”, if you happen to be a player whose FM translator applications haven’t yet been kicked off the island, heads up: the Media Bureau has just announced the next challenge. This time affected applicants have been given a 19-day window (from April 1-19, 2013) within which to submit their Preclusion Showings.

Which applications are subject to the challenge? Any of the 639 still-pending FM translator application originally filed in the 2003 window (for Auction 83) which specifies a transmitter site that is (1) inside a Spectrum Limited market and/or (2) within 39 km of any Spectrum Limited Market Grid. For those of you who may be unclear about whether you’re still in the game (and, thus, facing this next chore), the Commission has provided a list of all 639 lucky applications. You can find a PDF version of the list at this link, but we suspect that you may find this MS-Excel version a bit more useful in terms of slicing and dicing the data on the list, which spans ten single-spaced pages. Here’s the Bureau’s explanatory description of the list:

Attachment A lists each Auction 83 Filing Window tech box proposal for which a Preclusion Showing amendment must be electronically submitted by the April 19 deadline. The list is sorted by the state in which the specified community of license is located. The “Market” column lists, if applicable, the Fall 2011 Arbitron Market number as set forth in Appendix A in the Fourth Report and Order. Each market designation was based on the location of the proposal’s specified transmitter site. The “In SL Buffer” column identifies with a “Yes” each proposal that specifies a transmitter site that is within 39 km of at least one Spectrum Limited Market Grid.

And what the heck is a “Preclusion Showing” anyway?

The Bureau’s announcement of the window walks you through the practical end of how and what it expects you to file. In addition, the Bureau has issued a separate summary description of the tests (i.e., the “Grid Test” and the “Top-50 Transmitter Site Test” that will have to be satisfied in the Showings. We strongly recommend that any applicant planning to file one or more Preclusion Showings review both of these notices in detail and be prepared to jump through all the hoops set out in each.

Anyone who may be a little fuzzy on what this whole FM translator application situation is all about may want to revisit our extended collection of posts on the subject, which may be found here. (Just keep scrolling down - there are a lot of posts covering several years' worth of developments.)  At this stage of the game, though, if you’re wondering what a “Grid Test” is or whether you’re in a “Spectrum Limited Market”, you’ve got a lot of catching up to do.

For those of you who are still in the game and playing to win, remember: the window for Preclusion Showings opens on April 1 and slams shut on April 19. Good luck.

Update: Deadline Set for Oppositions to Petitions for Reconsideration of Latest LPFM Decision

Last December the Commission released its Fifth Order on Reconsideration and Sixth Report and Order in the long-running LPFM proceeding. Five parties weren’t 100% happy with the results so – surprise, surprise! – they have filed for reconsideration of various aspects of the FCC’s decision. The petitioners (with links to their respective petitions) are:

Prometheus Radio Project

Michael Couzens and Alan Korn

REC Networks

LET THE CITIES IN!!

LifeTalk Radio, Inc.

According to a notice in the Federal Register, if you want to oppose any (or all) of these petitions, you have until March 21, 2013Replies to any oppositions will be due by April 1.

While the opening of a new pleading cycle – with the consequent opportunity for a pleading war – is often a harbinger of delay, our guess is that that’s not the most likely scenario here. As we have reported, the Media Bureau is doing its darnedest to tee the next LPFM application window up as quickly as possible (maybe even by next October, if the Chairman gets his wish). It’s unlikely that a handful of recons will distract the Bureau from that mission, but you never know. In the meantime, look for continued progress in the Bureau’s efforts to clear the FM translator application dead wood, a necessary antecedent to the LPFM window.

FM Translator Application Update: Singleton List Released, Long-form Deadline Set

The FM translator application juggernaut rolls on. 

Having processed the Selections Lists and Caps Showings filed in January and having, as a result, tossed several thousand applications earlier this month, the Media Bureau has sifted through the remaining rubble and identified 713 singleton applications that may be grantable in relatively short order. The lucky 713 applications: (a) are apparently not mutually exclusive with any other applications filed back in the 2003 filing window and (b) don’t run afoul of the technical limitations imposed in last year’s Fourth Report and Order. (Helpful reminder: To satisfy those limitations, an application must be: (1) outside all Spectrum Limited markets and (2) not within 39 km of any Spectrum Limited market grid.)

Heads up, though. If you’re on the singleton list, you’ve only got until March 28, 2013 to prepare and file your long-form application (Form 349), along with any required filing fee and Form 159, in order to stay in the game.

The public notice announcing the singleton list also includes some guidelines relative to what you can and can’t do in the long-form application. Attention should be paid to those details, because a failure to comply could result in dismissal. It would be a shame to have come this far in the application process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

In particular, the long-form application may specify facilities (including, e.g., transmitter site, power, height, directional pattern, channel) different from those specified in the original 2003 “tech box” showing as long as they constitute “minor” changes. If the proposed changes would result in a site (a) within the 39 km buffer of any defined Market Grid and/or (b) at an out-of-grid location within a Top-50 Spectrum Limited Market, the applicant will also have to file a preclusion showing relative to the amended proposal. (If the facilities specified in the long-form Form 349 application are identical to those specified in the “tech box” filed back in 2003, no preclusion study is necessary.) 

Along with the public notice announcing the singleton list, the Bureau has also released a separate set of guidelines describing in considerable detail the required preclusion showing. Again, attention should be paid to the details, since the Bureau has made clear that preclusion studies must be complete and sufficient and, most importantly, they may not be “amended, corrected, completed or resubmitted” after March 28.

Once the March 28 deadline has come and gone, the Bureau will review the amendments, dismiss any applications that fail to satisfy the terms set out in the public notice, and the rest will be put out on a public notice which will trigger a 15-day petition to deny period. Of course, any of the 713 applicants who fail to file a Form 349 by the deadline will also be dismissed.

More FM Translator Applications Down the Tubes

Media Bureau gives Dave Doherty a break, provides itemized list of latest victims

In what may be the last peristaltic spasm of the FM translator review process, the Media Bureau has announced that it has dismissed “several dozen” (by our count it’s a total of 40) remaining FM translator applications that were filed back in 2003. According to its public notice, the Bureau “has now completed” its review of the Selection Lists and Cap Showings filed last month by translator applicants and “has identified those applications which do not satisfy filing requirements”. So if your application (a) wasn’t already tossed out in last week’s mass dismissal and (b) isn’t listed in this most recent batch, then presumably you’ve survived the cut and your application can now be processed. 

No official word yet on when the next processing steps are likely to happen, but we’re guessing they’ll be happening sooner rather than later – possibly in a matter of a few weeks. As we have previously reported, the Commission has made clear its hope that the next LPFM window can be opened promptly (as early as next October, if the Chairman has his way), and the Bureau has thus far been doing its darnedest to turn that hope into reality.

One additional note: Unlike last week – when the Bureau tossed more than 3,000 applications without issuing any itemized public notice specifically identifying those applications – this time around it has provided a listing of the 40 latest victims in PDF and Excel formats, convenient for easy slicing and dicing. That should take our friend Dave Doherty off the hook this time around.

Lists of Surviving FM Translator Applications Now Available

Apparently undaunted by the approaching blizzard, Dave Doherty at Skywaves Consulting up in Millbury, Massachusetts, has been hard at work culling potentially useful information from CDBS about the FM translator application situation. Now, in addition to the lists of dismissed applications he passed along to us a few days ago, he has provided a couple of lists reflecting all the vintage 2003 FM translator applications that survived the first round of dismissals. Here you go: a list of surviving applications arranged alphabetically by applicant, and a list of the same applications arranged by state and city. This, ideally, will help address the concerns expressed by a commenter to an earlier post,

Dave cautions that the Media Bureau has indicated that more applications may be headed for the Dismissalville in the near term – thanks, apparently, to the fact that some applicants’ tech showings were either messed up or MIA, thus requiring additional staff analysis. The smart money figures that such additional analysis will identify more applications destined for the dumpster. Presumably the Bureau will let us all know if and when that happens, but you never know.

And while caution is being dispensed, we’ll add here that we have not test-driven Dave’s latest set of lists, so you rely on them at your own risk. But, as we noted the last time around, the lists provide a more useful approach than the Bureau’s public notice. Thanks again, Dave – and don’t hurt yourself shoveling snow!

FM Translator Dismissal Aftermath - The Private Sector to the Rescue!

Searchable lists of the 3,000+ dismissed applications now available

Let’s have a big CommLawBlog cheer for the private sector! As we reported yesterday, the Media Bureau unceremoniously dumped about 3,000 FM translator applications into the trash. In doing so, the Bureau chose not to issue the type of public notice that usually accompanies such actions. Instead, the staff issued a public notice announcing, in general terms, that it had tossed the apps, and advising that anyone who wanted to know which applications had been tossed could knock themselves out performing wildcard searches in CDBS. As we observed, this approach was not especially helpful to folks in the private sector who might have an interest in figuring out which applications were gone and which are still alive and kicking.

Fortunately, Dave Doherty from Skywaves Consulting LLC in Millbury, Massachusetts has come to the rescue. Dave has prepared two lists of all the dismissed applications. One list is organized alphabetically by applicant, the other alphabetically by state. They both contain the same data – Facility ID Number, Channel, Frequency, State, City, Applicant Name and File Number.  Both lists are searchable. We haven't doublechecked Dave's handiwork, so if you're inclined to rely on it, you do so at your own risk.  But at least it attempts to provide a more useful approach to the dismissed translators than the FCC did.  We asked Dave if we could post links to his two lists for our readers, and he graciously agreed. Thanks, Dave! (Dave’s contact information is available on his lists, if you want to thank him personally.)

Bureau Disposes of FM Translator Applications

As drive toward an LPFM auction moves forward, applications get tossed for real while Selection Lists/Caps Showings get released, sort of.

That loud flushing noise you may just have heard was the sound of about 3,000 FM translator applications heading down the tubes. Having analyzed the various Selection Lists and Caps Showings submitted by translator applicants late last month, the Media Bureau has announced that it has now tossed “approximately 3,000” vintage 2003 translator applications. In the same public notice, the Bureau has also announced the “release” – and we use that term loosely – of all of the underlying Selection Lists and Caps Showings submitted during the recently closed Selection Filing Window.

Which applications got thrown out and which didn’t? Good question. The Bureau’s one and only (apparently) public notice on the subject doesn’t include a list of the dismissed applicants, or applications, or file numbers, or any of the other conventional data you might expect. If you want to know any specifics, the staff apparently expects you to head online to CDBS, where you can probably figure out precisely which applications got dismissed and which continue to live on if you’ve got boatloads of (a) time and (b) motivation and (c) luck.

According to the public notice, each of the translator applications dismissed today “will include the following CDBS Public Notice comment: ‘Dismissed February 5, 2013 per DA 13-XX.’” A quick random spot check of FM translator applications dismissed today did not turn up any such comment, but the staff may still be working on that. By performing a “wildcard” search we were able to generate a list of 3,033 translator applications that were (a) filed in March, 2003 and (b) dismissed as of today. However, that list identified the applications only by file number – no reference to applicant or community of license or channel – so it’s not clear how useful that list would be to anybody.

[For the record, here’s how we performed our search: 

(1) Go to CDBS and click on “Search for Application Information”;

(2) For the following fields, enter the information indicated (see illustration):

            File Number:                   BNPFT            200303%

            Application Status:      Dismissed

            Status Date:                    02/05/2013      02/05/2013

(3) Click on “Submit Application Search” button.]

Of course, if you happen to have an idea of what you’re looking for – maybe you’re interested in a particular applicant, or a particular community, channel, state, etc. – you’re in better shape, because you can narrow down the wildcard search accordingly.  But we suspect that even such a narrowed-down quest will yield results that will require considerable patience to sift through.

If you want to see the Selection Lists and Caps Showings the Bureau has now “released”, that, too, will require considerable effort. Each applicant’s Lists/Showings submission has apparently been uploaded to CDBS, but only to the applicant’s last-filed “BNPFT” application listing. To find a particular applicant’s submission, the staff (in a footnote to the public notice) instructs you to: (a) perform a wildcard search for all FM translator applications filed by that applicant in March, 2003; (b) once that search produces a list of applications, click on the “Info” link relative to the first application at the top of the list; (c) when the Info page comes up, click on the “View Correspondence Folder” link; and then (d) click on the link labeled “Click to View Imported Letter” bearing the date February 5, 2013.   Repeat as necessary.

On the one hand, the Media Bureau is to be applauded for digging through the Selection Lists/Caps Showings submitted just last month and weeding out thousands of ten-year-old applications that were clogging up the system. The Bureau is, of course, under the gun to tee up an LPFM auction – as early as next October, if the Chairman has his way – so there was pressure to get this job done sooner rather than later, but it’s still impressive that the staff managed to handle it as quickly as it did.

On the other hand, the apparent desirability of quick action may not completely excuse the less than helpful manner in which the staff’s action has been packaged and presented to the rest of us. For example, applicants who remain hopeful that their applications may yet be granted have no easy way of determining which, if any, other applications may still be standing in their way. It’s also difficult to confirm that the list of dismissals conforms to the various Selection Lists/Caps Showings submitted by the affected applicants. Is it possible that some applications that should have been on the chopping block were inadvertently spared, or vice versa? Good luck figuring that out. Sure, we’re only talking about FM translators here, and sure, these applications have been sitting around for ten years already, for crying out loud. But does that justify imposing unusual burdens on any translator applicants still theoretically in the fight?

In the end, we suspect that the Bureau’s approach, inelegant though it may be, is not an inappropriate way to signal the start of the shut-down process for Auction 83, an auction that never really got off the ground in the first place. To be sure, some surviving applications will somehow remain to be processed and, eventually, granted. But it has long been evident that, in order even to begin to wrap things up here, drastic action would have to be taken. The Bureau’s public notice reflects such action.

Update: Effective Date Set for New LPFM/FM Translator Rules

As we reported last month, in December the Commission released its “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O has now been published in the Federal Register, which means that most (but not all) of the new rules are set to become effective on February 8, 2013.

The changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 will not take effect on that date, though. All those sections involve what we call “information collections”. As a result, they are subject our old friend, the Paperwork Reduction Act, which means that they will have to run past the Office of Management and Budget first before they can be implemented.

Note that the establishment of effective dates for the new rules should not affect the fast-approaching deadline by which FM translator applicants must file their “Selection Lists” and “Caps Showings”. As we have previously reported, the window for filing those lists and showings opens on January 10 and closes on January 25.

FM Translator Application "Selection Lists"/"Caps Showings" Requirements Clarified

With January 25 deadline fast approaching, the Media Bureau has provided some (non-binding) guidance to FM translator applicants.

If you’re one of the folks with a bunch of FM translator applications still pending from the 2003 filing window, you’re probably hard at work trying to figure out what, if anything, you should be filing in response to the Commission’s public notice announcing the deadline for “Selection Lists” and related “Caps Showings”.  (You might have missed that notice, since it was released the afternoon of December 21 – that is, the Friday of the long Christmas weekend.)

As we pointed out, in the wake of that notice a considerable amount of work must be done, and there’s not a lot of time to do it in. The window for filing Selection Lists and Caps Showings opens in two days (on January 10), and closes on January 25

But the Media Bureau feels your pain, and in an effort to assist translator applicants, the Bureau has released a set of 12 clarifying examples (actually, it’s 17, if you count the five sub-examples tacked onto Example 12). They provide reasonably specific directions for what is and is not expected of applicants in a variety of possible scenarios. (They’re especially helpful if you happen to have five applications pending in the Atlanta area, three of which are Inside the Atlanta Market.) So translator applicants currently struggling with making selections and assembling showings would be well-advised to take a few minutes (and a couple of deep breaths) and check out the Bureau’s examples. That may save some time and aggravation.

But heads up. While the examples are “intended to provide general guidance reflecting the staff’s initial interpretation of the application selections and cap showings procedures”, they may not be the last word.   The Bureau’s notice specifically disclaims that the examples “are not intended to establish binding precedent”. Further, “[t]he staff will make specific rulings in response to actual selections and submissions on a case-by-case basis.” In other words, applicants should feel free to rely on the examples, but such reliance will not necessarily safeguard an applicant’s selections or showings from adverse determinations by the staff down the line.

Good luck.

FM Translator Application Dismissal Lists - A Clarification

“Selection Lists” may be filed by email.

Last month we reported on the Media Bureau’s announcement of the deadline and procedures for filing lists of FM translator applications to be dismissed pursuant to the provisions of the “Fifth Order on Reconsideration and Sixth Report and Order” (which we’ve previously referred to as the 6th R&O). In our post, we said that “[a]ll showings will be submitted on paper – there will be no electronic filing.”

Oops. As a helpful member of the Audio Division has pointed out to us, the Bureau’s public notice DOES provide for submission of the Selection Lists (and related “Caps Showings”) by email, which is technically “electronic filing” (even if it doesn’t involve CDBS). 

The address to use: FXshowings@fcc.gov. While that address may or may not be operational as of today (January 3, 2013), we have been advised that it’ll for sure be up and running by January 10, the day the window for filing Selection Lists and Cap Showings opens.

But heads up. The FCC’s email system will not accept attachments larger than 10 MB. The Bureau’s notice instructs that “files beyond that size [i.e., 10 MB] should [be] divided into multiple sub-10 MB documents and sent via separate e-mails.”

Our apologies for any confusion that we may have caused.  And many thanks to our sharp-eyed reader who brought this to our attention.

Update: Deadline for FM Translator Dismissal Lists Announced

Public notice spells out showings that must accompany applicants’ choices of which 2003-era FM translator applications will stay and which will go

If you’re one of the lucky folks who happens to have translator applications still pending at the Commission from the famous 2003 filing window, heads up – depending on how many applications you have and what markets they propose to serve, you could have a lot of homework to do between now and January 25. That’s because the Media Bureau has announced that the window period for submitting “translator application selection” lists (“Selection Lists”) and related “Caps Showings” will run from January 10-25, 2013

So much for taking any time off during the Christmas/New Year’s/MLK extended holiday season.

The Bureau’s public notice is not unanticipated. As we noted just ten days ago, the Commission is highly motivated to wrap up the long-running face-off between FM translator applicants and would-be LPFM applicants. The culling of the herd of translator applications that have been sitting around for nearly ten years is an essential step in achieving that goal.

As those of you who have been following the LPFM/FM translator imbroglio through our blog already know, the Commission has devised a highly complex set of technical guidelines to govern which translator applications will be processed and which will be dismissed. The applicants themselves will have the first say, but their ability to pick and choose among their pending applications is subject to the Commission’s complex guidelines.

In announcing the deadline for submitting the Selection Lists, the Bureau has provided a useful summary of the technical factors that will come into play as applicants prepare their lists. We won’t try to summarize those factors here – the Bureau has already done an admirable job on that front, so we’ll simply provide another link to the Bureau’s public notice.

We will, however, note that the January 25, 2013 deadline appears to be absolute. In bold face text the Bureau warns that “Selection Lists and Caps Showings may not be submitted, amended, corrected or resubmitted for further consideration after the Caps Deadline.” So if you’re going to be among those filing lists and showings during the upcoming window, be sure to double- and triple-check your work before turning it in.

And just who will be having to submit Selection Lists and Cap Showings? According to the notice, “[n]o submission is required for this filing window by any Auction 83 [FM translator] applicant that has fewer than 51 pending Applications nationally and no more than one pending Application in any of the Appendix A Markets.” The term “Appendix A Markets” refers to a list of markets set out in Appendix A to the Commission’s Fourth Report and Order. (We described that Report and Order last April.) So you’re off the hook if you have no more than 50 pending translator applications and no more than one application in any Appendix A Market.

The rest of you should get busy.

You’re going to have to decide which applications you want to continue to prosecute and which you’re willing to toss. No applicant will be permitted to keep more than 70 applications on file, so some of you will have to do some whacking just to get in under that limit. 

And once you’ve made that cut, the fun will have just started. 

Applicants that plan to prosecute 51-70 applications nationally will have to demonstrate, with respect to any of its applications outside any Appendix A Market, compliance with a number of “national caps conditions”. That demonstration will include a “No Overlap Showing” and a showing that “at least one [LPFM] licensing opportunity will remain at the proposed site if the Application is granted.” In the “No Overlap Showing” the applicant will have to show that the proposed 60 dBu contour of the particular translator application won’t overlap with the equivalent contour of any other translator application or authorization held by the applicant as of December 4, 2012. (All contours will be determined by the standard prediction method.)

The Bureau’s notice also points out that the grant of any application with a transmitter site outside of an Appendix A Market will be subject to a condition that, for the first four years of operation, the translator’s 60 dBu contour must overlap the 60 dBu contour as originally granted. In other words, for the first four years a non-Appendix A Market translator won’t be able to be relocated so far away that its modified 60 dBu contour does not overlap the originally granted 60 dBu contour. (Again, all contours will be determined by the standard prediction method.)

For Appendix A Market applications, there may be even more to be done. Applicants wishing to prosecute more than one translator application in a given Appendix A Market will be subject to a number of restrictions. First, an applicant may prosecute no more than three applications in any Appendix A Market. For each such application, a “No Overlap Showing” will have to be submitted. And in addition, for each of those applications the applicant will have to demonstrate that certain LPFM licensing opportunities will not be precluded.

And all of this has to be wrapped up and delivered to the FCC by 7:00 p.m. (ET) on January 25, 2013. All showings will be submitted on paper – there will be no electronic filing.

As noted, once an applicant has filed its Selection List and accompanying Caps Showings, there’s no changing them at all. The Bureau will then sift through them and clear its files accordingly. If an applicant that should file a Selection List and Caps Showing fails to, or if it files a “deficient” showing, the Commission will follow a particular drill for deciding which applications will stay and which will go.

Finally, a note of caution to everybody who has a vintage 2003 translator application still pending. You all are still subject to the anti-collusion rules. That means that you cannot, at any point in the caps selection process, communicate with other applicants with respect to various application-related matters. (The particular areas to avoid are spelled out in Section 1.2105(c) of the rules.)

Effective Date of New LPFM Rules Set

Updated “water files” also released as FCC works to advance LPFM/FM translator plan

Having settled on a framework for clearing the FM translator logjam and getting the LPFM application process up and running (at least in theory), the Commission is losing no time in its efforts to implement that framework. The “Fifth Order on Reconsideration and Sixth Report and Order” in the ongoing LPFM/FM translator saga has now been published in the Federal Register. (We wrote about that order last week.) Barring a stay of the effectiveness of the order – and such a stay is unlikely in the extreme – the new rules will become effective on January 10, 2013. (That will also be the deadline for petitions for reconsideration, should anybody be inclined to seek reconsideration.  Parties interested in seeking judicial review will have until February 9 to get their petitions for review filed with an appropriate court.)

The Federal Register publication (and consequent effective date) probably won’t have any immediate impact on things, though. What will have an immediate impact will be the FCC’s public notice concerning the deadline by which applicants with more than the permitted number of translator applications must elect which of their applications they plan to dismiss. That public notice could show up any time now. Since (1) the Commission appears keen on getting the LPFM show on the road, and (2) the LPFM window process won’t be able to proceed until the translator backlog is cleared, and (3) the translator backlog won’t be cleared until dismissal elections have been made, and (4) dismissal elections won’t be made until the FCC sets a deadline for them, our guess is that that deadline is likely to be announced sooner rather than later. Check back here for updates.

And also on the LPFM front, the Commission has released some updated “water files” for certain markets. These files clarify or correct certain “minor discrepancies” with respect to the possible exclusion of grid points at locations over water or not within the United States. (For more on the significance of “grid points” and related matters, see our post from last April.) The communities affected by the updated water files: Chicago; Detroit; Los Angeles; and Jacksonville (the one in Florida). The code, updated water files and other relevant materials may be accessed in a zip file at http://www.fcc.gov/Bureaus/MB/Databases/source_code/lpfm/lpfm6.20121206.zip.

Translate This (Again)! Final Framework for LPFM/FM Translator Resolution Adopted

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

Clearing the translator backlog

First things first. Before the Commission can open an LPFM window, the remaining 6,000 or so translator applications filed back in 2003 have got to be cleared out. To hasten that, the FCC has revised the cap limits (i.e., the number of translator applications any single applicant can continue to prosecute) and settled on a process to deal with those applications that survive the cap-limit culling.

Application caps – Originally, the Commission had settled on a 50-application cap. But now that has been relaxed somewhat, in some limited circumstances. In the 6th R&O, the Commission has revised the cap upward to 70 applications nationally, with a limit of 50 in the largest U.S. markets. 

Additionally, translator applicants are now faced with a cap of three applications in the 156 largest markets – as opposed to the one-per-market cap announced last March. However, the relaxed per-market cap is subject to a number of considerations. For example, submarkets in the largest cities will be considered separate markets for purposes of applying the three-application local limit. No 60 dBu overlap will be permitted with another commonly-owned application. (And with respect to demonstrations of no-overlap, the Commission will not accept alternate contour prediction – e.g., Longley-Rice – showings.) Additionally, applicants will need to submit studies showing that their proposed translators will not preclude LPFMs in either the market “grid” or at the translator’s proposed site.

Thinning the herd – With those new caps (and related limitations) in place, here’s how the Commission plans to deal with the translator backlog.

The first step will be a public notice requiring compliance with the new national and local caps. As early as January 2013, applicants will be told to elect their top-70 (and top-50 in major markets) applications by a date certain. Applicants with more than three applications in the larger markets will be ordered to make similar elections. Thousands of FM translator applications should be eliminated from the database, thereby – the theory goes – making room for LPFM stations.

Next, or simultaneously, the FCC will begin processing “singleton” translator applications in non-“spectrum limited” markets (those where opportunities theoretically remain for new LPFM stations. Check out our post from last April for more details on “spectrum limited” markets.). Applicants in this category will be invited to file “long form” applications to supplement the abbreviated Forms 349 they filed in the 2003 translator window. 

At the same time, applicants in “spectrum limited” markets will be afforded an opportunity to file long-form applications which include, where possible, showings that the grant of their applications will not preclude opportunities for future LPFM stations. 

The FCC will then open a settlement window allowing technical settlements or limited buy-outs (for expenses only) among mutually-exclusive applicants for non-“spectrum limited” markets.

Singleton applicants in “spectrum limited” markets which can demonstrate no preclusion of LPFM opportunities will then be processed and granted. A settlement window will then be opened to allow the sorting out of non-preclusive applicants in “spectrum limited” markets.

Any remaining singletons will then be processed and granted. 

After these steps are completed, some groups of mutually-exclusive translator applications are still likely to remain. The FCC will conduct an auction among remaining applicants for commercial translator licenses; remaining non-commercial (NCE) translator applications will be chosen under the Commission’s noncommercial comparative points system. In hybrid groups of NCE and commercial MX applications, it’s likely the NCE applicants will be afforded an opportunity to amend to specify commercial operations, thereby avoiding dismissal.

Timing – As noted, we can expect to see, probably within a matter of weeks, the public notice requiring translator applicants to elect which of their applications they will continue to prosecute. Since all translator applicants have long been on notice that they would be having to make some such election (even if the precise application has been somewhat up in the air until now), don’t be surprised if the Commission provides only very limited time within which to make those elections.

But the follow-up processes of settlements, singleton processing, resolution of MX groups, etc. could take considerably longer. 

How long? According to the Commission, “to maximize LPFM filing opportunities it is critical for the Media Bureau to complete substantially all of its processing of the pending FM translator applications prior to the opening of the LPFM window.” So you might figure that no LPFM window will be opened until the translator backlog has been cleared. Perhaps, but as noted above, the Commission has tentatively set October 15, 2013 as the target date for the next LPFM window. That suggests that the Commission thinks it can wrap up the translator backlog in the next nine months. We wish them luck with that. (Perhaps recognizing the potential for delay along the way, in the 6th R&O the Commission authorizes the Media Bureau to “adjust” the October, 2013 date “in the event that future developments affect window timing”.)

The next LPFM window

When the LPFM window does open, LPFM applicants will be subject to a number of new rules and policies. They include:

  • New second-adjacent channel short-spacing waiver criteria for LPFM applicants vis-à-vis FM, FM translator and LPFM stations. The new criteria will permit use of the undesired/desired signal strength ratio methodology to evaluate potential interference. (Up to now, such methodology has been available only to translator applicants.). The criteria will also permit the use of directional antennas, alternate antenna polarization and lower ERP in waiver requests.
  • Interference complaint procedures for third-adjacent channel LPFMs vis-à-vis FM, FM translator, or FM booster stations. (Third-adjacent channel spacing requirements for LPFM applications were repealed by Congress in 2010, but actual interference is still a cognizable issue under the rules.)
  • Modified selection criteria for mutually-exclusive LPFM applicants. The new criteria will make available additional comparative “points” to those proposing to establish local studios and for applications by Native Americans to serve their tribal lands.
  • Expanded ownership limits which will permit, subject to certain restrictions, ownership of up to two FM translators by an LPFM station.
  • Elimination of the plan adopted in 2000 to license LP10 (10 Watt) LPFM stations.
  • Elimination of IF protection requirements applicable to LPFM.

What you see is what you get. 

So the FCC has finally resolved a proceeding that had its origins in the 2003 FM translator window. As to LPFM/full-power interference issues and the imposition of FM translator application caps, the FCC (with significant input from Congress) has spoken. Some mass filers will lose the bulk of their remaining translator applications, as will applicants who concentrated in just a few markets, but the adjustments to the caps may help some. LPFMs will have new spectrum rights vis-à-vis full-power FM and other FM services, new opportunities to own translators, and new limitations on the facilities they can hold. It’s safe to say that nobody is likely to be 100% happy with 100% of the Commission’s resolution of the LPFM/FM translator conundrum. But a decade of uncertainty is over, unless either the FCC re-thinks things or a court of appeals (at the request of one or another disgruntled party) finds some flaw in the Commission’s actions – neither of which possibilities is likely, in this writer’s view. If all goes as planned, the FCC’s new rules will become effective 30 days after their publication in the Federal Register (except for some aspects that will require prior OMB approval). Check back with us for updates on that situation.

OMB OK on FM Translator Application Culling

Meanwhile, back at the FM translator application backlog . . .

In March, the Commission announced the process by which the pile of several thousand FM translator applications, still pending since the infamous 2003 filing window, would be trimmed down. (You can read the Commission’s full 35-page – not including appendices – decision here, or our punchy, far more abbreviated recap of it here.) As we reported in May, the process by which the Commission intends to thin the herd involves “information collections” (as they are known in Paperwork Reduction Act parlance). Such collections must be approved by the Office of Management and Budget (OMB) before they can be implemented.

According to a notice published in the Federal Register, OMB has given its thumbs up to the Commission’s process.  (The imprimatur was technically handed down on July 24.) This clears the way for the FCC to get the culling started. Look for a public notice in the near future setting deadlines and the like. The Commission has been under considerable pressure to move things along on the LPFM front, and clearing the FM translator backlog is an essential first step. Because of that, we won’t be surprised if things start to happen pretty fast at this point. Folks with FM translator applications pending from the 2003 window should familiarize themselves with the FCC’s process as outlined back in March (if they haven’t done so already), determine how that process affects their applications, and be prepared to act in short order. Check back here for updates.

Update: FCC Invites PRA Comments on FM Translator Dismissal/Amendment Process

The Great FM Translator Application Purge has moved one step closer: the FCC has formally initiated the Paperwork Reduction Act (PRA) process which must be completed before the “information collection” aspects of the herd thinning measures can be implemented. With respect to the several thousand new FM translator applications still pending since 2003, the new rules adopted last March in the Fourth Report and Order (4th R&O) impose application caps of (a) 50 nationwide and (b) one in each of the 156 markets identified in Appendix A of the 4th R&O. Any applicant with more than 50 apps nationwide and/or more than one app in any of the listed markets must dismiss enough applications to bring themselves under the limits. The letters necessary to seek those dismissals constitute “information collections” subject to the PRA.

Additionally, the 4th R&O affords pending FM translator applicants some limited opportunities to amend their applications. Those amendments, too, are “information collections”.

With its notice in the Federal Register, the Commission has invited the usual PRA comments on both aspects.  We'd like to be able to tell you exactly what the "information collections" actually look like, but the notice doesn't contain any examples.  Instead, it provides instructions for how to find copies on the OMB website -- but when we tried to follow those instructions, we came up empty.  Ideally this problem will be corrected before comments are due.

And speaking of the due date, anyone so inclined has until June 29, 2011 to submit comments to the Commission. After that, the Commission will bundle up all comments received and ship them over to the Office of Management and Budget, which will open its own 30-day comment period. After that, look for a notice that OMB has approved the process, which will clear the way for the Commission to open its doors for dismissals/amendments. If things move smoothly, it looks like those doors might swing open toward the end of the summer. (Check back here for updates.)

While we would like to say that the PRA process gives everyone a meaningful opportunity to affect the course of FCC regulations, recent experience suggests that that might not be entirely accurate. Still, the invitation for comments has been issued, and we’d be remiss if we didn’t pass the word along.

Update: LPFM/FM Translator R&O Published in Federal Register . . .

. . . but with one exception, the new rules still aren’t effective

The FCC’s Fourth Report and Order and Third Order on Reconsideration (4th R&O) designed to break the longstanding logjam involving the LPFM and FM translator services has been published in the Federal Register.  (You can read more about the 4th R&O here.) While such publication would often mark the end of the rulemaking process by establishing the effective date of the newly-adopted rules, not so here. Since most of the new rules and policies adopted in the 4th R&O involve “information collections”, they all must first be run through the Office of Management and Budget’s Paperwork Reduction Act drill before the FCC can implement them. The Commission has not yet gotten that particular ball rolling, but we expect it to happen shortly, as the Commission seems highly motivated to wrap up the LPFM/FM translator imbroglio sooner rather than later. Check back here for updates.

The Federal Register publication does establish May 9, 2012 as the effective date of the amended Section 74.1232(d). That’s the rule that allows AM stations to rebroadcast their signals on FM translators. As we reported earlier, the 4th R&O expanded the universe of translators eligible for such cross-service operation. Despite the effective date, though, the rule revision is not likely to have much immediate effect. 

That’s because the rule as revised in the 4th R&O provides that AM signals can be broadcast not only on translators that were authorized as of May 1, 2009, but also on translators that had been applied for as of May 1, 2009. That tweak means that, once granted, any of the 6,500 or so translator applications still pending from the infamous 2003 window could be used for AM translation. However, since none of those applications will be granted until the rest of the 4th R&O takes effect, the May 9, 2012 effective date of the revised Section 74.1232(d) is largely symbolic for the time being.

LPFM - The Next Generation: FCC Invites Comment on Post-LCRA Regulation of LoPos

The Commission struggles to play the hand that Congress dealt it in the Local Community Radio Act

In this our third post in the last week on the subject of recent developments in the regulation of the low power FM (LPFM) service, we look at a number of rule changes proposed by the Commission in connection with its effort to clean up various aspects of that service. That effort, of course, was inspired (and in some respects mandated) by the Local Community Radio Act (LCRA). The proposals in question are contained in the “further notice of proposed rulemaking”  (NPRM) portion of the Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration (5th R&O). They encompass a wide range of LPFM-related topics, many involving considerable complexity. 

We’ll try to hit the high points and make as much sense out of it all as possible, but anyone with a serious interest in the FCC’s LPFM proposals – or in LPFM generally – should be sure to read the full NPRM. Be forewarned, though: the NPRM is not light reading. Keep your NoDoz® handy.

The proposals entail two broad categories of regulations: first, issues arising from the interrelationships between LPFM stations and other stations operating in the FM band; second, issues relating to the process of initially licensing LPFM stations.

LPFMs vs. Other FM Band Users

Second-Adjacent Channel Separation Waivers

First out of the box is a proposed approach to requests by LPFM stations for waiver of otherwise applicable minimum second-adjacent channel separations. In the LCRA Congress expressly authorized the FCC to waive those spacing requirements in some circumstances. What circumstances? Congress thought second-adjacent waivers should be permitted as long as the LPFM applicant establishes that its proposal “will not result in interference to any authorized radio service”. That showing can be made “using methods of predicting interference taking into account all relevant factors, including terrain-sensitive propagation models”.

Of course, the Commission has had its own second adjacent waiver policy in place since 2007. But that policy (which involves a “balanc[ing]” of various interests) is a bit more loosey-goosey than what Congress seems to have had in mind. Congress’s approach requires first and foremost that the LPFM “will not result” in interference, regardless of whether the extent of possible interference might be said to be offset by any possible gains in service. So the Commission tentatively figures that its 2007 approach is history (although it still invites comments on that tentative conclusion).

How would an LPFM applicant demonstrate that its proposal would not “result in interference”? The Commission suggests that the undesired/desired signal strength ratio approach (used, for example, in assessing some translator applications) might be the way to go. It also suggests that LPFMs might be permitted to use directional antennas to protect second-adjacent stations.

The Commission also offers some other factors it might be inclined to consider in connection with second-adjacent waiver requests. For example, should LPFM applicants be required to show that no fully-spaced channels are available? Is it relevant that the LPFM proposal would eliminate or reduce interference received by the LPFM? How about looking at whether the proposal would result in “superior spacing” to other FM operations (full-service, translator, booster) on co-channel and first-adjacent channels? The FCC appears to be wide-open for further suggestions here.

With respect to handling complaints about interference caused by an LPFM station with a second-adjacent spacing waiver, the LCRA lays out a clear process to be followed. In the NPRM the FCC acknowledges that Congressionally-mandated process and proposes to incorporate it into the rules. But in doing so, the Commission solicits comments on some practical questions the LCRA doesn’t address – like how to define a “bona fide complaint”, and how the LPFM station accused of interference might demonstrate that it’s not the source of the complained-of interference.

Third-Adjacent Channel Interference

As previously reported, the Commission has – at Congress’s behest – deleted most (but not all) of the minimum separation requirements for third-adjacent channel LPFM operations. But that doesn’t mean that LPFM interference to third-adjacent stations is a thing of the past. To the contrary, it merely means that a threshold protective measure designed to prevent such interference has been removed. In ordering the deletion of the separations, Congress provided that LPFM stations would still be subject to interference limits. But in so doing, Congress managed to introduce an astonishing level of complexity which the Commission is now attempting to sort out.

Because of the language of the LCRA, the Commission finds itself required to establish two separate and distinct “LPFM interference protection and remediation regimes”. The first applies to LPFM stations that would have been short-spaced if the Commission had retained the minimum separation limits for third-adjacent operations; the second applies to LPFM stations that would not have been so short-spaced.

(Irony alert: Yes, it turns out that, even though the third-adjacent separation limits have been technically deleted from the rules, they will still be retained in the rules – but “solely for purposes of reference” to permit the Commission to determine which protection/remediation “regime” is to be implemented when third-adjacent interference rears its ugly head.)

Remediation Process for Section 7(1) Stations -For LPFM stations that would be short-spaced to third adjacent operations under the old spacings – what the Commission refers to as “Section 7(1) Stations” – the drill would track the process used for translators. Any actual interference from a Section 7(1) Station to the “direct reception by the public of the off-the-air signals of any authorized broadcast station” would be prohibited, regardless of where or when the interference occurs.  If such interference were to crop up, it would have to be eliminated or the LPFM would have to cease operation.

While the translator rules don’t say so in so many words, in order to warrant the Commission’s attention an interference complaint must be “bona fide”. In the FCC’s view, that means that the complainant must be “disinterested”, i.e., not having any “legal stake” in the matter.

Since the LCRA specifically instructs the Commission to use the translator interference remediation process (currently codified in Section 74.1203), it’s doubtful that the FCC has much room to change that process at all relative to LPFMs. Still, the Commission asks whether any changes might be possible and, if so, what they might be.

Remediation Process for non-Section 7(1) Stations – All LPFM stations that don’t qualify as “Section 7(1) Stations” would be treated as “Section 7(3) Stations”, which would enjoy a considerably more lenient process for dealing with interference. Where Section 7(1) Stations would have to either eliminate interference or turn themselves off regardless of where that interference might occur, Section 7(3) Stations would merely have to “address interference complaints within the protected contour” of the interfered-with third-adjacent station. (The LCRA also calls for the FCC to “encourage” Section 7(3) Stations to “address” any other complaints regardless of the locus of the interference.)

Of course, the statutory term “address” is not particularly specific. While it seems clear that “addressing interference complaints” does not require “eliminating” interference, “addressing” has still got to involve some action on the part of the LPFM station. But what exactly must an LPFM station do to “address” an interference complaint? The Commission’s not sure, so it has invited comment on that fundamental question, as well as other more practical issues (e.g., should complaints have to be filed with the Audio Division; should the complainant be required to provide contact information).

The LCRA does specify that newly-constructed Section 7(3) Stations must be required to broadcast, periodically during the first year following construction, announcements alerting listeners to the potential for interference. The announcements must instruct listeners to contact the LPFM station to report interference. (According to the LCRA, the LPFM station must in turn notify the FCC and any affected stations about any complaints within 48 hours of the time they roll in.)   The Commission is dutifully proposing to follow through with that, but it has a number of questions about the details – should the text of the announcements be specified by the Commission, when and how often should they be aired, etc. Oh, and the Commission is also thinking that it might impose the announcement requirement on newly-built Section 7(1) Stations, even though the LCRA does not expressly authorize such a requirement.

Translator Input Complaint Procedure

The LCRA requires the Commission to modify its rules to “address the potential for predicted interference to FM translator input signals on third-adjacent channels”. This is a significant change, since the Commission’s current policy is to require remediation of actual interference. That is, under the FCC's existing policy, questions of third-adjacent interference from an LPFM station to a translator’s input signal would be dealt with only if such interference actually arises; no consideration to the potential for such problems is given at the initial licensing stage.

Obviously, Congress’s approach – requiring the FCC to “address the potential” for such interference – means a change in the FCC’s SOP on this front. Rather than wait for an already authorized station to cause interference, the Commission will have to consider the possibility of interference before authorizing construction in the first place.

Accordingly, the Commission is proposing that any application for a new or modified LPFM station will be barred from using a transmitter site within a “potential interference area” of any FM translator station that receives the off-air signal of a third-adjacent channel FM station. Applications proposing such a site would be dismissed.

The term “potential interference area” would, for purposes of this policy, be defined as

any area within 2 km of the translator site or any area within 10 km of the translator site within the azimuths from -30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator.

Applications specifying transmitter sites within “potential interference areas” could still be filed, as long as they include an exhibit demonstrating that no interference to off-air reception will be caused.  Applicants could make that demonstration by showing that the ratio of the proposed LPFM signal to the FM signal would be below 34 dB at all locations. Alternately, they could use an equation set out in Section 2.7 of “Experimental Measurements of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume One—Final Report (May 2003)”, which is a go-to resource when it comes to the technical aspects of LPFM.

I.F. Separation Requirements

The Commission is proposing to remove the requirement that LPFM stations operating with less than 100 watts protect full-service station on their intermediate (I.F.) frequencies. This change would bring LPFM into regulatory parity with FM translator stations and Class D FM stations, which are already exempt from I.F. when operating with less the 100 watts ERP.

LPFM Licensing Processes

Anyone who may be thinking about filing an application in the next LPFM window should pay particular attention Paragraphs 47-66 of the 5th R&O. There the Commission proposes a considerable number of changes to the some important aspects of the application and selection process. The proposals include:

Elimination of the LP10 class of service (i.e., LPFM stations with maximum power of 10 watts ERP at 30 meters HAAT), but creation of a new higher power class to operate with up to 250 watts ERP at 30 meters HAAT in certain smaller communities, rural areas, or “non-core” locations (i.e., outside population centers) in larger markets;

Clarifying that American Indian Tribes and Alaskan Native Villages (Native Nations) are both (a) eligible to apply for LPFM stations and (b) entitled to a point in the point system selection process. The NPRM also seeks comment on whether Native Nations should be permitted to exemptions from the multiple ownership and cross-ownership rules so that they might in some circumstances own more than one LPFM station and full-service stations at the same time;

Permitting cross-ownership of LPFM stations and one or more FM translator stations;

Jiggering with the process for selecting from among mutually exclusive applicants in various ways designed to further emphasize and enhance the “local” nature of LPFM licensees and the service they’re likely to provide;

Alternative ways of dealing with tie-breaker and time-share situations.

Again, the 5th R&O is dense with material and should be studied carefully by anyone concerned about LPFM service – or about FM service generally. That includes any potential applicant for an LPFM station as well as any existing full-service licensee who might suffer interference from new or modified LPFM operations nearby. While the Commission obviously has a lot of ideas of its own here, the agency appears to be wide-open to any alternative suggestions that interested parties might want to lob in. 

The LCRA clearly establishes that LPFM as a service enjoys substantial Congressional support – which means that it will have to be reckoned with. The 5th R&O’s NPRM reflects an important opportunity to define how the LPFM service is to be integrated into the panoply of other FM services going forward. For that reason it warrants the serious attention of anyone using, or thinking of using, the FM band.

The NPRM of the 5th R&O has been separately published in the Federal Register which, as we all know by now, sets the deadlines for comments and reply comments. If you want to file comments on any of the FCC’s proposals, you have until May 7, 2012. Reply comments are due by May 21. Since the proposals include some “information collection” requirements, you can also tell the FCC what you think about those, thanks to the Paperwork Reduction Act – comments in that vein are due by June 5.

Third-Adjacent LPFM Spacings Eliminated (Almost)

Most, but not all, third-adjacent separation requirements for LPFM stations set to go away as of June 4, 2012.

For those of you keeping score, the third-adjacent channel separation requirements for low power FM (LPFM) stations are about to be history – like they were back in 2000, before they were reinstated in 2001, at Congress’s express direction. But last year Congress had second thoughts, and so it’s “see ya” once again to the third-adjacent protections . . . except that some will still be with us.

As previously reported, the Commission has recently devised a complex Rubik’s Cube approach to sorting out the longstanding stalemate between FM translator applicants and the LPFM Insurgency (since LPFM is by definition a not-for-profit undertaking, it’s hard to call it an “industry”). But that was only part of the FCC’s recent LPFM-related work. In a separate decision – formally titled (deep breath first) the “Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration” (5th R&O) – the Commission has complied with Congress’s “unambiguous” direction and has tossed the on-again-off-again third-adjacent channel separation requirements applicable to LPFM stations.

The resulting rule changes, set out in the “Report and Order” portion of the 5th R&O, have now been published in the Federal Register. That sets the effective date for those changes. Mark your calendars: the changes are scheduled to take effect on June 4, 2012. (The “Further Notice of Proposed Rulemaking” portion of the 5th R&O contains a welter of proposed rule changes. Those have not yet been published in the Federal Register. We’ll address them in a separate post.)

The changes that have just been adopted are relatively narrow. 

In the Local Community Radio Act of 2010 (LCRA), Congress told the Commission to get rid of the third-adjacent minimum spacing requirements between LPFM stations and other FM band occupants (i.e., full-service FM, FM translators and FM boosters). How hard can that be? Just hit the Delete button every time “third adjacent” shows up in the LPFM rules, right?

Not so fast.

While Congress “unambiguously” wanted the Commission to deep-six third-adjacent protections, Congress also wanted to protect radio reading services (RRS) that operate on subcarrier channels which are particularly susceptible to (wait for it) third adjacent interference. So if you eliminate all third-adjacent separation requirements, which Congress wants, you threaten RRS operations, which Congress doesn’t want. Oops.

No worries. As it turns out, the Commission’s rules already included extra protections for stations carrying RRS on their subcarriers. Those rules, initially adopted back when the FCC first abandoned third-adjacent protection requirements for LPFMs in 2000, had become “redundant” when the requirements were reinstated the next year (at Congress’s insistence). Despite their redundancy, the Commission never got around to deleting the RRS protection rules. Good thing, since they will come in handy now that Congress has ordered those protection un-reinstated. As a result, Sections 73.807(a)(2) and (b)(2) of the LPFM rules will continue to contain some third-adjacent limitations on LPFM stations.

Oh, one more thing. Third-adjacent channel protection requirements applicable to LPFM stations in border areas will also remain in place. Treaties with Canada and Mexico impose such requirements, and nothing in the LCRA suggests that Congress intended to unilaterally revise those treaties.

While prospective LPFM applicants can presumably figure out fairly easily whether they’re close enough to the border to have to worry about the residual third-adjacent limits, the RRS question is another problem entirely. The FCC generally doesn’t regulate, much less keep track of, subcarrier use. As a result, figuring out what stations are actually carrying RRS on their SCAs may be a tad problematic.

Bottom line: Consistent with the will of Congress, third-adjacent minimum distance separation requirements for LPFM stations have been tossed . . . except (a) in border areas or (b) when the third-adjacent full service station happens to be providing RRS. The elimination (or, more accurately, semi-elimination) of these requirements is set to take effect on June 4, 2012.

Translate This! FCC Breaks LPFM/FM Translator Logjam

Complex process aims to preserve LPFM opportunities while allowing grants of some long-pending translator apps

In 2003 the Commission opened its doors to new FM translator applicants – and more than 13,000 applications walked in. Now, nearly a decade later, some 6,500 of those applications are still pending. But never fear. With some Congressional prodding (in the Local Community Radio Act (LCRA)), the FCC has knuckled down and devised a complex system for processing the remaining translator applications while assuring that translators will not gobble up all the available spectrum to the exclusion of new low power FM (LPFM) applicants. That system, first proposed last summer, has now been officially adopted in a Fourth Report and Order and Third Order on Reconsideration (4th R&O).

Congress insisted in the LCRA that the LPFM service be treated as “equal in status” to FM translators and boosters. Congress was less clear as to what, precisely, it meant by the phrase “equal in status”. Sorting that out was left to the Commission. The first 14 or so pages of the 4th R&O are devoted to identifying the “broad interpretive principles” underlying the LCRA. Feel free to read through them if you’re interested. For our money, your time would be better spent on pages14-25, particularly starting on page 19. That’s where the Commission explains its “revised translator application processing and dismissal policies” – i.e., how it’s going to cull grantable translator applications without shutting out LPFM wannabes.

It’s not necessarily pretty, and it certainly isn’t easy, but the Commission’s system seems to do the trick, preserving theoretical opportunities for future LPFMs while still allowing relatively prompt grant of more than 1,000 (by the Commission’s estimate) new translators from the applications filed in 2003.

If you’ve got one or more translator applications pending from 2003, pay attention. You’ll be having to do some homework, probably in the not too distant future. (The effective date of the new processes won’t be set until the 4th R&O makes it into the Federal Register. Check back here for updates on that – and know that the Commission is planning to move forward quickly with its efforts to clear the translator backlog while opening a filing window for LPFMs.)

Processing Pending Translator Applications

Here’s how the newly-adopted process is going to work.

Market Definition – “Spectrum Limited” vs. “Spectrum Available”

As previewed in last summer’s Notice of Proposed Rulemaking, the Commission has studied the availability of LPFM opportunities in the top 150 Arbitron markets (and six additional markets where more than four translator applications are pending). It did this by examining, for each of those markets, a thirty-minute latitude by thirty-minute longitude grid laid out over the center-city coordinates. The grid consists of 961 points (i.e., 31x31), and for each point the Commission analyzed the availability of all 100 FM channels for LPFM use. 

To be deemed available for such use, a channel at any particular point in the grid had to fully satisfy co-channel, first- and second-adjacent channel LPFM spacing requirements with respect to all outstanding authorizations and pending applications (including pending translator apps).

From the grid analysis the Commission determined how many LPFM availabilities exist in each of the studied markets. (“Availabilities” in this sense include both vacant channels and channels currently used by LPFM stations.) Armed with those determinations, the Commission then made an initial rough cut, dividing the studied markets into two groups: the “spectrum limited” markets (initially referred to as “dismiss all” markets) and the “spectrum available” markets (initially known as “process all” markets). The former consisted of markets where the number of LPFM availabilities fell below a certain “floor”. For Markets 1-20, the floor is eight channels; for Markets 21-50, it’s seven; for Markets 51-100, it’s six; and for the rest of the studied markets, it’s five. (FYI – The floor numbers were based on a “rough approximation of the number of noncommercial educational stations in the top 150 markets”, according to the Commission.)

The rough cut was then further refined. All markets initially designated as “spectrum available” were analyzed to identify markets in which the population is centrally concentrated. This was done by laying a 21x21 grid (rather than the original 31x31) over the market and checking the population within that 21x21 grid. If the 21x21 grid population amounted to 75% or more of the population in the 31x31grid, then the relevant “floor” for that market was determined by reference to availabilities only within the 21x21 grid, rather than the 31x31 grid. That exercise moved some of the markets from the original “spectrum available” column over to the “spectrum limited” side of the ledger. (The rationale for this additional step is that LPFMs may be best suited for urban communities, and use of the wider 31x31 grid might not provide an accurate assessment of spectrum availability in the actual population center.)

Using the results of that further analysis – along with up-to-date BIA information – the Commission devised its final lists of “spectrum available” and “spectrum limited” markets.

The Culling Process

Now let’s look at the pending translator applications. 

As a threshold matter, the Commission has adopted in the 4th R&O two separate caps on pending translator applicants. First, there’s a nationwide limit of 50 applications (from the 2003 filing window) per applicant. Second, each applicant may prosecute only one application in each of the 156 markets analyzed by the Commission. So if you’re among the pending applicants and you have more than 50 applications and/or more than one application per market, you will need to decide which of your horses you want to keep riding. The Commission will issue a public notice alerting applicants when and how applicants in that situation will have to advise the FCC which applications they plan to stick with – but be alert: much of the procedural spade work on this has been started already (including the Paperwork Reduction Act process), so things could happen quickly. While some analytical tools have already been made available to help run preclusion studies, word is that more such tools will be released soon. (Anyone who has to worry about tossing applications overboard should be careful NOT to consult with other applicants in making the decision about which apps to toss: as indicated below, the anti-collusion rules are still in effect.)

Once that winnowing process has been completed, all remaining applications in “spectrum available” markets will be processed, starting with any singletons and moving through the remainder of the mutually exclusive (MX) groups. MX applicants will be given an opportunity (probably no more than 90 days) to work out their mutual exclusivity by amendment or settlement – after which, it’s on to the auctions. Of course, amendments cannot preclude any LPFM availability identified in the grid studies. Amendments will be processed first-come/first-served, but unamended applications will enjoy cut-off protection against amendments filed during the settlement window.

As far as applications in “spectrum limited” markets go, there’s good news and bad news. The good news is that, contrary to the FCC’s original proposal last summer, all translator applications in “spectrum limited” markets will not be automatically dismissed. 

The bad news is that, to avoid dismissal, such applicants will have to demonstrate that they don’t cause any “preclusive impact” on protected LPFM channel/point combinations. There’ll be one opportunity to amend pending proposals to avoid such “preclusive impact”. It’s theoretically possible that some translator applications in some “spectrum limited” markets could squeeze themselves through the LPFM screen the Commission has established. For that reason, the elimination of the initially-proposed automatic universal dismissal is good, especially for proposals outside any market grid. (In-grid proposals, however, are less likely to make the cut.)

And there’s more bad news for any translator applicant proposing facilities outside the 31x31 grid in one of the Top 50 “spectrum limited” markets. If that’s you, you will also have to make a “Top 50 Market Preclusion Showing”, i.e., a demonstration that either:

(a) no LPFM station could be licensed at the translator’s proposed transmitter site or,

(b) if an LPFM station could be licensed at the site, an additional channel remains available for a future LPFM station at the same site.

Good luck with that.

A couple more tips on dealing with markets and grids.

First, deciding what’s a “protected LPFM channel/point combination” will vary, depending on whether you’re in a “spectrum limited” or “spectrum available” market. 

For “spectrum available” markets, an LPFM channel/point combination is entitled to protection only if an LPFM station at that site would meet all spacing requirements, including full spacing to all pending translator applications on co-channel, first- and second-adjacent channels. A pending translator application automatically meets that standard since, by definition, the hypothetical LPFM would have to be fully spaced to the pending application already. But note that, if the translator application is amended, all bets are off as far as the amendment goes: the amendment would have to demonstrate adequate spacing to all LPFM channel/point combinations.

For “spectrum limited” markets, on the other hand, the calculation (for both channel/point and Top 50 Market Preclusion studies) will “assume the dismissal of all translator applications in the market”. Also, neither of those calculations will take into account either (a) second-adjacent spacings to authorized stations or pending applications or (b) I.F. spacing requirements. In other words, the Commission is assuming that all LPFM applicants would be able to qualify for waiver of the second-adjacent spacing requirement, and it apparently doesn’t care about potential I.F. short-spacing.

Second, bear in mind that the grid for any particular market may be smaller than the market itself. LPFM opportunities that might exist outside the grid are not entitled to protection in either “spectrum limited” or “spectrum available” markets. So a translator application in any “spectrum available” market or any “spectrum limited” market below the Top 50 will be grantable if it specifies a site which meets the minimum LPFM-translator spacings. (And don’t forget that translator applicants in the Top 50 “spectrum limited” markets must also make that pesky preclusion showing.)

Other Matters

AM on FM Translators – The 4th R&O strikes a blow for the AM industry by expanding the universe of FM translators eligible to rebroadcast AM signals. In 2009, when such cross-service rebroadcasting was first permitted, the Commission limited eligibility for AM rebroadcasts to FM translators already authorized as of May 1, 2009. That meant that the 1,000 or so new translators which the Commission expects to grant out of the still-pending vintage 2003 applications would not have been available for AMers. The 4th R&O, recognizing that the cross-service option has been a “very successful deregulatory policy”, takes care of the problem by specifying that rebroadcast of AM stations will be permitted on any translator the initial application for which was pending as of May 1, 2009.

Since there haven’t been any new FM translator windows since May, 2009, that revised date limitation encompasses all currently existing and applied-for translators. As a practical matter, that may be all the translators there are likely to be. The Commission has committed to opening a new LPFM window before any further translator filing opportunities arise. The effect that that LPFM window will have on possible future translator opportunities isn’t clear. While a tsunami of LoPo applications could clog things up a lot, the flexibility of the translator rules may still afford plenty of opportunities down the line. We’ll just have to wait and see.

Freezes on New and Mod Translator Grants – Since 2005 there has been a freeze on grants of any of the 2003 translator applications, and since last year there has been a freeze on the filing of any translator “move-in” applications (other than relocations within the same “Spectrum Limited” market). Those freezes appear now to have been lifted. The 4th R&O expressly lifts the freeze on acting on any of the 2003 applications. It seems also to indicate that the move-in freeze is similarly lifted, although the 4th R&O is not as clear and unequivocal on that point as one might like. (Look for a clarifying notice on this, and possibly other aspects of the 4th R&O, at some point down the line.) 

Heads up, though. New move-in and mod applications that would bring a translator into a “spectrum limited” market will have to demonstrate that they will have no “preclusive impact” on protected LPFM channel/point combinations.

Anti-collusion Prohibitions Still In Effect – Translator applicants from the Class of 2003 should be aware that they are still subject to the anti-collusion rules, and will remain so at least through the process of identifying which applications they will continue to prosecute notwithstanding the application caps described above. As we have frequently cautioned prospective auction participants, those anti-collusion rules are strict, not necessarily intuitively obvious, and often unforgiving. Before discussing your plans and strategies with any third parties, you would be well advised to check those rules over to be sure that you’re not digging yourself into an unfortunate hole.

The Commission (and, in particular, the folks in the Audio Division) have completed a truly herculean task here. Sorting out the conflicting interests of translator and LPFM proponents was difficult enough, but doing so against the backdrop of 6,500 or so long-pending translator applications screaming for attention and Congressional direction that provided little useful, er, direction makes the accomplishment even more impressive. The way is now clear for the processing of a significant number of those translator applications. While it seems fairly obvious that few new translators will be authorized in the middle of major markets, that shouldn’t surprise anybody: the translator service was, after all, not designed for major markets.

Again, if you have one or more translator applications pending, you should be sure to get with your consulting engineer and start looking closely at the information from the FCC’s grids. It’s likely that you’ll be needing to make some decisions in the not-too-distant future, and the more time you give yourself to figure out your best move(s), the better off you’ll be when the time comes to make those moves.

Update: Deadlines Set for Comments on Proposed HD Radio Tweak

Now’s the time to toss in your two cents’ worth on possible asymmetric sideband operation

Earlier this month we reported on the Media Bureau’s invitation for comments on a proposal (advanced by the proponents of HD Radio) to allow “asymmetric sideband” operation for digital radio operators. That would mean that an FM station providing digital signals on its sidebands would be permitted to use different power levels on each of its digital channels. The Bureau’s invitation has now been published in the Federal Register, which triggers the 21-day comment period. The deadline for comments is December 19, 2011; reply comments are due by January 3, 2012. Historically, the Bureau has shown a decided proclivity to embrace modifications to the HD Radio system proposed by that system’s proponents and cheerleaders, so don’t be surprised if the newly-proposed tweaks get adopted promptly. (Another tip-off: the fact that the Bureau is affording only a relatively abbreviated 21-day comment period occurring immediately before Christmas, and an equally abbreviated reply comment period spanning Christmas and New Year’s Day.)  Check back here for updates.

HD Radio: Yet Another Tweak Proposed

Media Bureau seeks comment on asymmetric sideband operation that would permit HD operation with different powers on different carriers

As the HD Radio slogan says (see illustration to the left), it's time to upgrade . . . again.  In the latest effort to get HD radio’s actual performance to come close to its original promise, some of the system’s cheerleaders have advanced a new approach: asymmetric sideband operation for FM stations. And less than a month after the idea was pitched to the Media Bureau in an ex parte meeting, the Bureau has invited comments on a couple of reports that were left behind after the meeting. While it’s still a bit early to say, there’s reason to believe that this could be a happening thing before too long.

First, some technical background on HD radio. FM radio stations that transmit hybrid analog and digital signals do so by placing digital carriers on the first-adjacent frequency on each side of their licensed analog channel.  For example, a station whose analog signal is on 97.1 MHz and places digital carriers on 96.9 and 97.3 MHz.  The existing rules require both digital carriers to be at the same power level (-14 dB with respect to the analog carrier). 

The twist in the asymmetric sideband proposal: a different power level would be permitted on each digital channel.

Digital signal levels are far below analog levels. That’s partly because digital signals need less power generally. But more importantly, it’s because the digital carrier signals on the transmitting station’s adjacent channels pose an interference threat to other stations.  Stations operating under the FCC’s original digital rules (with power levels limited to -20 dBc) found their coverage to be inadequate.  The FCC responded by allowing increased digital power to – 14 dBc for most stations and – 10 dBc for stations that can show no interference.  But some stations with “super-powered” status or that are short-spaced to adjacent-channel stations have not been able to take advantage of maximum digital power levels.

Recent experimentation conducted on a few FM stations under special temporary authority indicates that digital reception improves with a power increase even if the increase is on only one of the two digital frequencies.  Thus, in our 97.1 MHz example, it might be OK to increase digital power on 96.9 MHz, even though an increase on 97.3 MHz would unduly interfere with another station. Of course, the results may not be optimal. As one of the reports concluded, “broadcasters are best off maintaining symmetrical sideband levels” – but “coverage improvements are possible with an increase of only one sideband.” 

After chatting with iBiquity reps and some of their supporters and looking at test results, the FCC has decided to invite comments on regularly licensing asymmetrical digital operation for those who want it.  Comments will be due 21 days after the Public Notice is published in the Federal Register; reply comments will be due 14 days later. (Check back here for updates on those deadlines.) Historically, the Commission has tended to be very accommodating when it comes to HD radio, so anyone interested in HD radio – whether as proponents or nay-sayers – should pay attention here, as this looks like it may move quickly.

Update: Reply Comment Deadline Extended (Again) in LPFM/FM Translator Rulemaking

If you’ve been burning the midnight oil working on reply comments in the LPFM/FM translator proceeding on the assumption that those reply comments are due on September 20, you can relax. The Media Bureau has extended the reply comment deadline by a week, to September 27, 2011. This comes at the joint request of the NAB and Educational Media Foundation, who observed that there are a boatload (that would be 47 in all) of comments to which to respond, several of which include extensive technical exhibits. Also, NAB/EMF pointed out that their counsel, and counsel for other interested parties, have been in Chicago at the NAB Radio Show this week.

NAB/EMF advised the Commission that several other parties – including Prometheus Radio Project – did not object to the requested extension. But hold on there, Sparky – it turns out that at least one party did object. That would be the Amherst Alliance, which lobbed in an opposition to the NAB/EMF request the same day that that request was filed. The Alliance (which describes itself as one of several “major LPFM advocacy groups”) took serious exception to any extension. Its concern is that deadline extensions will reduce the chances that the Commission may open an LPFM filing window next summer.

The Alliance’s fears about bureaucratic delay may be valid – but consider this: the NAB/EMF request was filed on September 15, and it was granted on September 16. Say what you will about bureaucratic delay, the Media Bureau can obviously move fast when it wants to.

Update: Comment Deadlines Extended in LPFM/FM Translator Rulemaking

Forget about what they say about ill winds blowing no good. The East Coast’s recent encounter with Hurricane Irene has produced at least one arguable benefit: the Commission has announced that the deadlines for comments in the LPFM/FM translator proceeding have been extended for a week as a result of disruptions from the storm. The new deadlines: Comments are due September 6, 2011; reply comments are due September 20, 2011.

Update: Comment Deadlines Set in LPFM/FM Translator Rulemaking

With some proceedings, the FCC seems content to let its handiwork age tastefully before getting published in the Federal Register – like net neutrality, for example, or maybe the CableCARD report and order. That’s definitely not the case with the LPFM/FM Translator Third Further Notice of Proposed Rulemaking. Adopted on July 12, it’s already made it into the Register. That, in turn, establishes the deadlines for comments and reply comments. Get your calendars out: comments are due by August 29, 2011; reply comments are due by September 12, 2011.

LPFM v. FM Translator: The FCC Moves to End the Stalemate

With Third Further Notice of Proposed Rulemaking, FCC looks to implement Local Community Radio Act, open LPFM window, and complete processing of long-pending translator applications

It looks like the long-running stand-off between FM translator applicants and low power FM (LPFM) applicants may finally be heading toward some resolution. And from initial indications, it looks like the LPFMers are likely to get the first crack at available spectrum, based on a just-adopted Third Further Notice of Proposed Rulemaking (3rd FNPRM). (As of this writing, the full text of the 3rd FNPRM hasn’t been released; the Commission has issued a public notice describing it.)

The FCC’s action is, of course, an upshot of the enactment of the Local Community Radio Act (LCRA). The LCRA was Congress’s effort to help sort out the translator/LPFM problem which has been festering for years. 

The 3rd FNPRM invites comments on ways to increase the available opportunities for LPFM applications.  In particular, the proposed new rules would favor LPFM over FM translators in the top 150 markets by ensuring some LPFM spectrum availability before any new translators are authorized. Score one for LPFM. But on the translator side, the Commission is proposing not to re-impose its on-again-off-again limit of 10 translator applications per party -- at least not in areas where translator applications survive the new rules. (The Commission imposed a 10-application limit back in March, 2008, only to suspend it a month later.) Additionally, the freeze on the processing of translator applications would be lifted in “smaller markets and rural communities”, i.e., in places where there’s space for both new LPFMs and new translators.

To determine where translators might be allowed, the 3rd FNPRM contemplates an LPFM channel “floor” in the top 150 markets: unless a certain number of channels are available for LPFM in any specific market, no new FM translator applications would be accepted in that market, and any pending translator applications for that market would be dismissed.  Comments are invited on various important details, presumably including how the floor number might be determined, how a “market” should be defined, and whether existing LPFM stations – or only channel availability for new stations – will be counted in determining whether the floor test has been met.

The Commission intends to open a window for new LPFM applications once the availability of spectrum has been established through the market-floor process. That could be the final window for either LPFMs or FM translators if, as anticipated, applications filed during the window completely exhaust the available spectrum.  The filing window won’t likely open until comments and reply comments in response to the 3rd FNPRM have been submitted and the Commission has released a report and order adopting new rules. 

While that process would ordinarily be expected to take a year or more, Chairman Genachowski expressed hope that the LPFM window could be opened in the summer of 2012.  That schedule is optimistic in any event – even more so in view of the fact that, in addition to the various questions posed in the 3rd FNPRM, the Commission will also have to resolve, in a separate proceeding, a number of other issues necessary for the implementation of provisions of the LCRA. And let’s not forget about the possibility of appeals that might interfere with (or at least discourage) the immediate implementation of any new rules that might be adopted within the next year or so.

Other to-be-resolved questions include: how the Commission plans to address the issue of second-adjacent channel protection for full-power stations, and the related issue of how LPFM applicants may use signal contour plotting (as opposed to fixed mileage separations) to demonstrate that they won’t cause interference. Once such issues have been ironed out, we should all have a better fix on precisely how many channels may be open for filing in the LPFM window (and, thus, about how many applications might be expected).

Processing of long-pending FM translator applications is expected to resume in rural areas and larger communities where the LPFM channel floor is met – but, again, that won’t happen in larger communities until the conclusion of the just-started rulemaking, at the earliest, and it will be tricky even in rural communities while open questions remain about how much spectrum will be reserved for LPFM.

The NPRM also includes proposed limitations on the sale of FM translator licenses. The FCC apparently believes that many FM translator applications were filed by speculators whose primary objective is to sell rather than to operate stations. Whether the FCC will require construction and operation for a minimum period of time or simply restrict sales as it does for LPFM stations remains to be seen. The Commission presumably hopes that it can discourage many such speculators into simply walking away from their applications.

The NPRM would also open up more translators for potential use by AM radio stations.  The present rule allows the rebroadcast of an AM station on an FM translator only if the translator’s underlying permit (or license) was issued prior to May 1, 2009. The Commission invites comment on whether to eliminate that restriction and allow AM stations to use any translator for which an application was filed in the 2003 window, no matter when granted. 

Since there remain a significant number of pending translator applications which might still be granted, the elimination of that restriction would obviously expand the universe of translators available to AM primary stations. Of course, since it’s reasonably certain that many FM translator applications will be dismissed to preserve room for LPFM stations in the top 150 markets, that expansion might be limited to very rural areas. And, since no new translator window is expected until after the next LPFM window – and, as noted, it’s entirely possible that there will be no further new windows for either LPFM or translators if the next LPFM window sucks up all the spectrum – it is extremely unlikely that AM licensees will have an opportunity to file for new translators of their own.

LPFM Impact Inquiry Initiated

Commission to consider audience and revenue data, but not interference, in assessing impact of LPFMs on full-service stations

Last January, when we reported on the enactment of the Local Community Radio Act of 2010 (“LCRA”), we focused on the practical aspects of that new law – and particularly how it might affect the long-running siege between FM translator licensees and applicants, on the one hand, and low-power FM licensees and applicants, on the other. We didn’t bother to mention the homework assignment Congress laid on the Commission in the final section of the Act. In case you missed it, Section 8 of the LCRA instructs that the

Federal Communications Commission shall conduct an economic study on the impact that low-power FM stations will have on full-service commercial FM stations.

Congress didn’t bother to give the Commission any further direction about just what the study should look at or how it should be prepared. The only other detail contained in the Act was that the Commission would have to submit a report about the study to Congress . . . within one year of the LCRA enactment. That means that the FCC’s got until January 4, 2012, to wrap up the study and get its report filed.

The clock is running and time’s a-wastin’, so the FCC has done the only sane thing: it’s asking all of us to help it out.

In a May 10, 2011 public notice, the Commission has solicited input on a range of questions concerning, well, the economic impact of LPFM stations on full-service FM stations.

First off, the FCC is looking for tips on “the appropriate subject matter and scope of the study and report”. Presumably the Commission is as mystified by the terse and cryptic statutory directive as anybody. Congress wants a report on how LPFM stations WILL affect full-power folks, but (unless it’s managed to locate a really, really reliable crystal ball, or maybe a Ouija board) the Commission can’t just peer into the future and tell us what’s going to happen; rather, it’s stuck looking at historical, or at least currently available, data. What’s an agency to do?

The Commission also wants to know what “metrics” it should be considering. Its current thinking is that the study should focus on audience measurements and advertising revenues, since those are the two “most relevant available indicators” for assessing a commercial station’s economic performance. Of course, the Commission is wide open for suggestions of other factors to consider.

With respect to audience ratings, the Commission is looking for data demonstrating the effect LPFM operations have had, or are likely to have, on full-service stations’ audience shares. The Commission helpfully observes that more than half of all currently operating LPFM stations are located outside Arbitron “Metro” markets, which is likely to complicate this particular aspect of the Commission’s study.

The FCC’s inquiry about revenues is similarly vague: to what extent have LPFM stations had – or are likely to have – any “direct or indirect impact on the advertising revenues” of full-service commercial FM stations. Sure, LPFM stations are, by regulatory definition, non-commercial, but they can still air “underwriting” announcements that sound a lot like – and generate revenues like – advertising. Is there any way that the available data (whatever those may be) can be parsed to produce useful insight into the competitive interplay of LPFM and full-service FM stations with respect to revenues?

Geographically speaking, the Commission plans a two-prong approach. First, it will study the particular economic effects on commercial FM stations whose signals “significantly overlap or encompass” one or more LPFM stations. Second, it will at the overall impact that LPFMs have in Arbitron markets, regardless of whether or not the LPFMs are overlapped by full-service stations in those markets. Again, though, the Commission is looking for suggestions – particularly since (as noted above) the FCC knows that there aren’t that many LPFM stations in Arbitron markets, so the second geography-based aspect of the inquiry may be a bit trick to pull off.

Interestingly, the one thing the Commission says it does not plan to look at is the potential interference effect of LPFM stations on their full-service siblings. As the Commission sees it, the interference remediation provisions of the LCRA “adequately protect[ ]” full-service licensees from second- or third-adjacent interference and, anyway, Section 8 of the LCRA (you remember, that terse statutory instruction quoted above) “does not expressly require such an assessment”. True enough – but Congress’s instruction doesn’t really “expressly require” consideration of any particular factor; nor does it expressly exclude any particular factor. Why, then, should audience and revenues be deemed to be within the scope of the statutorily-mandated study, but not interference?

The Commission’s thinking on this point appears to be that, with the new LCRA remediation provisions in place and with a 2003 study in hand predicting that elimination of third-adjacent interference protections would not create any interference risk, there’s no reason to worry about interference. And with this convenient bit of wishful thinking, the Commission proposes to ignore what could be a highly contentious issue.

One might reasonably question the practical utility (let alone the reliability) of the study and follow-up report that the Commission is undertaking. After all, the FCC is starting with virtually no solid data, no established parameters, unclear “metrics”, and a potentially important factor (i.e., interference) simply written out of the game plan . . . and with a deadline which, by the time the public notice comment period wraps up, will be barely more than five months away.

But as was true of the Light Brigade, the Commission’s role here is not to reason why. Congress told it to do something, so the Commission’s got to do it. And once the study is completed and the report filed with Congress, it’s likely that we won’t be hearing any more about this for some time to come. Having enacted the LCRA and, in so doing, ordered up the study and report, Congress will probably figure that it’s done all it needs to do with respect to LPFM matters, and it will move on to other legislative pastures.

 Anyone possessing actual, reliable data about the interplay of LPFM and full-service stations would be doing everyone a public service by submitting it in response to the public notice, if only to build a factual record for future reference. While Congress may think that it’s put LPFM issues to bed for good, others may not be so sure of that.

The deadline for comments is June 24, 2011; the deadline for reply comments is July 25, 2011.

Local Community Radio Act - It's The Law!

With presidential signature, the real work begins; Don't look for any new LPFMs soon

The Local Community Radio Act of 2010 has been signed into law. Fresh from his Christmas get-away to Hawaii, President Obama got right back to business by inking the Act and, presto, thousands of new LPFM stations blossomed across the country overnight. 

Well, not exactly.

While the legislation was signed on January 4, there’s still a long way to go before anyone will be able to tell exactly how much the Act is going to help LPFMs. Despite Chairman Genachowski’s commitment to take “swift action to open the dial to new low-power radio stations”, the fact is that it’s going to take a lot of effort to graft the changes contained in the new law onto the existing regulatory framework.   Additionally, there are major league practical factors that will have to be dealt with – not the least of which is a mass of thousands of translator applications that have been cut off and pending for seven years already.

Let’s look at some of the more obvious problems.

First, the full Commission still has to act on various petitions for reconsideration relative to its 2007 overhaul of the LPFM rules. Those petitions have been gathering dust since early 2008. While the Media Bureau reportedly prepared a draft order for the full Commission’s consideration some time ago, that draft has also been gathering dust – possibly because everyone was waiting to see whether Congress would act. 

Now that Congress has acted, the Commission will have to go back to the drawing boards, reviewing all of its LPFM-related rules and pending proceedings and working to conform those rules/proceedings to the changes imposed by the new Act. That will entail, at a minimum, preparation of a new order (or possibly a revision of the reported draft) disposing of the 2008 recons. It’s a reasonable guess that this will be among the Commission’s highest priorities.

While it’s at it, the Commission will also have to initiate a separate rulemaking to get the ball rolling on the rule changes mandated by Congress. Sure, Congress may have spelled out in considerable detail the rule revisions it wants to see, but those rules don’t just change themselves. Rather, a notice of proposed rulemaking must be drafted and issued, opportunity for comments and reply comments must be provided, a report and order must be prepared, etc. 

Even with maximum prodding (and maximum cooperation) from the full Commission, it would be ambitious to expect the Commission to wrap up all of this much before the end of 2011 – and that’s not counting the time (probably in the 12-18 month range, minimum) it would likely take to resolve any appeals that might get filed along the way.

Let’s say that the Commission does get all its homework done by the end of 2011 (and, to make things easy, let’s also say that no appeals get filed). The next step toward authorizing new LPFM service would be the opening of a filing window. Even if the Commission wants to move super-fast, it would still have to give all LPFM wannabes enough time to prepare for such a window . . . which means that a springtime, 2012, timeframe would probably be the earliest such a window might open. Factor in processing time, construction time, etc., and you’re probably not going to be hearing any new LPFM stations actually taking to the airwaves until early 2013, at the earliest.

And we haven’t even focused on the pending translator applications yet.

The disposition of those translator apps looms large. Back in its 2007 LPFM overhaul, the Commission figured that one way to thin the herd of pending applications would be to impose a ten-application cap. That meant that any applicant with more than ten pending applications would have to select which ten it wanted to preserve; the rest would then be dismissed. But barely a month after the cap process was set in motion, it screeched to a halt. Since a number of folks sought reconsideration of the imposition of the cap, the Commission concluded that it should hold off on the culling process until the recon petitions had been disposed of. Those petitions are the same ones described above (the ones that the FCC still hasn’t gotten to, but probably will now) – in other words, the mass of pending applications remains as it has for the last three-four years.

And that mass is not likely to go anywhere until the Commission disposes of the recon petitions. Once that happens, the winnowing of the pending applications could go forward (using one or more available devices, including caps, or settlements, or engineering amendments, etc.). That, in turn, would facilitate the final processing and disposition of the remaining translator applications, which would facilitate the preparation of LPFM applications once the LPFM window opens.

But what about the fact that grant of the pending translator applications would severely limit the spectrum available for new LPFMs? The LPFM folks may object that it would be inappropriate to grant a boatload of new translator applications because of that potential preclusive effect. The trouble there is that (as we have previously noted) the new Act expressly states that translators and LPFMs are “equal in status”. That would seem to prohibit the Commission from holding up grant of pending and cut-off translator applications just because of possible LPFM preclusion, since any such hold-up would suggest that LPFMs are somehow higher on the spectrum pecking order than translators – and Congress has unequivocally nixed that notion. Of course, if Lo-Po folks attempt to challenge any effort by the Commission to move the translator applications through the processing mill, that would only further complicate, and prolong, the ultimate resolution of an already prolonged, and complicated, morass.

The bottom line here is that the Commission and the Bureau have their work cut out for them, with no quick and easy solutions in sight. Any high hopes that the new Act might automatically and instantaneously clear things up would be unrealistic, to say the least. But the Act does provide much-needed impetus to get the Commission moving . . . and that’s something. Check back here for updates.

Christmas Comes Early For LPFMs

In end-of-term flurry, Congress passes new version of Local Community Radio Act.

With the clock ticking down on this session, and with a newly-elected majority standing in the wings ready to take over come January, the lame duck Congress has managed to pass a new version of the “Local Community Radio Act”. Like its predecessors – H.R. 1147 and S.592 – the latest iteration (H.R. 6533) eliminates third-adjacent separation requirements between (1) low power FM stations and (2) full service FM stations, translators and boosters. Unlike its predecessors, both of which stalled out and sat around for months without final Congressional approval, H.R. 6533 sailed through both Houses in a mere two days: it was introduced on December 16 and finally approved on December 18. Now it’s on to the White House, where the presidential John Hancock is pretty much a given.

It’s not entirely clear what magic language managed to open the door to passage. For the most part, H.R. 6533 is identical to the earlier versions. But H.R. 6533 does include a new section which straddles the question of first- and second-adjacent separations, albeit somewhat awkwardly. 

The bill first prohibits the FCC from reducing first- and second-adjacent separations. That’s the good news for full service licensees.

But it then authorizes the Commission to grant waivers of the second-adjacent spacings when the LPFM applicant can establish that its proposed operation won’t cause interference. (Rolling up its legislative sleeves and getting its legislative fingernails dirty, Congress goes so far as to specifically permit the use of “terrain-sensitive propagation models” and other interference prediction methods for such showings.) That’s the bad news for full service licensees.

But it then provides that any LPFM station operating pursuant to such a waiver must suspend operation “immediately upon notification by the [FCC] that it is causing interference” to a full service station, “without regard to the location of the station receiving interference”. . . and it has to stay off the air until the interference is eliminated or the LPFM guy can demonstrate that the interference isn’t its fault. That’s the good news for full service licensees.

And more good news – the Commission is required to issue such notification “upon receipt of a complaint of interference”. The bill does not appear to require any “proof” of interference – just a complaint.

Full service FM licensees in densely-populated states also get something of a break.  (In this context, a state is densely populated if it has total population of more than 3,000,000 and a population density of more than 1,000 people per square mile.)  In such situations, H.R. 6533 requires the FCC to apply the interference remediation requirements currently applicable to translators and boosters to complaints of interference from new LPFMs on third-adjacent, second-adjacent, first-adjacent and co-channels. (The existing translator/booster remediation process is set out in Section 74.1203 of the Commission’s rules.) Under the new law, it matters not whether the complaints occur inside or outside the protected contours of the interfered-with station. However, interference arising outside the relevant distance specified in Section 73.807(a)(1) will not require remediation.

In another interesting addition to the earlier bills, H.R. 6533 includes a sentence providing that

FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full-service FM stations.

There was never really much doubt about that, but presumably that sentence may serve to discourage attempts to elevate LPFM stations over translators and boosters in the overall hierarchy of secondary FM services.

The new law requires the FCC to undertake an “economic study on the impact that low-power FM stations will have on full-service commercial FM stations” and to report its findings back to Congress in a year. That little chore will not, however, affect the licensing of new LPFM stations in the meantime, however, according to a new subsection.

The LPFM industry and its cheerleaders have been lobbying hard for this legislation for years, and they are likely to be pleased that it has finally negotiated the Congressional maze. Whether the new remediation provisions of H.R. 6533 will disappoint them remains to be seen.

But a big, if unheralded, winner here is the radio reading services (RRS) industry. The act expressly provides that existing distance separations – including, presumably, third adjacent separations – will still apply to all full-service FM, FM translator and FM booster stations that provide RRS by analog subcarrier. That provides a significant incentive for full-service licensees, in particular, to make room on their SCAs for RRS. Of course, the downside of this is likely to be increased reporting requirements to the Commission. Presently, licensees aren’t required to let the FCC know what they’re transmitting on their subcarriers. If the content of their SCAs will now affect the level of protection to which they’re entitled – as H.R. 6533 clearly provides – the Commission will presumably have to develop some mechanism for keeping track of SCA content going forward.

While the Act has now been passed by both Houses of Congress, it won’t be implemented until the President signs it and then the FCC takes the necessary steps to turn legislative language into regulatory action. But at this point, any uncertainty is limited to when, not whether: protection from third-adjacent LPFMs is, for most purposes, a thing of the past. And with the passage of the bill, we may also look for movement on the FM translator front. Recall that there remain several thousand translator applications still pending from the 2003 window. To some degree they have been caught in the on-going tug-of-war between LPFM and translator interests which has stalled out most LPFM and translator activity for years. The new act will likely provide the Commission with incentive to resolve the years-long impasse in the relatively short term. Stay tuned for further developments.

S. 592, Where Are You?

Bill that would eliminate LPFM third adjacent protection requirement stalled out in Senate

About a year ago we reported that S. 592 (the “Local Community Radio Act of 2009”) had received the big thumbs up from the Senate Commerce Committee and appeared to be heading for passage, since it had already made similar headway on the House side. We suggested that it would become the law of the land sooner rather than later.

Flash forward to today – and the bill is still gathering dust.

Oops. Unless your desk calendar is based on, like, geologic time (and, truth be told, sometimes we get the impression that that may be the case in some FCC offices), a year isn’t really sooner rather than later, so our prediction was (how can we say this correctly and still retain a modicum of credibility?) perhaps not as precisely accurate as we might have preferred.

What happened?

According to a report posted recently on Politico.com, a number of senators have slowed things down by preventing a full Senate vote on the bill. Politico.com says that Wyoming Senator John Barrasso currently has placed a hold on the bill, while the other Wyoming Senator (Mike Enzi) and Oklahoma Senator Tom Coburn have previously done the same. It seems that Barrasso “wants to ensure [the bill] includes language that distinguishes full-power FM stations from low-power FM stations”, while Enzi objected to the bill because “New Jersey was given an exemption from the proposed changes” in the bill, according to the Politico.com.

Who knew?

Proponents of the bill are quoted by Policitico.com as suggesting darkly that “corporate special interests” may be at work here, deftly deploying “procedural drag” to their presumably dastardly advantage. For its part, the NAB assures that it is “not against the concept of low-power FM stations” (i.e., the target beneficiaries of the bill) . . . but cautions that “[y]ou just can’t give everyone a Social Security card and a radio station at birth and think that there’s not going to be chaos on the airwaves.”

Once bitten, twice shy. We hereby officially decline to opine when, how, or even whether this impasse is likely to be resolved (although the end of this particular Congressional session could close the door on the bill for good, depending on -- among other things -- how those pesky mid-term elections turn out). But we will try to keep our readers apprised of developments as they come to our attention, sooner rather than later.

HD Radio Power Increase: The Deadline For Reconsideration Is Set

Mark your calendars: reconsideration or review must be sought by May 10

Back at the end of January, the Media Bureau announced that it was amending the rules to give a leg up to HD Radio. Now, more than two months later, the Bureau’s Order has been published in the Federal Register. This starts the 30-day clock for anyone seeking reconsideration or review of the revised rules. Petitions for reconsideration or applications for review are due no later than Monday, May 10, 2010.

As we reported back when the January Order was released, the new rules will allow dramatic increases in operating power for IBOC digital FM service: most stations will be allowed to increase their digital power by 6 dB upon a simple notification to the Commission, and increases up to 10 dB over current levels may be possible for many stations. The January Order also adopted a detailed complaint process, although that process is not particularly user-friendly and may not be all that a potential victim of interference would have hoped. 

While Federal Register publication starts the recon clock, it does not mean that the new rules are now effective, nor does it tell us precisely when the rules will become effective. Because of the intricacies of the Paperwork Reduction Act, the new rules require approval by the Office of Management and Budget (OMB). The rules cannot become effective until the later of (a) 30 days after Federal Register publication of the Order (i.e., by May 10), or (b) when the new rules have been approved by OMB and notice of that approval has been published in the Federal Register. Although the Commission has submitted its request for approval to OMB, OMB has its own separate comment period which will not wrap up until May 4. It’s anybody’s guess as to how long OMB approval may take – sometimes OMB acts quickly, other times not so much.

In the meantime, however, the Media Bureau continues to accept requests for STA to increase digital power. If you’re interested in seeking such an STA, check out the guide the Bureau has provided for that purpose.

Ask, And It Shall Be Given To You

HD Radio proponents ask for, and get, major digital power increase; First adjacents get minor protection

The Media Bureau has dramatically increased the power level for IBOC digital FM service (the service known in the marketplace as “HD Radio”). In so doing, the Bureau effectively dismissed, or at least minimized, serious interference concerns expressed by non-HD stations (particularly those operating on channels first adjacent to HD stations). While the increased HD power authorizations will still be subject to a complaint process which could theoretically reduce maximum power available in certain situations, that complaint process – at least at first glance – falls short of everything a victim of interference might have hoped for.

The Bureau has decided that “eligible stations” should be permitted to increase their digital power by 6 dB – meaning that their digital power can move – pretty much with no questions asked – from the current maximum ERP of 20 decibels below carrier (-20 dBc) to -14 dBc. Once the new rule becomes “effective”, eligible stations will be permitted to go to that -14 dBc limit without any prior approval, as long as they file a notification of the increase through CDBS within 10 days. While the revised power increase rule won’t technically be “effective” for some time, the Bureau, apparently eager to make the higher power available without the legalistic nicety of “effectiveness”, has announced that it will grant STAs in the meantime. (See below for more details on the STA process.) Stations “eligible” for this immediate upgrade are non-“super-powered” stations.

Read on for more details.

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.

Interference From Lilliputian FMs Gets Senate Thumbs Up

Bill to remove third adjacent LPFM protection moves ahead

On November 19 the Senate Commerce Committee approved S. 592 (“the Local Community Radio Act of 2009”), a bill that would repeal the LPFM third adjacent channel protection requirement contained in Section 73.807 of the Commission’s rules.  The bill is now teed up for consideration by the full Senate. Meanwhile, over on the House side, a corresponding bill (H.R. 1147, going by the same catchy moniker) already made it out of Committee in mid-October. We wrote about both the House and the Senate bills when they first floated to the surface some months ago.  As a result of the Committees’ recent actions, Congressional approval of the proposed legislation is just a couple of votes from reality. And, with no sign of objection from the White House, the smart money figures that this will become the law of the land sooner rather than later.

While the bills (which are, with minor exceptions, identical) focus on the LPFM service, full-power FM stations should be sure to take a close look at the full impact of this likely-soon-to-be law. 

As we have reported previously, the Commission modified its rules in 2007 to relax considerably the extent to which LPFM stations have to protect second adjacent full service stations. That rule change was upheld in 2008 by the U.S. Court of Appeals for the D.C. Circuit. So second adjacent protection has already been seriously weakened. The Local Community Radio Act would toss third adjacent protection from LPFMs out the window – leaving full service stations fully guarded against only co- and first-adjacent LPFM interference, with only partial protection from second adjacent. (And it would not be too much of a stretch to imagine that, with Congressional elimination of third adjacent protection and the Court’s blessing of the reduction in second adjacent protection, the Commission might try to eliminate all protection from second adjacent LPFMs.)

While the Local Community Radio Act seems geared primarily toward the paring back of protection, it ironically would create a new species of protection which could give the Commission enforcement headaches galore. The Act mandates that third adjacent protection from LPFM interference is to be retained with respect to full-service noncommercial educational FM’s “that broadcast radio reading services via a subcarrier frequency”. That’s swell, except that SCA operation is largely unregulated and unmonitored by the Commission. In other words, the FCC currently has no way of knowing, from one day to the next, which stations happen to be using one or both SCAs for radio reading services. Since providing such a service will, under the new Act, afford a full service NCE station some greater measure of interference protection, it would not be surprising to see an upsurge in such services in the foreseeable future. It will be most interesting to see whether – and if so, how – the Commission will react to this particular piece of legislative handiwork.

The Local Community Radio Act promises to have continuing effect on the FM industry for some time to come. We will keep you updated on further developments as they arise.

Brrrrrrr - The Chill Is On

FCC announces immediate freeze on certain FM allotment proposals, eventual freeze on ALL FM applications in light of upcoming December filing window

With the announcement of an upcoming open window for certain FM allotments, the Commission has frozen, effective immediately (i.e., as of October 16, 2009), (a) applications proposing to modify the reference coordinates of any of the 67 allotments available for application in the upcoming window, or (b) petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of those 67 allotments.  (Curious about precisely which allotments are in play here?  Click here for the list.) 

This freeze will remain in effect until the day after the close of the window. The window is currently set to close on December 18, which would mean that the freeze should be lifted on December 19, barring any unforeseen developments.

The Commission also froze the filing of any commercial or noncommercial minor mod applications after 11:59 p.m. on November 25, 2009 until the close of the window

These freezes are standard operating procedure when filing windows are about to be opened. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) that could muck up the filing process.

For more information on the upcoming window opportunity itself, see our relating post here, or the underlying FCC public notice here.

Takin' Care of Bid-ness

FCC gavels Auction 79 to a close

After 50 rounds of bidding which spanned three weeks, Auction 79, featuring 122 FM construction permits, came to an end late on the afternoon of September 15. Unlike previous auctions which raked in tens of millions of dollars for the federal coffers – like the 2007 auction that brought in $21 million or the 2006 affair that fetched $54 million – Auction 79 barely brought in a paltry $5 million.

When the FCC announced that it was going to conduct an auction in the current economic climate, several industry participants complained. Those who predicted a lack of enthusiasm were proven correct. Out of 122 construction permits on th auction block, more than half attracted only the minimum bid or no bid at all. Thirty-seven permits will have to be trotted back out in a few years for re-auction because nobody showed any interest in them this year.

A few markets did spark some spirited bidding that nudged the final bids above the initial minimums. However, there were no seven-digit pay-outs this time around, unlike auctions past. The top three priced permits were in California and Florida with Murietta, CA, and Palm Coast FL, each commanding bids of around a half-million dollars. Detailed auction results may be found here.

Readers are reminded that the FCC's very strict anti-collusion rules remain in effect for several more weeks. Folks who submitted a Form 175 in this auction – even if they ended up not bidding at all –  should refrain from communicating with one another about the auction.

HD Radio Upgrade: FCC Concentrates and Asks Again

Comments on proposed IBOC power increase due by July 6, replies by July 17

About a year ago a consortium of radio licensees and equipment manufacturers asked the Commission to please, please, please increase the maximum permissible digital power of FM stations using “HD Radio” technology. The requested increase was not a minor tweak by any means: the proposal would rocket the current max upward by a factor of ten, to 10% of the station’s authorized analog power for some, but not necessarily all, stations. (It seems that some Super B stations running at that higher digital power might interfere with the analog signal of some first adjacent B’s, so Super B’s would be exempted out of the increase.) 

As we previously reported, last October the Commission invited comments on the proposal. While a bunch of comments were filed back then, in late May the FCC sent out yet another invite. The deadline for that second round of comments was just announced: July 6 for comments, July 17 for replies. 

Gentlemen (and ladies), start your word processors.

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.

More Comments Invited On Proposed HD Radio Power Increase

The Commission has asked for further comment on a proposal to increase the maximum digital power for FM stations using HD Radio™ technology. As we reported last October, about a year ago a consortium of radio licensees and equipment manufacturers asked the Commission to please, please, please increase the maximum permissible digital power of FM stations using “HD Radio” technology.  (You can find a link to the request in our October post.) The requested increase was not a minor tweak by any means: the proposal would rocket the current max upward by a factor of ten, to 10% of the station’s authorized analog power. (Not all stations would necessarily benefit. It seems that some Super B stations running at that higher digital power might interfere with the analog signal of some first adjacent B’s, so Super B’s would be exempted out of the increase.) 

Since the proponents painted a generally glorious picture of how good HD Radio is, 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.

In any event, last October the Commission invited an initial round of comments on the proposal and, as it turns out, there appears to be considerable disagreement as to whether the proposal really is a good idea. Still, the proponents are urging expeditious action to fix “the coverage shortfalls and reception difficulties” which occur at the current levels. But NPR, which has provided a wealth of test data and related analysis already, has advised that it’s working on yet more testing, with a further report due to be presented this coming September.

So the Commission has now 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. 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.

STAT!! Timely Filing of CP Extension/Assignment Applications Becomes Crucial

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.

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.]

Send In The Clones!

Senate bill for third-adjacent protection relief for LPFMs mimics House version

Late last month we reported on a bill introduced in the House that would eliminate the third-adjacent channel protections which full power FMs have enjoyed vis-à-vis LPFM stations since 2000.  The House bill (H.R. 1147) now has a little friend over on the Senate side: on March 12, 2009, Senators Cantwell, McCain, Leahy, Durbin, Feingold, and Schumer introduced their own bill (S. 592) that would do the very same thing. 

It wouldn’t be a stretch to call these two bills “companion pieces” . . . or even identical twins. Other than minor changes in the “Findings” portion of the Senate bill, there is no difference in the way both bills would implement the changes in the interference protection standards. Just like the House version – indeed, using the same language as the House – the Senate bill would repeal the 2000 law imposing the third-adjacent channel protection (except when radio reading services are involved) and would require the Commission to consider the needs of the local community in determining whether to license LPFM or FM translator stations. 

Interestingly, the Senate’s version of the bill eliminates a pejorative reference to the consolidation of the media industry which the House had thrown in. The House alluded to testimony that there had been “too much consolidation” in some local radio markets and that consolidation had created pernicious “strong financial incentives for companies to reduce local programming”. The Senate bill retains the reference to “too much consolidation”, but drops the suggestion that consolidation is to blame for any reduction in local programming. The Senate version also corrects the House’s math with respect to the number of LPFM stations that were processed with the third-adjacent channel protections in place (the House said the number was 800; the Senate says 500).

With essentially identical measures pending before both Houses, the skids may now be greased for prompt Congressional action. Whether that will actually happen depends on the political process, and who knows how, or when, that will happen? Still, it is clear that, given the right push, Congress could move swiftly to lift the third-adjacent channel protections. Stay tuned.

Coming This September: FCC Auction 79

122 FM CPs set for auction to start on September 1, 2009

Heads up, all you radio folks who have had to sit on the sidelines while the DTV transition got all the attention!! The Commission has announced that the next auction of FM broadcast permits has been scheduled to start on September 1, 2009. Mark your calendars and get your checkbooks ready.

A total of 122 CPs will be on the block. A complete list of the channels/markets involved can be found here.

The public notice is the first step in a standard process which the Commission has historically used in connection with its broadcast auctions. The notice: (a) sets forth the auction methodology which the FCC proposes to use – it appears at first glance to be essentially the same methodology used in earlier auctions, and (b) lists the CPs for sale and ascribes minimum opening bid values to each. The notice also serves as an invitation for public comment about both methodology questions and the specific minimum bid values. Comments are due no later than March 20, 2009, and reply comments by April 1.

Once those dates have passed and the Commission has had an opportunity to address any comments filed, it will issue a further notice providing more detail about the schedule of auction activities, including deadlines for initial applications, upfront payments and the like.

A word of caution. Since the FCC has bothered to include this bold-face disclaimer in its notice, we figure we should pass it along straight from the horse’s mouth:

The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC construction permittee in the broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.

While September may seem well into the distant future at this point, anyone who might have any interest at all in participating in the auction should begin immediately to get familiar with the process.

Third-Adjacent Protection From LPFM's On The Chopping Block

House proposal would boost Lilliputians’ status in FM hierarchy

This week a bill (H.R. 1147) was introduced in the House that may lead to a wave of new Low Power FM stations – possibly as many as 3,000. The bill would statutorily eliminate the third-adjacent channel protection to full-power FM stations. It has garnered the support of 22 Congressman (from both sides of the aisle) thus far.

In addition to adding one more back (or maybe it’s one more forth) to the long-running back-and-forth struggle over third adjacent protections, the bill – if ultimately passed – is also likely to fan the FCC’s ardor for “localism”.

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.

Ordure in the Court?

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.)

A Midsummer Surprise From The FCC: A Revised Version Of The Public and Broadcasting!!!

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.

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.

Third Circuit Decision in CBS/Jackson Appeal

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

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.

Embedded Advertising Proceeding Deadlines Set

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.

Federal Appeals Court Overturns CBS Super Bowl Indecency Fine

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.


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.

Embedded advertising in the cross-hairs

The Commission has released a Notice of Inquiry and Notice of Proposed Rule Making (NOI/NPRM) in which it expresses concern about the practice of "embedded advertising"- and its two primary components, "product placement" and "product integration"- in current programming, particularly as those practices implicate the sponsorship identification rules.  According to the Commission, "product placement" involves the mere use of commercial products as props, while "product integration" entails the inclusion of such products in the dialogue and/or plot of a program.  Various trade press sources have reported that, with the increased use of digital recording devices, television audiences in particular are affirmatively skipping traditional commercial breaks; accordingly, advertisers, with the cooperation of program producers, have gravitated toward embedding techniques to assure access to the audience.  The Commission is concerned that such embedding, when combined with established sponsorship identification techniques, may not adequately inform the public of the nature - or even the fact - of the embedded advertising.

The NOI/NPRM is short on detail.  It simply describes the concerns which have been expressed by some groups about embedded advertising, and seeks comments on those concerns.  For example, how extensive is the practice of embedding?  Are existing sponsorship ID rules effective with respect to embedding?  Interestingly, the Commission does include, in the NPRM portion of the item the suggestion that sponsorship ID notifications on TV be required to be of a certain minimum size and on-air for a particular length of time.  The NPRM does not indicate what size/length the Commission might have in mind, although it does allude to political broadcasting requirements, which specify lettering at least four percent of the vertical picture height and duration of at least four seconds.

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.


A Legacy for Broadcasters

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.

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.

New Version of Mandatory Public File Document Released

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.

Deadline For Localism Comments Extended To April 28

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.

 

Localism NPRM Published in Federal Register; Comment Deadline Set

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.

FCC's Localism Proposed Rules/Tentative Conclusions Present Significant Burden for Broadcasters

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).

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.

Heat on Martin Intensifies on Eve of Media Ownership Vote

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."

 

Martin Facing Onslaught of Criticism

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.

Copps, Adelstein Blast Martin's Cross-Ownership Proposal

One day after Chairman Martin issued his proposal in which newspaper/broadcast cross-ownership would be allowable only in the top 20 markets (see Harry Cole's article on November 13, 2007 for details), FCC Democratic Commissioners Michael Copps and Jonathan Adelstein blasted the proposal in a joint statement.
 
The Commissioners labeled Martin's plan a "wolf in sheep's clothing," which could "propel a frenzy of competition-stifling mergers across the land."  The statement pointed out that the top 20 markets account for more than 43% of U.S. households, and that the proposal would permit a newspaper/broadcast combination in any market in the country, which they labeled "a loophole that Big Media will drive a truck through."
 
While the Martin proposal would contain a restriction that a newspaper could not be co-owned with one of the top four-rated stations in a given market, Copps and Adelstein argue that the stations outside the top four are typically those owned by small, independent broadcasters, and as a result, the Martin proposal could further decimate the "shamefully low levels of minority and female ownership."
 

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.

Martin Single-handedly Seeks To Solve Ownership Impasse

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."

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.

Broadcast localism hearing - trick or treat?

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.

Second Circuit Trashes FCC Indecency Policy

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.

FCC Introduces New EAS Rules

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.

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.