An Engineer Looks At The RF Compliance Certification

Posted on June 1, 2011 by FHH Law

A couple of months ago, our colleague (and renewal guru) Dan Kirkpatrick previewed the revised application (Form 303-S) that broadcasters will be using in the current renewal cycle. Among the new aspects of the form that Dan addressed was the change in the RF compliance certification. Now our friend Kevin Fisher, of Smith and Fisher (the long-time communications engineering firm that bears his name), has written a post on the S&F blog providing an engineer’s perspective on some of the nitty-gritty details involved in compliance with RF exposure limits. If you happen to share space with other RF users on a single tower (or find yourself in a cluster of communications towers), you’ll probably find Kevin’s observations – which you can find here – interesting.

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Revving Up For Renewal Season II

Posted on March 15, 2011 by Dan Kirkpatrick

Media Bureau formally announces revised renewal form, procedures for upcoming license renewal cycle

The Media Bureau has released a Public Notice announcing revisions to the Form 303-S license renewal application and providing a few more details regarding the upcoming renewal process. (You knew this was going to happen because we told you it was going to.) The notice largely tracks the information we have previously reported, but it does include a couple of interesting surprises worthy of mention and a couple of non-surprises worthy of attention. 

First, the revised renewal form requires commercial applicants to certify that: (a) their advertising contracts do not discriminate based on race or ethnicity; and (b) those contracts in fact contain nondiscrimination clauses. We knew that was coming; what we didn’t know for sure was the precise time frame that the certification would cover. Now we do: while the language of the certification is still in the present tense (“Licensee certifies that its advertising sales agreements do not discriminate...and that all such agreements…contain nondiscrimination clauses” [emphasis added]), the Notice indicates that the certification will refer retrospectively back to March 14, 2011 (i.e., the date of the Notice). 

Since the FCC first generally alerted broadcasters in 2008 that some certification would be required, licensees have had plenty of opportunity to get their nondiscriminatory houses in order. Those who haven’t done so can still correct the problem by notifying all advertisers on the books as of March 14 that all advertising sales agreements effective on or after that date are deemed to include the necessary nondiscriminatory provisions. (We have previously posted some sample language that might do the trick here.)

The second surprise – actually, it turns out to have been more like a head fake, we think – involves certifications of compliance with the RF exposure guidelines.

When the Bureau’s anticipated changes in the renewal form first emerged last Fall, one of the highlights was the fact that radio licensees would be relieved of the burden of submitting any exhibits to their RF certifications. But the Notice now could be read to say otherwise:

For stations that have had a material change in their RF environment since they last received a grant of a license application or license renewal application, either an exhibit or a worksheet demonstrating compliance with the RF exposure limits is required.

That seems to say that, at least in some limited cases, it may be necessary to submit something – like an exhibit or worksheet. But that would be flatly inconsistent with what the Commission said last Fall when it spoke, repeatedly and unequivocally, of the “elimination of the exhibit requirement for radio broadcasters”. What’s up with that?

After reading this over several times and chatting informally with the Commission’s staff, we think that the key to understanding the Notice is as follows: while the Notice does say that an exhibit or worksheet demonstrating compliance is, in some instances, “required”, it does not say that that exhibit/worksheet is “required to be submitted with the application”. That is, where there has been a material change in the RF environment of your transmitter site since grant of your last renewal or license application, you will have to work through the worksheets to confirm that the site is still in compliance. (And if the worksheets don’t confirm that, you’ll need to enlist the help of a consulting engineer to study the situation.) But once you get to the point that you can confirm compliance, you would simply so certify and that would be that. No separate supporting documentation would need to be submitted with the renewal application (although it would be a good idea to hold onto your worksheets or engineering study, in case somewhere down the line the FCC asks you to explain your certification).

We’re reasonably confident that this is what the Bureau has in mind – but we’ll keep our eyes out, and if we get any contrary information, we’ll post it here. In any event, though, if you are a radio licensee and there have been material changes at your site since your last renewal/license grant, you probably want to begin looking at the worksheets and, if necessary, lining up engineering services soon.

The Notice also included a couple of useful reminders. 

For one, this renewal cycle the Media Bureau will not be mailing postcards to licensees reminding them of their upcoming renewal applications. In other words, each licensee is on its own to remind itself when its renewal is due. (Where the Bureau has an e-mail address, it will attempt to remind the licensee by e-mail – but if no such reminder arrives, that will not excuse a failure to file on time.) As a reminder, the first license renewal applications are due for radio stations in D.C., Maryland, Virginia and West Virginia on June 1.

Second, the Notice advises that the earliest date on which renewals may be filed is May 2. Form 303-S may be available on CDBS prior to May 2, but it can’t be submitted until then – no matter how many eager beaver licensees may prefer to get it over with before then. While there is currently (i.e., as of March 15) a version of Form 303-S listed on CDBS, don’t be fooled: that’s probably NOT the new version. Check under the official OMB number at the top right side of the first page – if it doesn’t say “March 2011”, it’s not the new version. If it’s not the new version,  don’t spend any time looking at it (or the instructions, which are also outdated). If you want to see a PDF version of the new form and instructions, you can find that on the FCC’s forms page. But that version is just for reading – you can’t complete and submit it on line. You’ll have to wait for May 2 for that.

As always, check back here for updates.
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Update: Form 303-S

Posted on February 16, 2011 by FHH Law

Broadcast renewal form still in flux following OMB approval

In reporting on the OMB’s approval of the New and Improved Form 303-S, we mentioned that, according to the FCC, the certification concerning non-discrimination in advertising would not appear when the form was being filled out by a noncommercial licensee. The form would be smart enough to know not to bother to present the certification option to a noncom applicant, since that option would theoretically be irrelevant to noncoms. Schweet!!!

Oops. It turns out that, even though that’s what the Commission told OMB, that’s not the way it’s going to work. The Commission has instead chosen to do it the old-fashioned way, i.e., by providing an “N/A” (for “not applicable”) option for NCE respondents. It seems that the fancy now-you-see-now-you-don’t approach to the certification would have required more tinkering with CDBS than the Commission was willing to undertake . . . particularly in view of the fact that the Commission is looking to phase CDBS out as part of a wholesale overhaul of its electronic systems over the next couple of years.  No need to trick out the old Datsun if you're going to be trading it in on a Volt pretty soon.

So despite what the Commission told OMB in the initial go-around, the new form (when it’s unleashed in the near future) will include the classic “N/A” option relative to noncommercial applicants. 

Look for a public notice from the Commission addressing the overall renewal process (including the New and Improved Form 303-S) in the near future.

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Form 303-S: Improved And Approved

Posted on February 11, 2011 by FHH Law

Revised broadcast renewal clears OMB hurdle, now ready for first round of radio renewals

The recently revised broadcast license renewal form (FCC Form 303-S) has received the formal blessing of the Office of Management and Budget (OMB) – which means that it’s now just about ready for use by radio licensees whose renewals are due by June 1. (That would be licensees in Maryland, the District of Columbia, Virginia and West Virginia.) OMB signed off on the updated form on February 2 (a scant week after the close of the comment period); that approval has now been published in the Federal Register. Following a 30-day post-publication waiting period, the revised form will officially be “effective”.

The limited materials generated in connection with the OMB review process do contain a couple of items worthy of mention.

First, the FCC’s “supporting statement” confirms our post from last September relative to the basis for the new certification about non-operation. In its statement the Commission specifically quotes from a 2001 decision holding that a “licensee will face a very heavy burden in demonstrating that it has served the public interest where it has remained silent for most or all of the prior license term.” Since serving the public interest is a crucial component of the renewal process, prolonged failure to operate could be a serious impediment to renewal.

Second, our friend John Crigler (on behalf of a number of noncommercial broadcast organizations) filed comments suggesting that the new certification concerning non-discrimination in advertising contracts should include a “not applicable” option for noncoms. That would make sense because, by definition, noncommercial licensees can’t sell “advertising” and thus don’t have any “advertising” contracts to certify about. The Commission rejected that suggestion, however. It turns out (according to the Commission, at least) that when an NCE licensee indicates (in the first section of the form) that it’s noncommercial, the form will not display the advertising certification at all.

As noted, the revised form will be “effective” as of March 14, 2011, i.e., 30 days following Federal Register publication. Media Bureau officials have indicated that they’re planning to issue a public notice on or about that effective date to provide additional guidance for renewal applicants. Check back here for updates.

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Update: Revised Forms Head To OMB

Posted on December 27, 2010 by FHH Law

The mills of bureaucracy grind slowly, but they do eventually grind. 

Last October we reported on changes to the broadcast license renewal application form (Form 303-S) that were in the works. Those changes appear to have passed the first bureaucratic hurdle: having invited public comments (which were due by December 13) and then having waited a decent interval (that would be about two days), the Commission has passed its proposed changes along to the Office of Management and Budget for OMB’s review. Notice of that development has now been published in the Federal Register. This gives everybody yet another opportunity to toss in any comments they might have about the revised form – but this time those comments should be directed to OMB. If you’ve got anything to say to OMB, you’ve got until January 26, 2011 to say it. Once that deadline has come and gone, look for the revised form to be officially released by the Commission, just in time for the next round of renewal applications which are due by June 1.

And along the same lines, the Commission’s efforts to plug a loophole have advanced to OMB. You may recall our post from last November, addressing the question of whether or not digital LPTV, Class A TV and TV translator stations were expected to file Form 317 in December. (Form 317 is the annual “Digital Ancillary/Supplementary Services” report in which digital TV stations tell the Commission whether they’ve aired any subscription-like services on any of their digital streams.) While there were ample indications that the Commission might have intended LPTV, Class A and translator licensees to file – and while some such licensees may already have been filing the reports out of excess of caution – the Commission hadn’t bothered to amend Form 317 to include such stations within its reach. And without a properly revised form, LPTV’s, Class A’s and translators were off the hook.

The Commission figured that out last Fall and started to amend its form, but it was too late to do any good before the December 1 deadline for this year. But next year is a different story. The revised form has now been shipped over to OMB for its once-over. Interested parties have until January 26, 2011 to submit comments to OMB. Given the 11-month headstart, we fully expect that the revised Form 317 will be awaiting all LPTV, Class A and translator licensees come the next deadline in December, 2011.

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FCC Takes Wraps Off Revised Broadcast Renewal Form

Posted on October 13, 2010 by Harry Cole

With the first batch of the next round of broadcast renewals due by June 1, 2011 – less than eight months from now – the FCC has announced plans to tweak the renewal application form (FCC Form 303-S) in five discrete ways. (It was just a month ago that we told you all to be on the lookout for such an announcement.) A copy of the form with the proposed revisions is attached here. 

The five proposed changes include the following:

  • The revised form’s instructions will include a new definition of “eligible entity” designed to reflect the Commission’s “Equity Debt Plus” standard for determining the attributability of certain interests. The version of that standard currently in effect was announced in the Commission’s Diversity Order adopted back in 2007. Presumably the language in the new renewal form will track corresponding language in Forms 301, 314, 315 and 345, all of which were revised about 18 months ago to address the same issue from the 2007 Diversity Order. (Why Form 303-S wasn’t taken care of at the same time as those other forms is not clear – perhaps the Commission felt no need to revise the renewal form at that point because no renewal applications would be due before 2011.)
  • Section II of Form 303-S will contain a required certification that the licensee’s “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” (The form’s instructions will also be revised to address that certification.) This, too, is a response to the 2007 Diversity Order, which for the first time imposed the explicit obligation that advertising contracts contain nondiscrimination clauses. As we observed back in 2008, the Diversity Order technically became effective in 2008, but the certification requirement reaches back to the beginning of the license term, i.e., considerably before then. That could create some practical difficulties (although Steve Lovelady’s post from October, 2008, might provide some guidance around those difficulties).
  • Section III of the form will include a new question (Item 4, with accompanying instructions) requiring the licensee to certify that, during the preceding license term, its station was neither silent, nor operating on less than the required minimum schedule, for any period of more than 30 days. If the licensee can’t so certify, it will have to provide an exhibit specifying “the exact dates ... on which the station was silent or operating for less than its prescribed minimum hours.” If you don’t know what this is about, check out our post on the topic from last month. Note also that the proposed revisions to Form 303-S make clear that, for purposes of this certification, the “transmission of ‘test signals’ does not count toward a station’s minimum operating hours.”
  • The proposed revision of the form would eliminate the longstanding requirement that full power AM and FM licensees submit an exhibit to demonstrate compliance with RF limits. Historically, such an exhibit has been required if the renewal applicant wasn’t eligible to use the RF worksheets in the old Form 303-S. Under the revised form, all applicants would still have to certify that their facilities comply with the Commission’s maximum permissible RF limits – but no additional exhibit would be expected from full power AM and FM folks.
  • Finally, Section V (Item 4) of the form would be changed to clarify that LPTV stations still need to file Form 396 with their renewal application, even though they might not have to file an EEO-related public file report and post that report to their website. Previously, the form required a certification that the licensee had created the public file report and posted it to the station’s website “as” required by the rules. The new form would substitute the word “if” for the word “as” because not all LPTV licensees are subject to public file report requirement.

The good news in all this is clearly the lifting of the RF exhibit requirement from the shoulders of full power AM and FM stations. This should relieve one and all – both private sector applicants and FCC application processors – of an irksome chore, which is all to the good.

Interestingly, while the Commission did publish a notice about its proposed changes in the Federal Register, the Commission stopped short of also publishing a copy of the revised form. You’d think that the FCC would have made the new form available in the Federal Register in order to give everybody the maximum opportunity to look it over as soon as possible. Apparently the Commission doesn’t think like that. While this approach harkens back to the unfortunate situation we all encountered with the FCC’s effort to revise the Broadcast Ownership Report form (FCC Form 323), we need not worry about a re-play of that here. After reading the Federal Register notice, we wrote to the FCC asking for a copy of the form (which we have linked above and here), and the Commission kindly sent one over within a couple of hours.

At this point we can’t say for 100% certain that there aren’t any additional changes lurking in the 39-page form. The ones described above are the ones the FCC has identified in its Federal Register notice. The publication of that notice kicks off a 60-day comment period. Anyone wishing to chip in his/her two cents’ worth relative to the proposed changes has until December 13, 2010 to let the FCC know. After that, the Commission will forward the proposed form over to the Office of Management and Budget, which should give one and all another 30 days in which to comment. Given that timeframe, we can probably expect to see the new and improved Form 303-S online and ready for filing early in 2011, in plenty of time for the first round of renewals.
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