Broadcast Law Blog

Window for Filing Applications for New Noncommercial FM Stations Appears to be Coming Soon – ...

Mon, 10 Aug 2020 14:03:01 GMT

A window for the filing of applications for new noncommercial FM stations in the reserved FM band (below 92.1 FM) appears to be on its way – either later this year or early next. As we reported in our summary of last week’s broadcast legal actions, Chairman Pai last week responded to a Congressional inquiry about the next window for new LPFM stations. In his letter, he stated that the LPFM window would follow a window for new noncommercial FM stations, as noncommercial applicants have not had the opportunity to file for new stations in a decade. The letter says that the NCE window will open after the recently adopted changes in the rules for processing these noncommercial applications become effective later this year (see our article here on those changes). The changes are waiting for Paperwork Reduction Act review before they can become effective.

In fact, the 2010 window for NCE applications was for a limited number of commercial frequencies that had been set aside and reserved for noncommercial use where the reserved band had constraints (see our article on that window here). The last window for reserved band FM stations (stations operating on 88.1 to 91.9 FM) opened in 2007 (see our article here). In that window, the FCC limited any applicant to 10 applications nationwide (see our article here). We would not be surprised to see a similar requirement in any new window. Stations in the reserved band can be located where no interference is caused to any already authorized FM station – so careful engineering analysis is required. Start your planning now as the analysis as to where a new station can be located can be time consuming.

FCC Eliminates Program Duplication Rules for AM and FM Stations

Mon, 10 Aug 2020 13:59:43 GMT

At its meeting last week, the FCC adopted an order that eliminated its rule that prohibits radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week. The elimination of the rule for AM stations had been included in the draft order released several weeks ago in anticipation of the meeting (see our article here). In that draft order, FM program duplication was permitted only by a waiver of the rules. In contrast to the draft order, the majority of the Commissioners voted to permit program duplication for both AM and FM stations. The repeal of the rule for FM stations was justified to give flexibility to stations to react to circumstances that might require duplication to keep a station operating – as might happen during the pandemic or following any natural disaster – without needing to wait for the FCC to rule on a waiver request. The FCC anticipates that such duplication will occur only rarely for FM stations, as there is still an economic incentive to program different formats on different stations to maximize revenue. But stations will now have the flexibility to make that decision for themselves. This order will become effective upon its publication in the Federal Register.

This Week in Regulation for Broadcasters: August 1, 2020 to August 7, 2020

Sat, 08 Aug 2020 21:37:51 GMT

Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

The FCC acted this week on two media modernization items that had been teed up for consideration at its August 6 Open Meeting.
- The day before the meeting, the Commission adopted a Report and Order repealing rules regarding access to TV and FM antenna sites. The rules, as they were written 75 years ago, prohibited the FCC from renewing a TV or FM license if the licensee restricted access by a potential competitor to its antenna site when no other site was available to the competitor. The FCC pointed to the growth of the broadcast industry and number of available independently owned antenna sites as reasons for the repeal. We wrote about the repeal of this rule, here. (Report and Order)
- During the meeting, the FCC repealed the rule prohibiting programming duplication on commonly owned or controlled stations operating in the same area in the same service (AM or FM). Three weeks ago, when the FCC released its draft of the order to be considered at the meeting, and it was written to eliminate the rule only for AM radio. At the meeting, a majority of the Commissioners voted to also eliminate the rule as it applies to FM. It is expected that few FM stations will duplicate programming, as it likely makes less financial sense than for financially challenged AM stations, but the FCC determined that FM stations should have the flexibility to do so. We took a deeper look at the AM radio duplication rule, here. (Report and Order) (News Release)
In response to a letter from Rep. Xochitl Torres Small (D-NM) requesting that the Commission open an LPFM application filing window, FCC Chairman Ajit Pai indicated that the FCC would open such a window after Media Bureau staff has processed the applications filed in a window for new noncommercial educational FM stations that may open later this year or early next year. This may be the first confirmation of this upcoming noncommercial FM filing window. ( Small Letter) (Chairman Pai Letter)
The FCC’s Enforcement Bureau upheld its decision to fine a Palmdale, California FM translator station $12,000 for operating at transmitter output power levels that exceeded the levels specified in its license. The decision reiterated that it is the licensee’s responsibility to operate within legal limits and that the FCC need not warn a station about illegal operations before issuing a fine. Translator operators should review the Order and ensure their operations comply with all applicable FCC rules. Read more about this decision in our article here.
In FCC leadership news, President Trump withdrew FCC Commissioner Mike O’Rielly’s nomination for another five-year term at the Commission. Before the withdrawal, O’Rielly’s nomination had cleared the Senate Commerce Committee and was headed for full Senate consideration when Senate Armed Services Committee Chairman Sen. Jim Inhofe (R-OK) placed a hold on the nomination. Inhofe said he issued the hold over O’Rielly’s vote to approve an FCC Order that some argued could cause interference to GPS operations. However, there has been much press speculation that President Trump withdrew the nomination over O’Rielly’s concerns about the President’s proposals on Section 230 of the Communications Decency Act of 1996, the provision of federal law that gives online platforms broad immunity from what users post on these platforms (see the bullet below). O’Rielly has suggested that any changes in Section 230 need to take care to not infringe on First Amendment free speech rights. Unless his nomination is reinstated, and he receives Senate confirmation, O’Rielly can continue serving only through the end of 2020.
The FCC is inviting initial public comment on a Petition for Rulemaking submitted to the FCC by the National Telecommunications and Information Administration seeking an FCC interpretation of the protections given by Section 230 of the Communications Decency Act of 1996 to online platforms for the contents of material posted to their platforms by third parties. One of the specific questions asked is the extent to which those platforms can edit the third-party posts and retain their immunity from liability (we wrote about Section 230, its protections, and applicability to broadcasters here and here). This petition is a response to President Trump’s Executive Order on Preventing Online Censorship. The public has until September 2 to submit comments on the rulemaking petition, and 15 days to respond to any comments that are filed. As these are just preliminary comments on the petition for rulemaking, the FCC will likely issue a formal Notice of Proposed Rulemaking before taking further action on the petition. Thus, any substantive action on this issue will almost certainly not come before the November general election. (FCC Public Notice)
In letters to Reps. Ann McLane Kuster (D-NH) and Chris Stewart (R-UT), FCC Chairman Ajit Pai addressed the representatives’ concerns about increases in the regulatory fees the Commission collects from broadcasters. Pai wrote that he is sympathetic to their concerns, but federal law gives the Commission little leeway to excuse broadcasters from paying these fees. The FCC by law must assess regulatory fees in an amount reasonably expected to equal the amount of money Congress has allocated to the agency, which for 2020 is $339 million. The FCC must collect those fees by September 30. The Chairman noted that the FCC has some flexibility to offer payment plans with a nominal interest rate if a station can demonstrate a financial hardship and inability to pay. The Chairman also reminded the members of Congress that Congress can change the fee requirements and could, among other things, give stations more time to pay. (Letters)
The Solicitor General, on behalf of the FCC, submitted to the Supreme Court a reply brief encouraging the Court to take up Federal Communications Commission v. Prometheus Radio Project, et al., an appeal of a 2019 decision where the Third Circuit Court of Appeals rejected the FCC’s reforms to its media ownership rules. Over the last few months, the FCC has taken steps to get the Supreme Court to review that decision. The Justices are expected to decide later this year whether to consider the government’s appeal and take the case. Catch up on the history of this proceeding, here. (Reply Brief

$12,000 Fine to Translator Operator for Overpower Operations – Review Your Translator’s ...

Fri, 07 Aug 2020 15:14:59 GMT

A $12,000 fine issued to an FM translator operator for operating with a transmitter power output that exceeded its licensed limits was upheld by the FCC’s Enforcement Bureau in a decision released this week. The Commission rejected the licensee’s argument that the Commission should have first given it notice and an opportunity to fix the improper operation before issuing a fine. The FCC noted that licensees, not the FCC, have the obligation to determine if they are operating legally or not. The FCC also rejected an argument that the licensee was only trying to maintain its effective radiated power when its antenna was damaged by a storm when it increased its transmitter power output. But, unlike for full-power stations, the transmitter power output of FM translators is regulated, and to make a change, you need FCC approval. The FCC also rejected attempts to reduce the amount of the fine based on the licensee never having been fined before, an argument rejected based on the licensee’s record that included several other violations that had not resulted in fines.

When we wrote about this case when the FCC’s staff initially issued the fine, we warned translator operators to keep this case in mind when reviewing their operations. With so many new translators coming on the air in the last few years, it is important for operators to remember to limit TPO to what is specified in a license. The power output cannot exceed 105% of what is authorized on the license (See Section 74.1235(e) of the FCC Rules). Full-power non-directional FM stations, on the other hand, can generally change their TPO and transmission line without prior FCC approval as long as the change does not result in changes to authorized ERP (and even some ERP changes are permitted without a construction permit application – see Section 73.1690 for details), with the licensee only having to file an application for license on Form 302 after the changes have been made. But translators need approval to change TPO before it is done. Translators can sometimes be out of sight and out of mind. But licensees are just as responsible for their proper operation as they are for the proper operation of any other station. Given the size of the fine issued in this case, translator operators should be sure that they know the rules and review their operations to make sure that these operations fully comply with all of the FCC’s rules.

FCC Eliminates Rule Requiring Broadcast Station Tower Owners to Give Access to Competing Stations

Thu, 06 Aug 2020 15:04:22 GMT

The FCC yesterday acted to resolve the proceeding begun a year ago (see our article here) to eliminate the rule that prevented an FM or TV broadcaster from denying space to a competing broadcaster on a broadcast tower that it controls. As expected, that rule was eliminated by an order to become effective when it is published in the Federal Register (as it adopts no new paperwork requirements, review under the Paperwork Reduction Act which so often delays the effective date of FCC actions is not required). This rule was initially adopted 75 years ago and, in the past, it had been seen as a way to ensure that a broadcaster could not, by withholding access to a unique tower site that the existing broadcaster controlled, foreclose a new competing station from coming on the air.

The FCC justified its abolition of the rule by finding that there are many more towers now available to broadcasters than were available when this rule was first adopted, and most of these new towers are owned by companies that do not own broadcast stations and have no incentive to stop a new broadcast station from leasing space on their facilities. Also, the FCC noted that it is not the lack of access to tower space that limits the ability of potential broadcasters to launch new competitive stations in a market, but instead the lack of available spectrum in any community on which to operate a new FM or TV station.

The rule was always very narrow in scope, and thus had never been successfully used. The rule only prohibited the renewal of the license of a radio or TV station that did not provide access to a unique tower site to a potential competitor. The FCC could never force a broadcaster to provide access to a competitor – it could only wait to the next renewal and decide not to renew a station license if the competitor was denied access. Moreover, the competitor had to prove that the site to which it was denied access was unique – that there was no other suitable site from which the competitor could operate. As there were always arguments that some new tower could be built to accommodate the competitor, or some building might exist where its antenna could be mounted, that uniqueness requirement limited the applicability of the rule.

Many years ago, I represented a new broadcaster who had tried to use that rule to gain access to a tower site that appeared to be the only one from which it could launch its new TV station. While in initial orders the FCC declined to order the licensee to make the site available (as its renewal was pending), the complaint based on this rule did eventually result in the new TV station getting access to the tower. But that was a different time, when there were few towers and many more new entrants to the broadcast industry. Now, when towers have become much more plentiful with the explosion of wireless companies that demand tower space, and so few new broadcast stations, the rule appears to have outlived its usefulness. So, as the FCC noted, no broadcaster supported its retention. Now it is one less rule broadcasters have to remember.

Identifying the Legal Issues in Using Digital and Social Media – A Video Webinar

Wed, 05 Aug 2020 15:41:36 GMT

Almost every broadcaster and other media company uses digital and social media to reach their audiences with content and information that can be presented in ways different than those provided by their traditional platforms. Whether it is simply maintaining a website or streaming audio or video or maintaining a social media presence to reach and interact with their audiences, these alternative platforms pose their own legal issues. These issues can range from the protection of a current brand to concerns over having the rights to exploit content that you obtain from others. You can have concerns over music rights. There has been much litigation over improper uses of photos found on the Internet (see our articles here, here and here). And there are concerns over the rights of social media platforms to use your content in ways that you don’t expect (see my blog articles here and here). Toss in some sponsorship identification issues from the FTC and emerging privacy concerns, and there are plenty of legal issues that you need to consider in exploiting digital platforms. To help highlight the issues, I conducted a webinar for numerous state broadcast associations a few weeks ago, the video of which is available below (note that the sound quality was a little rough at first but improves a few minutes into the discussion). Plenty of legal issues for any media company to consider: