Articles Posted in Low Power FM & Translators

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Yesterday, the FCC adopted a Fifth Order on Reconsideration and a Sixth Report and Order (Sixth R&O) designed to facilitate the processing of approximately 6,000 long-pending FM translator applications and to establish new rules for low power FM (LPFM) stations. The result is that the FCC anticipates opening a filing window for applications for new LPFM stations in October 2013.

A number of parties had filed petitions for reconsideration (in response to the FCC’s March 19, 2012 Fourth Report and Order in this proceeding) challenging the FCC’s new limit on the number of translator applications that could be pursued both on a per-market basis and under a national cap. In response to those challenges, the FCC’s just released Fifth Order on Reconsideration: (1) establishes a national limit of 70 applications so long as no more than 50 of those applications specify communities located inside any of the markets listed in Appendix A to that Order; (2) increases the per-market cap from one application to up to three applications per market in 156 larger markets, subject to certain conditions; and (3) clarifies the application of the per-market cap in “embedded” markets.

In the Sixth R&O, the FCC laid the groundwork for introducing LPFM stations to major urban markets. As mandated by the Local Community Radio Act, the Sixth R&O also establishes a second-adjacent channel spacing waiver standard and an interference-remediation scheme to ensure that LPFM stations operating with these waivers will not cause interference to other stations. In addition, the Sixth R&O creates separate third-adjacent channel interference remediation procedures for short-spaced and fully-spaced LPFM stations, and addresses the potential for predicted interference to FM translator input signals from LPFM stations operating on third-adjacent channels.

The Sixth R&O also revises the following LPFM rules to better promote the localism and diversity goals of the LPFM service:

  • modifies the point system used to select among mutually exclusive LPFM applicants by adding new criteria to promote the establishment and staffing of a main studio, radio service proposals by Tribal Nations to serve Tribal lands, and the entry of new parties into radio broadcasting. A “bonus” point also has been added to the selection criteria for applicants eligible for both the local program origination and main studio credits;
  • clarifies that the localism requirement applies not only to LPFM applicants, but to LPFM permittees and licensees as well;
  • permits cross-ownership of an LPFM station and up to two FM translator stations, but imposes restrictions on such cross-ownership to ensure that the LPFM service retains its local focus;
  • provides for the licensing of LPFM stations to Tribal Nations, and permits Tribal Nations to own or hold attributable interests in up to two LPFM stations;
  • revises the existing exception to the cross-ownership rule for student-run stations;
  • adopts mandatory time-sharing procedures for LPFM stations that operate less than 12 hours per day;
  • modifies the involuntary time-sharing procedures, shifting from sequential to concurrent license terms and limiting involuntary time-sharing arrangements to three applicants;
  • eliminates the LP10 class of LPFM facilities; and
  • eliminates the intermediate frequency protection requirements applicable to LPFM stations.

If some of the above changes seem a bit cryptic, it is because the FCC has issued only a News Release briefly summarizing the changes. Once the FCC releases the full text of the orders, we will have a much more detailed understanding of the modifications. The full texts will hopefully become available in the next few days. In the meantime, radio broadcasters, particularly those with large numbers of FM translator applications pending, will be doing their best to assess how these FCC actions will affect their current and proposed broadcast operations.

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The FCC has released a Report and Order which includes its final determinations as to how much each FCC licensee will have to pay in Annual Regulatory Fees for fiscal year 2012 (FY 2012). The FCC collects Annual Regulatory Fees to offset the cost of its non-application processing functions, such as conducting rulemaking proceedings.

In May of this year, the FCC issued a Notice of Proposed Rulemaking (“NPRM”) regarding its FY 2012 payment process and the proposed fee amounts for each type of FCC license. In large part, the FCC adopted its proposals without material changes. With respect to the non-fee related proposals, the FCC imposed a new requirement that refund, waiver, fee reduction and/or payment deferment requests must be submitted online rather than via hardcopy. The FCC also adopted its proposal to use 2010 U.S. Census data in calculating regulatory fees. With respect to fees, Commercial UHF Television Station fees increased across the board, except for the fee associated with stations in Markets 11-25. In contrast, Commercial VHF Television Station fees decreased across the board, except for those stations in Markets 11-25. The fees for most categories of radio stations increased modestly. A chart reflecting the fees for the various types of licenses affecting broadcast stations is provided here.

The FCC will release a Public Notice announcing the window for payment of the regulatory fees. As has been the case for the past few years, the FCC no longer mails a hardcopy of regulatory fee assessments to broadcast stations. Instead, stations must make an online filing using the FCC’s Fee Filer system reporting the types and fee amounts they are obligated to pay. After submitting that information, stations may pay their fees electronically or by separately submitting payment to the FCC’s Lockbox.

Finally, as Paul Cicelski of our office noted earlier this year, the FCC is re-examining its regulatory fee program and has initiated the first of two separate NPRM proceedings seeking comment on issues related to how the FCC should allocate its regulatory costs among different segments of the communications industry. The FCC expects to release the second NPRM “in the near future” and implement any changes from those rulemakings in time for FY 2013.

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Posted in: Fees
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The FCC has issued its latest annual Notice of Proposed Rulemaking containing regulatory fee proposals for Fiscal Year 2012. Those who wish to file comments on the FCC’s proposed fees must do so by May 31, 2012, with reply comments due by June 7, 2012.

The FCC’s NPRM includes an interesting twist. Citing the “rapid transformation” of the communications industry, the FCC indicates that it plans to re-examine its regulatory fee program which has remained largely the same since the program was first introduced in 1994. According to the NPRM, the FCC will be undertaking two separate “Reform Proceedings” in the near future to address the Commission’s regulatory fee program. In the first phase, the FCC will consider the allocation percentages of core bureaus involved in regulatory fee activity and how it calculates those percentages. In the second phase, the FCC states that it will review other outstanding substantive and procedural issues. According to the FCC, “given the breadth and complexity of the issues involved, the issuance of two separate Notices of Proposed Rulemaking will permit more orderly and consistent analysis of the issues and facilitate their timely resolution.”

We will be publishing a full Advisory on the FY 2012 Regulatory Fees once they are officially adopted (likely this summer) and will keep you posted regarding the Phase I and Phase II Reform Proceedings. You may also immediately access the FCC’s FY 2012 proposed fee tables in order to estimate the payments (barring changes) that you will owe in September.

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March 2012

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

Noncommercial radio stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, and television stations licensed to communities in Texas must electronically file their Biennial Ownership Reports by April 2, 2012, as the filing deadline of April 1 falls on a Sunday. Licensees must file using FCC Form 323-E, and must place the form as filed in their stations’ public inspection files.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on whether the Commission should adopt a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC has established for all commercial radio and television stations. That proceeding remains pending without decision. As a result, noncommercial radio and television stations continue to be required to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal application filing.

A PDF version of this article can be found at Biennial Ownership Reports are due by April 2, 2012 for Noncommercial Radio Stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, and for Noncommercial Television Stations in Texas

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March 2012

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Michigan and Ohio must begin airing pre-filing license renewal announcements on April 1, 2012. License renewal applications for these stations, and for in-state FM translator stations, are due by June 1, 2012.

Pre-Filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in Michigan and Ohio must file their license renewal applications with the FCC by June 1, 2012.

Beginning two months prior to that filing, however, full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on April 1. The remaining pre-filing announcements must air once a day on April 16, May 1, and May 16, for a total of four announcements. At least two of these four announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.

The text of the pre-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until October 1, 2012. [Stations that have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]
Our license will expire on October 1, 2012. We must file an application for renewal with the FCC by June 1, 2012. When filed, a copy of this application will be available for public inspection during our regular business hours. It contains information concerning this station’s performance during the last eight years [or other period of time covered by the application, if the station’s license term was not a standard eight-year license term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by September 1, 2012.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of station’s public inspection file] or may be obtained from the FCC, Washington, DC 20554.

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March 2012

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction

April 1, 2012 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas to place their Annual EEO Public File Report in their public inspection files and post the report on stations’ websites.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, attending job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s FCC license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Stations must also submit the two most recent Annual EEO Public File Reports at the midpoint of their license terms and with their license renewal applications.

Exempt SEUs – those with fewer than 5 full time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult “Making It Work: A Broadcaster’s Guide to the FCC’s Equal Employment Opportunity Rules and Policies” published by the Communications Practice Group. This publication is available at: https://www.pillsburylaw.com/siteFiles/Publications/CommunicationsAdvisoryMay2011.pdf.

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March 2012

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local inspection files by April 10, 2012, reflecting information for the months of January, February, and March 2012.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified. Article continues . . .

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By Lauren Lynch Flick and Lauren A. Birzon

Certain stations must also file proxy paperwork and additional fee to avoid usage reporting for the year.

As January comes to a close, don’t forget that annual minimum copyright royalty fees for webcasting and internet simulcasting of radio programming, along with the corresponding forms, are due to SoundExchange by January 31, 2012.

With the exception of certain eligible noncommercial broadcasters (those that are affiliated with NPR, APM, PRI or certain other organizations and have timely elected the rates and terms negotiated with SoundExchange by the Corporation for Public Broadcasting), commercial and noncommercial webcasters and broadcasters streaming content on the Internet must submit the appropriate Annual Minimum Fee Statement of Account, along with a minimum fee payment of $500.00 per stream. For webcasters with multiple streams, the total fee is capped at $50,000.00.

January 31st is also the deadline for certain filers to elect “proxy” reporting, which allows the streamer to pay an additional $100 fee and avoid having to submit regular reports of use to SoundExchange during 2012. This option is only available to certain categories of streamers. “Small Broadcasters” (broadcasters with fewer than 27,777 aggregate tuning hours in 2011), “Noncommercial Educational Webcasters” (noncommercial educational webcasters with fewer than 55,000 monthly aggregate tuning hours in 2011) and “Noncommercial Microcasters” (noncommercial webcasters other than educational webcasters with fewer than 44,000 aggregate tuning hours in 2011) may choose this exemption by filing the appropriate Notice of Election and a $100.00 fee by January 31st, 2012. Certain other filers that are not eligible for a reporting waiver must still file the Notice of Election to elect an alternative to the standard Copyright Royalty Board rates.

Annual Minimum Fee Statements of Account, Notices of Election, and payments should be sent to SoundExchange, Inc., 1121 Fourteenth Street, NW, Suite 700, Washington, DC 20005, Attn: Royalty Administration.

A PDF version of this article can be found at Reminder: Annual Minimum Fee Statements for Streaming Due to SoundExchange by January 31, 2012.

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Around this time last year, I wrote about developments to watch for in 2011 in a piece entitled “A Look Ahead at 2011 Reveals an Interesting Year for Retrans, Renewals, and Indecency“. Fortunately for me, 2011 didn’t disappoint (at least in that regard), with indecency now sitting before the U.S. Supreme Court (oral arguments coming next week), the flurry of retrans negotiations at the end of 2011 bringing a fundamental change in the nature of retrans negotiations that I hope to write about soon, and license renewals being a hot button issue for radio broadcasters in 2011 that will expand to television broadcasters in 2012.

This year, I’ve decided to expand my predictions to include well over 50 events that will affect broadcasters across the country in 2012, and to even go so far as to predict the exact dates on which each of these events will occur in 2012. So with that introduction, I present our 2012 Broadcasters’ Calendar, chock full of useful information for broadcasters and those who work with them. No need to guess at FCC and other government deadlines anymore (which turns out to be a very bad way to achieve regulatory compliance), since you can now tell at a glance what deadlines are coming up for stations in your state and broadcast service.

Using the latest in aerospace materials and technology, and innovatively organized by date, the 2012 Broadcasters’ Calendar is new and improved over our 2011 Broadcasters’ Calendar, principally because it covers events coming up in 2012, as opposed to events that already happened last year (which, again, turns out to be not as useful in a calendar).

So if you are a broadcaster, please join me in greeting 2012 with confidence in your upcoming regulatory obligations, and the warm feeling that comes from knowing that (one more prediction!) 2012 will be a monster year for political advertising buys (see 2012 Broadcasters’ Calendar – Nov. 6 – U.S. General Election).

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Low Power Broadcaster’s Defiance Results in $7,000 Upward Adjustment
  • Unauthorized Post-Sunset Operations Lead to $4,000 Fine for AM Station

Belligerence Costs a Florida Broadcaster an Additional $7,000

Pursuant to a recently issued Notice of Apparent Liability (“NAL”), a Florida low power FM broadcaster was penalized an additional $7,000 for refusing to power down its transmitter at the request of agents from the FCC’s Tampa Field Office. In June 2010, FCC field agents, following up on a complaint lodged by the Federal Aviation Administration regarding interference to its Air Traffic Control frequency at 133.75 MHz, employed direction-finding techniques to locate the source of the interference. The source turned out to be a low power FM station. When approached by the agents, a “representative of the station” repeatedly refused to power down the station even though the agents explained that the interference was an “ongoing safety hazard” and a “safety of life hazard.”

During a subsequent telephone conversation between the station owner and an agent, the owner refused to let his representative at the station power down the transmitter until the station engineer was present. The station owner arrived at the transmitter site 30 minutes later and allowed the agents to inspect the station. At the time of the inspection, agents discovered that the station was using a transmitter that was not certified by the FCC, a direct violation of Section 73.1660 of the FCC’s Rules. The base forfeiture for operating with unauthorized equipment is $5,000.

Two months after the site inspection, the Tampa Field Office issued a Letter of Inquiry. In its response, the licensee admitted that the noncompliant transmitter had been in use for approximately four months, up to and including the date of the site inspection. The response also indicated that the transmitter was replaced by a certified transmitter on July 9, 2010.

The FCC decided that the “particularly egregious” nature of the violation, and the station owner’s “deliberate disregard” of an air traffic safety issue, warranted an upward adjustment of $7,000 to the base fine. The NAL therefore assessed a $12,000 fine against the station.

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