Articles Posted in Low Power FM & Translators

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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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8/15/2011

The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

As of this date, the FCC has not released a Public Notice officially announcing the deadline for payment of FY 2011 annual regulatory fees. However, the FCC’s website indicates that the 2011 annual regulatory fees must be paid no later than 11:59 pm (EST) on September 14, 2011.

As reported in July 2010, beginning in 2011, the Commission has discontinued mailing assessment notices to licensees/permittees. It is the responsibility of each licensee/permittee to determine what fees are due and to pay them in full by the deadline. Information pertaining to the annual regulatory fees is available online at https://www.fcc.gov/fees/regfees.html.

Annual regulatory fees are owed for most FCC authorizations held as of October 1, 2010 by any licensee or permittee which is not otherwise exempt from the payment of such fees. Licensees and permittees may review assessed fees using the FCC’s Media Look-Up website – http://www.fccfees.com. Certain entities are exempt from payment of regulatory fees, including, for example, governmental and non-profit entities. Section 1.1162 of the FCC’s Rules provides guidance on annual regulatory fee exemptions. Broadcast licensees that believe they qualify for an exemption may refer to the FCC’s Media Look-Up website for instructions on submitting a Fee-Exempt Status Claim.

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The FCC has released a Report and Order which includes its final determinations as to how much each broadcast licensee will have to pay in Annual Regulatory Fees for fiscal year 2011 (FY2011). The FCC collects Annual Regulatory Fees to offset the cost of its non-application processing functions, such as its rulemaking function.

Each year, the FCC issues a Notice of Proposed Rulemaking setting forth the amounts it proposes to assess each type of license. After taking comments, the FCC releases the final amounts due for that year. It is common for the FCC to adopt its proposed fees without revision, although last year, the FCC significantly increased the fees on Commercial UHF Television Stations and erased promised reductions for radio stations. In contrast, this year, the FCC adopted the fees almost entirely as it had proposed them in the Notice of Proposed Rulemaking put out in May.

Nevertheless, for FY2011, Commercial UHF Television Station fees again increased across the board from the amounts those stations paid in FY2010. Commercial VHF Television Station fees for those stations outside the top 25 markets decreased across the board. In addition, satellite television stations and LPTV, Class A television, TV Translator, TV Booster, FM Translator and FM Booster stations all had their fee amounts reduced from their FY2010 levels. 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 attached here.

The FCC will release an additional Public Notice announcing the dates of the filing window for the fees and other details; however, it will accept payment beginning immediately. The FCC will not mail the hard copy assessments it has sent to broadcast stations in the past. Therefore, stations must be prepared to file and pay their fees without a specific reminder from the FCC.

As has been the case for the past few years, stations must make an online filing using the FCC’s Fee Filer system to report to the FCC the types and amounts of fees they are obligated to pay. Once they have done that, they can pay their fees electronically or by separately submitting payment to the FCC’s Lockbox.

Finally, the FCC reiterated its commitment to opening a Further Notice of Proposed Rulemaking before the end of 2011 to examine whether it should revise the manner in which it allocates the fee burden among the different industries it regulates, as well as to account for new sectors that have arisen since it first started collecting Annual Regulatory Fees in 1994. Commercial VHF Television Station licensees have previously complained that the FCC assigns too much of the Annual Regulatory Fee burden for media services to VHF stations. Licensees in other services have also objected to the manner in which their fees are calculated. Stations wishing to comment on the rebalancing of the fee obligations will have an opportunity to file Comments once the Further Notice of Proposed Rulemaking is released.

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on June 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by August 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in North Carolina and South Carolina must file their license renewal applications with the FCC by August 1, 2011.

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 license renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on Wednesday, June 1, 2011. The remaining pre-filing announcements must air once a day on June 16, July 1, and July 16, for a total of four announcements. At least two of these four announcements must air between 7:00 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

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

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Last Fall, the FCC adopted final rules allowing Part 15 unlicensed Television Band Devices (TVBDs) to operate in “white spaces”, the slivers of unused spectrum in the television band. To find available slivers of spectrum, the TVBDs will consult a database that is intended to contain information about every use being made of TV spectrum throughout the United States. However, certain users of television spectrum have only until April 5, 2011, to ask the FCC to grant a waiver in order to be included in the interference protection database or risk debilitating interference.

Any facility, including a cable headend, satellite receive facility, TV translator, Class A television station, low power television station or broadcast auxiliary station, that picks up an over-the-air broadcast signal at a point located more than 80 kilometers outside the originating station’s protected contour must file a waiver request with the FCC by April 5, 2011 seeking to have that use included in the white spaces database and protected from interference.

At a later date, the FCC will allow users to register without a waiver those receive sites that are located within the 80 kilometer zone (but outside the station’s protected contour) for interference protection. They cannot do so now because the database is still being developed. In the meantime, waiver requests for locations located outside of the 80 kilometer zone must be filed now and should include the coordinates of the receive site, the call sign of the originating station received over-the-air, and an indication of how potential white space devices would disrupt existing service. According to the FCC, it will accept public comment on waiver requests prior to making a decision on whether or not to grant them.

As a result, any cable headend that has built a tower with a directional receive antenna to pick up particularly distant television station signals, or any broadcaster or TV translator that uses over-the-air signals or a UHF microwave backbone to connect a series of translator facilities, will be prevented from registering such sites outside the 80 kilometer zone unless they seek a waiver by the April 5 deadline. Unintended interference to a cable system’s ability to receive a television station’s signal could result in the television station being dropped from the cable system. Interference to a single link in a long microwave backbone could interrupt signal delivery to all sites further down the line.

While the 80 kilometer “no waiver” zone may seem large, one multiple system cable operator has already filed a waiver request with the FCC indicating that it has headends receiving over-the-air television signals outside that zone in eleven different locations spread across multiple states, including Alabama, Arizona, Illinois, Iowa, Michigan and Minnesota. Thus, if a station is being carried by a far off cable or satellite system, it would be wise for cable and satellite operators as well as TV licensees to double check how and where the TV station’s signal is being received. For TV signals being picked up over-the-air more than 80 kilometers from their protected contour, a waiver request now will be required to ensure continued interference-free signal delivery.

Although receive sites located within the 80 kilometer zone do not face the April 5, 2011 waiver deadline, they will still be affected by the implementation of the white spaces database. Because the data that will be used to populate the database will be taken from the FCC’s existing records, it is important that parties review the data in the FCC’s databases to make sure it is accurate to avoid potential interference from future white space operations.

In January, the FCC’s Office of Engineering and Technology (OET) conditionally designated nine companies as white-space device database administrators: Comsearch, Frequency Finder Inc., Google Inc., KB Enterprises LLC/LS Telcom, Key Bridge Global LLC, Neustar Inc., Spectrum Bridge Inc., Telcordia Technologies, and WSdb LLC. The FCC held a training session for these entities earlier this month. Thus, the rollout of these databases will soon be at hand. OET recently stated that it intends to “exercise strong oversight of the TV bands databases and administrators.” That said, parties should still exercise their own diligence in reviewing the FCC’s databases, registering receive sites, and applying for any needed waivers if they want to avoid interference problems down the road.

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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:

  • Florida FM Translator Fined $13,000 for Unauthorized Operations
  • Latest Public Inspection File Violation Nets Upwardly Adjusted Fine
  • Failure to Monitor Inactive Tower Results in $6,000 Penalty

Failure to Operate as Authorized Costs Florida Broadcaster an Additional $4,000

A recent FCC Notice of Apparent Liability (“NAL”) for $13,000 against a Florida broadcaster serves as a costly reminder that stations must operate in accordance with the FCC’s Rules, and more notably, as specifically authorized in their station license. According to the NAL, the Florida broadcaster failed to heed a verbal warning from Tampa field agents that its station was operating beyond the technical parameters of its authorization. The NAL stated that the Tampa field agents, pursuant to an investigation and following two complaints, took field strength measurements on five separate occasions and visited the station’s transmitter site on two separate occasions over approximately 11 months between October 2009 and September 2010. Field measurements undertaken in October 2009 and early February 2010 indicated that the station was operating with a power level well in excess of its authorization in violation of Section 74.1235(e) of the FCC’s Rules, which states, “[i]n no event shall a station authorized under this subpart be operated with a transmitter power output (TPO) in excess of the transmitter certificated rating and the TPO shall not be more than 105 percent of the authorized TPO.”

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3/18/2011
Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on April 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by June 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in the District of Columbia, Maryland, Virginia, or West Virginia must file their license renewal applications with the FCC by June 1, 2011.

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 Friday, April 1, 2011. 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 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

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Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC’s enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don’t.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn’t remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their “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.” This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in “no urban/no Spanish” ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn’t provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters’ advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today’s Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.