Articles Posted in Low Power FM & Translators

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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.

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As we reported previously, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) in 2009 which requested comment on a number of proposals to modify its allotment criteria. In particular, the NPRM sought to restrict the ability of rural radio stations to move into Urbanized Areas. The FCC has released its Order in the proceeding, adopting some of its proposals to limit rural stations’ ability to move to larger communities, modifying its existing rules, and proposing new rules implementing a Tribal Priority.

Under Section 307(b) of the Communications Act, the FCC is required to ensure a “fair, efficient and equitable” distribution of radio services to the various states and communities in the country. In deciding where a new or modified radio station should be allotted under Section 307(b), the FCC uses a set of four standard “priorities,” as well as a Tribal Priority for Native Nations operating largely on Tribal Lands. The four standard priorities are: (1) First fulltime aural (reception) service; (2) Second fulltime aural service; (3) First local (transmission) service; and (4) Other public interest matters. Priorities (2) and (3) are considered equal. Where the Tribal Priority applies, it is considered between Priorities (1) and (2).

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Earlier this month we posted our 2011 Broadcasters Calendar on CommLawCenter as well as on our Pillsbury web page. We have been annually publishing the Broadcasters Calendar, which contains much information regarding broadcast station deadlines and legal requirements, for as long as I can recall. It has always been one of our most popular publications, and I usually get calls beginning in early November asking when next year’s calendar will be available. The “easy to read” pdf version of the Calendar can be found here, and a text-searchable version is available here.

Even a brief review of the 2011 Broadcasters Calendar reminds us that 2011 will be a busy year for not just broadcasters, but for cable and satellite operators as well. October 1, 2011 is the deadline by which broadcasters qualifying for must-carry need to notify cable and satellite operators of their election between must-carry status and retransmission consent. Recent retransmission disputes once again remind us that retransmission negotiations and their associated revenue are critical to the future of broadcast television. However, the sheer volume of negotiations and carriage disputes likely to occur following the October 1 election deadline will almost certainly make this holiday season look tranquil by comparison.

Adding to the action will be continued efforts by the cable and satellite industries to draw Congress and the FCC into the fray, introducing legislative and regulatory uncertainties into an already complex negotiation process. Their chances for success will depend greatly upon how much disruption in carriage of broadcast programming occurs in 2011, and the public’s perception of who is at fault for that disruption. Regardless of the outcome of this particular Washington confrontation, look for 2011 to be the year where economics force cable and satellite providers to more tightly link the number of viewers a program service attracts with the amount they agree to pay for that service. Overpaying for niche cable networks that don’t pull in large numbers of viewers is so “last decade”.

2011 also marks the beginning of the FCC’s next eight-year license renewal cycle, with radio stations in DC, Maryland, Virginia, and West Virginia starting pre-filing announcements in April for their upcoming license renewal applications. The filing cycle will continue state by state until it concludes with television stations in Delaware and Pennsylvania running their last post-filing announcements on June 16, 2015.

However, many stations haven’t had their last license renewal application granted because of indecency complaints still pending against them. The FCC has pretty much ceased processing indecency complaints while it awaits guidance from the courts as to whether it can legally enforce the prohibition on broadcast indecency, and if so, how it will be allowed to do that. I have been told that there are literally hundreds of thousands of indecency complaints now pending at the FCC, so unless the courts do the FCC the favor of finding the prohibition on indecency completely unconstitutional, it will take the FCC years to sift through these complaints in an effort to apply any refined indecency standard announced by the Supreme Court.

It is therefore reasonable to predict that indecency complaints will continue to play a large role in the processing of upcoming license renewal applications. 2011 will hopefully be the year when the courts tell us exactly how large (or small) that role will be. If the prohibition on indecency survives this latest round of judicial scrutiny, broadcasters and the FCC can expect a lot of complaint investigations and litigation as both struggle with where the line on content is being drawn.

Of course there are numerous other events that will contribute to 2011 being one of the busiest years in memory for broadcasters. A rebounding economy is slowly lifting most boats in the broadcast industry, with the obvious exception being those that burned their critical assets for fuel during the lean times, and don’t have much boat left.

With a growing amount of money to fight over, the fights will begin in earnest (see “Retrans” above). Negotiations between the NAB and the recording industry over performance royalties will continue, and “performance tax” legislation will again rise in Congress with the same certainty that the slasher in a horror film returns for unending sequels.

Broadcasters and the FCC will also be implementing the latest generation of the Emergency Alert System in 2011, and the FCC will continue its efforts to repurpose broadcast spectrum for mobile broadband use, leading to new rules permitting multiple broadcasters to share a single channel, and potentially to legislation allowing participating broadcasters to share in the proceeds of broadband spectrum auctions. As with most of the items discussed above, there is both opportunity and peril for broadcasters here, and those that are inattentive risk missing the former and being battered by the latter.

Yes, 2011 will be a very busy year.

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Members of the Communications Industry that don’t keep up with legal and political developments in Washington aren’t in the industry for long. That truism has been particularly apt in the past few months, starting with the President’s October signing of the Twenty-First Century Communications and Video Accessibility Act of 2010 which, among other things, cleared the way for reinstatement of the FCC’s former Video Description rules for television broadcasters, extended closed captioning of video programming to the Internet, and required the FCC to examine methods of increasing the accessibility of emergency information.

Normally, the weeks before a congressional election and the lame duck session afterwards are not a fertile environment for communications legislation, which has a tendency to be controversial because of the stakes involved (can you say “net neutrality”?). However, the Twenty-First Century Communications and Video Accessibility Act, which was spurred to passage by a congressional desire to commemorate the 20th anniversary of the Americans with Disabilities Act, was merely the beginning.

The lame duck session has now generated several more pieces of successful legislation. Last week the President signed the first of these, the Commercial Advertisement Loudness Mitigation Act, which requires television stations to transmit at a consistent volume level (rather than make viewers lunge for their mute button at every commercial break). Congress followed the CALM Act with passage of the Truth in Caller ID Act of 2009, which is now awaiting the President’s signature. This legislation prohibits manipulation of caller ID information with intent to defraud or harm others.

Apparently building steam, Congress proceeded to adopt the Local Community Radio Act of 2010 this past weekend, which reduces the extent of interference protection that full power radio stations will receive from Low Power FM stations, thus clearing the way for many more LPFM stations to be wedged into the FM radio band. This legislation is also now waiting for the President’s signature.

So, is there something in the DC drinking water that has a lame duck Congress suddenly tackling communications issues as though “gridlock” was only a term from morning traffic reports? Maybe. But the truth is more complicated than that. With regard to the CALM Act, controversy about loud television commercials dates back decades. The FCC long ago considered adopting rules to prohibit such “variable volume” broadcasting, but concluded in 1984 that “due to the subjective nature of many of the factors that contribute to loudness, it would be virtually impossible to craft new regulations that would be effective.” However, the transition to digital television has made it far more feasible to craft and enforce objective technical standards for loudness, lessening somewhat broadcasters’ concerns that regulation would lead to free-roaming loudness police second-guessing a station’s engineering practices.

Similarly, the LPFM interference issue has been simmering for a decade, with a succession of bills trying and failing to eliminate the requirement that LPFM stations protect full power stations’ third-adjacent channels from interference. However, what finally put the Local Community Radio Act over the top was a legislative compromise that, among other things, assured full power broadcasters that LPFM will be categorized as a secondary service to full power stations. This means that full power broadcast stations can continue to modify their facilities to improve their audience reach without finding themselves blocked by the interference such a modification might cause local LPFM stations. In light of this and other modifications to the bill, broadcasters were able to offer their support for its adoption, finally breaking the longstanding impasse.

So what’s next? Well, Congress remains keenly interested in communications issues, as evidenced by the lively discussion (and legislative threats) surrounding the FCC’s upcoming net neutrality order. Broadcasters, however, are hoping that this lame duck session concludes quickly, leaving the Performance Rights Act and its goal of requiring broadcasters to pay royalties to the recording industry the subject of continued inter-industry negotiations, rather than the latest statutory mandate emerging from the twilight hours of the 111th Congress.

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Below is the text of our 2011 Broadcasters’ Calendar, which lists deadlines that broadcasters should be aware of for 2011. If you would prefer to read the PDF version of the calendar, it can be found here.

Items of Note in 2011

1. Applications for Renewal of License: June 1, 2011 is the first filing date of the three-year period during which the licensees of all commercial and noncommercial AM, FM and FM Translator stations throughout the United States and its territories will be required to file their applications for renewal of broadcast station license. Licensees in the television services will commence this process in 2012. The date on which a station’s application is due depends on the state or territory of its community of license. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the renewal filing; the filing date itself, which is approximately four months before the date of license expiration; and the dates on which post-filing announcements must air.
2. Biennial Ownership Report Filing Requirements for Commercial Radio and Television Stations: Licensees of commercial, full-power radio and television stations as well as Class A television and low power television stations should be ready to file their biennial ownership reports on FCC Form 323 by the new, uniform filing date of November 1, 2011. While these licensees may have filed a biennial report as recently as the summer of 2010, that report fulfilled the reporting obligation for the period that ended on November 1, 2009. Only because of difficulties with the FCC’s electronic filing system was the November 1, 2009 deadline ultimately extended to July 8, 2010.

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