The FCC last week released its tentative agenda for its April 23 open meeting. For broadcasters, that meeting will include consideration of the adoption of a Notice of Proposed Rulemaking (draft NPRM here) looking to broaden obligations for the audio description of television programming (referred to as the Video Description proceeding) – which we will write about in more detail later. The agenda also includes a Report and Order modifying rules relating to Low Power FM stations, which also addresses the protection of TV channel 6 stations by FM stations (full-power or LPFM) operating in the portion of the FM band reserved for use by noncommercial stations. The FCC’s draft order in this proceeding is here. We initially wrote here about these FCC’s proposals when the Notice of Proposed Rulemaking in the proceeding was adopted last year. Today, we will look at how the FCC has tentatively decided to resolve some of the issues.
One of the most controversial issues was the proposal to allow LPFM stations to operate with a directional antenna. While some directional operations had been approved by waiver in the past, there was some fear that allowing these antennas more broadly could create the potential for more interference to full-power stations. As a directional antenna requires greater care in installation and maintenance to ensure that it works as designed, some feared that LPFM operators, usually community groups often without a broadcast background or substantial resources, would not be able to properly operate such facilities. The FCC has tentatively decided to allow use of directional antenna by LPFM stations. However, it will require LPFM stations installing such antennas to conduct proof of performance measurements to assure that the antenna is operating as designed. The cost of such antennas, the limited situations in which such antennas will be needed (principally when protecting translators and in border areas), and the additional cost of the proof of performance should, in the FCC’s opinion, help to limit their use to entities that can afford to maintain them properly.
Also, the FCC has tentatively decided to allow LPFM stations to operate FM boosters. As with any other FM station, the booster cannot extend the signal of the primary LPFM station. Boosters will be helpful principally in areas with irregular terrain that shields part of an LPFM’s service area from receiving the main station’s signal. As these stations operate on the same channel as the LPFM itself, if not properly shielded, they can create interference to the primary station. The FCC will allow any LPFM station to operate up to two boosters (or two translators) or one translator and one booster.
The definition of a minor change in the transmission facilities of an LPFM would be broadened if the FCC adopts the draft Order. Instead of limiting a minor change to moves of 5.6 kilometers, the FCC is now doubling that limitation – allowing moves of up to 11.2 kilometers or to any location where the present and proposed 60 dBu contour of the LPFM station would overlap. This change is important to LPFM advocates as it significantly increases the area in which a station can be moved without waiting for the infrequent filing windows for new stations and major changes. Minor changes can be filed at any time.
The FCC declined to allow LPFMs to increase maximum power from 100 to 250 watts. The FCC has previously rejected similar proposals and decided that there was no reason to change that decision now. The FCC felt that there would be too many potential interference issues, including issues that have already been raised by some full-power stations about LPFMs in “foothills” areas – where their height above average terrain is low and can put a vast signal over a metropolitan area. That can occur if the LPFM is in an area that is high relative to the metropolitan area in one direction, but the height of the proposed antenna above average terrain is lowered because there are mountains behind the transmitter site, thus lowering the average terrain height (which is computed on the average of the heights along 12 radials extending from the proposed transmitter site). A higher antenna can dramatically increase coverage over the lower metropolitan area far beyond what the FCC predicted when it adopted the required mileage separation requirements that apply to LPFM stations.
The one issue in the order with ramifications beyond LPFMs is the decision not to decide to lift all restrictions on the location of FM stations – full-power or low power – operating in the reserved portion of the FM band from locating too close to Channel 6 TV (or LPTV) stations. Prior to the digital television transition, as the FM band is adjacent to Channel 6 and the analog TV transmission system involved FM-like transmission of audio signals, there was the potential for interference between analog FM stations operating low on the FM band and analog TV stations on Channel 6. While the conversion to digital television has removed many of these issues, some TV operators argued that the potential for interference to digital signals has not been fully analyzed. They also pointed to the fact that certain LPTV stations may still be operating in analog until July 2021. Thus, the FCC declined to abolish the interference protections entirely at this point in time. However, the FCC will permit noncommercial operators in the reserved band (full power or LPFM) to seek a waiver of Channel 6 protection requirements if they can show that the proposed operations would not create interference to any nearby Channel 6 TV station. That showing would be made using the FM translator criteria in Section 74.1205(c) which establishes an interfering contour for the FM station depending on the frequency on which it operates and a protected Grade B contour for the Channel 6 TV station. Where those contours don’t overlap, an FM in the reserved band can be located.
The FCC proposes to make other changes regarding LPFM operations in this Order – so review the order to see how they may affect your operations and watch for action at the April 23 meeting to see if these draft rule changes are adopted.
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In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus. The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago. The FCC has provided relief on TV newsgathering and news sharing arrangements, issued a determination that no charge spots unrelated to an existing advertising schedule do not affect lowest unit rates, granted liberal extensions to stations in Phase 9 of the TV repacking, deferred the filing of Quarterly Issues Programs Lists and the Annual Children’s Television Reports to July 10, and recognized that college-owned stations that are silent when students are no longer on campus do not need an STA to remain silent. In a webinar I conducted for a number of state broadcast associations last Thursday, I summarized these developments and talked about other FCC rules and policies that broadcasters need to continue to observe during the current crisis. That webinar is available on the website of the Indiana Broadcasters Association which hosted the session and can be viewed here.
On Friday, the FCC added to the actions that it has taken to assist broadcasters – issuing a Public Notice adopting a policy that, through June 30, commercial advertisers can donate ad time to government agencies or charities to run PSAs dealing with issues relating to COVID-19 without the station having to identify the companies donating the spots as sponsors of the PSA. Even though the commercial sponsors paid for the time, they don’t need to associate themselves with the virus spots. This was at the request of the Ad Council, which suggested that some advertisers had ad time that they no longer needed but were reluctant to donate it to COVID PSAs as they feared that, if they were identified as sponsors, their businesses would somehow be associated with the virus. While it may be the unusual situation where an advertiser cancels its ad schedule and is willing to donate the advertising time for charitable uses without acknowledgement, in some cases it may give broadcasters one more way to try to convince advertisers not to totally cancel their schedules. And it shows that the FCC is continuing to do its best to assist advertisers in this trying time. Watch for more developments in the coming weeks.
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Many stations seem unsure of how to apply the recent FCC guidance that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not otherwise considered bonus spots. We wrote about that guidance last week when it was first released by the FCC, here. Because this issue can get complicated quickly, we recommend that individual stations talk to their counsel about any specific application of the FCC’s Public Notice to their situation. However, as we were involved in seeking the guidance from the FCC, what follows are some general thoughts as to issues that stations should keep in mind in applying the FCC’s decision.
To be exempt from Lowest Unit Charge calculations, any no-charge spots should not be added to any existing advertising package, nor should they be used as a direct incentive to buy a new package, e.g., no promises should be made to give 20 no-charge spots to an advertiser if they buy a paid schedule of 20 spots. The whole idea is that these spots are gifts to the advertiser to help them through the crisis, separate and apart from any commercial advertising transaction – while at the same time building goodwill for the station and helping the station fill holes in their inventory that have resulted from cancelled advertising. These gifts should be viewed as a temporary measure to get through the crisis. Because these no-charge spots cannot be tied to paid packages, stations should be careful on how they promote them to advertisers. Here are some ideas:
This is a unique solution for a unique time, but one that some stations may be able to employ as a win-win for both the stations and their communities. Talk to your counsel for more details on how to employ this kind of program without running afoul of the FCC guidance.
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The FCC on Friday released a Public Notice announcing that they are giving stations more time in which to upload their Quarterly Issues Programs lists to their online public file and to file their first Annual Children’s Television Report. In our list of April regulatory dates for broadcasters last week, we had highlighted both of those filings. Because of the disruption of the schedules of so many people, and the lack of access to many broadcast stations, the FCC appears to have decided that broadcasters should get more time to meet these regulatory obligations.
Quarterly Issues Programs lists are required to be uploaded to the online public inspection file of all full-power stations every quarter – and would normally be required to be in the public file by April 10. While urging stations to upload those lists as soon as possible, the Commission has given stations until July 10 (when the next quarter’s lists will be due) to upload this quarter’s report. So the two reports could be uploaded at the same time.
The first-ever Annual Children’s Television Report was to be filed with the FCC by March 30, reporting on educational and informational programming directed to children since the effective date of the new children’s television rules (see our blog article here about the revised rules). The report would normally be due in January, but was delayed until March 30 to give broadcasters time to become familiar with the new forms (see our article here). Now, those reports must be filed by July 10, 2020.
In the Public Notice, the FCC notes that other public file and FCC filing obligations remain in place. For instance, the FCC has not extended the date for filing license renewal applications by radio stations in Tennessee, Kentucky and Indiana, due on April 1. The Commission has expressed its willingness to be lenient in granting extensions of these filings and others upon request, but the deadlines remain unless specifically extended. Similarly, other public file obligations (including the requirement to upload information about political ad sales and other candidate uses) remain in effect.
The two extensions granted on Friday are additional indications that the FCC recognizes the disruption caused by the COVID-19 pandemic. These follow other actions we’ve written about, including relief for stations in Phase 9 of the television repacking, guidance on the impact of special flights of free advertising spots on lowest unit rates, and relief for newsgathering activities exempting temporary pooling arrangements from public file requirements under shared services agreement rules and liberalized waivers of attribution rules for TV news sharing agreements that exceed 15% of a station’s programming time. The FCC is doing its best to assist broadcasters in coping with the sudden realities of today’s business in these most unusual times.
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Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis. The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules. Broadcasters who we represented requested that they be permitted to schedule no-charge advertising for some of their clients where those spots were not part of negotiated advertising packages, without those spots affecting lowest unit charges in the political windows (likely to be opening in many states in the coming weeks). The FCC agreed that free spots provided to merchants that are not part of an existing commercial contract or otherwise are not provided as a bonus tied to any contract would not affect lowest unit rates. This is a limited ruling for broadcasters to use to build up good will with advertisers, and to provide them with assistance in this time of crisis. It is a limited, nuanced ruling that you should discuss with your counsel – but it does provide broadcasters with the opportunity to be creative in helping support their advertisers in this most unusual time.
In addition to the lowest unit rate issue, the FCC issued another public notice about TV Local Marketing Agreements and similar agreements. In TV (as in radio), if one broadcaster programs more than 15% of the programming time of another station in their market, the station to which they provide programming becomes “attributable” for multiple ownership purposes, i.e., it counts in determining compliance with the ownership rules. In markets where one owner cannot own an additional station, news-sharing agreements where one station provides news to another are permissible, as long as those agreements do not constitute more than 15% of the programming time of the second station. The notice released yesterday indicated that, if the brokering station wants to expand news coverage on the brokered station during this crisis time, the FCC will be liberal in granting waivers to permit the agreement to exceed 15% of the airtime of the brokered station – though prior FCC approval is required. The waiver will be limited to the period of time that the COVID-19 outbreak remains a national emergency. The public notice provides email addresses to which such requests should be sent. These two decisions provide more evidence of the welcome flexibility and relief that the FCC is providing broadcasters in helping to deal with this current crisis.
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An auction of new FM channels was scheduled to begin in late April (see our posts here and here). Yesterday, the FCC issued a Public Notice indefinitely delaying that auction. Apparently, the FCC needs to have staff physically present in its Washington, DC building in order to conduct an auction, and with the current teleworking situation, the auction processes cannot function. With other wireless auctions scheduled for the latter half of the year, there was apparently no way to find time this year to conduct the auction. Thus, the auction is postponed indefinitely. Seemingly concluding that it was unfair to hold onto the upfront auction payments for an indeterminate time, the FCC agreed to refund those upfront payments – and the Public Notice provides instructions for securing such a refund. As business conditions may well have changed significantly whenever the auction is rescheduled, the FCC decided to return all of the “short-form” applications that were filed and to lift all restrictions on “prohibited communications” between competing applicants. Thus, the auction will start anew, with new applicants, at some later date, likely in 2021.
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FCC business marches on in this time of social distancing and mandatory lockdowns, though with modifications caused by the circumstances in which we find ourselves. The FCC released a Public Notice yesterday announcing that its monthly open meeting scheduled for March 31 will be held by teleconference rather than live in the FCC meeting room. It can be viewed on the FCC’s website and on its YouTube channel. Most of the action items will have already been voted on by the Commissioners through the “circulation” process. This means that the votes will be taken on the written orders without any formal presentations by FCC staff members explaining the actions, and without orally-delivered statements by any of the Commissioners – though the Commissioners can certainly make their feelings known in written statements on the items on which they will have voted. The meeting itself is likely to consist of Commission announcements and statements by the Commissioners on the current state of affairs.
Issues that were to be considered at the meeting of interest to broadcasters include the adoption of a Notice of Proposed Rulemaking on Distributed Transmission System technology for TV stations – making it easier for TV stations to fill in their market coverage with multiple transmitters spread throughout the market, rather than a single big transmitter in the center of the market – a technology made easier as stations transition to the new ATSC 3.0 transmission system (see the draft NPRM here). FCC Notices of Proposed Rulemaking on significantly viewed TV stations (draft NPRM here) and cable carriage disputes (draft Further Notice of Proposed Rulemaking here) are also on the agenda.
Speaking of Commission meetings, it appears that Commissioner O’Rielly will continue to be a fixture of these meetings in the future. Last week, it was announced that the President had nominated the Commissioner to serve another term on the FCC. Of course, that nomination needs to be approved by the Senate when they have a moment’s break from considering coronavirus relief packages. Commissioner O’Rielly has taken the lead on several broadcast initiatives, notably including crackdowns on pirate radio (see our articles here and here) and on the revision of the children’s television rules (see our articles here and here). Look for this familiar face to remain at the FCC for the foreseeable future.
Watch for more from the FCC on these matters in coming days as it continues to function in these trying times.
Courtesy Broadcast Law Blog