Franken FM Stations

Nov 1, 2014 9:00 AM, By Lee Petro

Earlier, we discussed the petition for rulemaking filed by SSR Communications, Inc., to create a new Class C4 radio service. Recently, the FCC issued a notice of proposed rulemaking that would address another new class of radio service. Instead of permitting radio licensees to change classes of service though, the FCC is considering permitting low-power television broadcasters to provide audio service.

These �Franken� radio stations have been providing audio signals on 87.7 and 87.9 MHz while providing analog television signals for several years. However, with the transition to digital television service, the ability of LPTV stations to continue to provide an analog signal is in jeopardy. The FCC had set a September 2015 deadline for LPTV stations to convert to digital operations and it was not clear how the FCC would address analog radio operations in a post-analog world.

So, in the context of addressing the final rules for the conversion of LPTV stations to digital service in the wake of the incentive auction involving the television spectrum, the FCC sought comment on whether it should adopt formal rules to permit such operations in a post-analog world. In proposing the rules, the FCC made clear that it would likely adopt rules that required digital LPTV stations to provide at least one free, over-the-air digital television signal regardless of whether the station also provided analog radio service.

In addition to establishing a threshold obligation for digital LPTV stations to continue to provide a free-over-the-air television signal, the FCC is considering the adoption of rules that would protect existing FM radio services. Specifically, the FCC sought comment on rules that would require LPTV stations that provide radio service to provide interference protection to the 60 dBu contour of noncommercial educational FM stations operating on the low channels of the FM band. In addition, the FCC sought comment on the adoption of rules that would require termination of the audio service in response to interference complaints, much like the rules currently applicable to FM translators and LPFM radio stations.

The FCC also tentatively concluded that these radio services would be subject to the same ancillary fee obligations that exist for digital television services that provide data or other subscription services. Specifically, Congress adopted statutory obligations for televisions stations to pay 5 percent of the gross revenues earned by digital television stations providing for-profit services on their digital streams. The FCC is seeking comment on whether the same obligation should be imposed on digital LPTV stations that use a portion of their digital stream to provide analog radio service. The FCC seeks information regarding the sources of revenue from the current operators, and whether it should require LPTV licensees to pay an ancillary fee on revenue that earned from providing this service.

Perhaps the most controversial proposal in authorizing the analog service will be the possibility of requiring these radio services to comply with all other rules associated with full-power FM radio services. The FCC is considering rules that would require the submission of construction permit applications prior to the commencement of service. In addition, the FCC may require these operators to maintain a main studio, retain a public inspection file, and coordinate their service in border areas with Canada and Mexico.

While the incentive auction will likely cause some LPTV stations to cease operations due to the repacking of full-power TV stations into the smaller TV spectrum band, it is likely some LPTV stations will provide audio services if the FCC authorizes the service.

Comments on the new service will be due 30 days after the NPRM is published in the Federal Register.

FCC Dateline

FCC Deadlines:

December 1, 2014 � Annual EEO Public File Reports placed in station”s public file in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont.

December 1, 2014 � Biennial Ownership Reports for Noncommercial stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota must be filed with FCC and placed in public inspection file.

Petro is of counsel at Drinker Biddle & Reath, LLP. Email: [email protected].