The ins and outs of the new duopoly rules

Sep 1, 2003 12:00 PM, By Harry Martin

The new multiple ownership rules for radio contain some important regulatory changes that go beyond the Commission’s decision to use Arbitron methodology to define radio markets. Here are some examples:

• JSA AttributionThe FCC has determined that it will now, for the first time, count a brokered station toward the brokering licensee’s permissible ownership totals under the revised local ownership rules. Thus, where a broadcaster owns or has an attributable interest in one or more stations in a local radio market, and has a JSA with another station in the market under which the broadcaster controls more than 15 percent of the brokered station’s advertising time per week, the JSA station will be counted toward the brokering station’s ownership caps. Licensees with in-market JSAs entered into prior to the adoption of the new rules that now exceed ownership limits have two years from the effective date of the rules to terminate the agreements or otherwise come into compliance.
• DeadlinesSome new reporting deadlines apply to JSAs. (1) Parties with existing, attributable JSAs in Arbitron metros under the new rules are required to file a copy of the JSA with the FCC within 60 days of the effective date of the rules. (2) JSAs involving stations located outside of Arbitron metros must be filed within 60 days of the effective date of the decision in the pending rulemaking dealing with market definition in non-rated markets, i.e., late 2004 at the earliest.
• New FormsFCC forms are being modified to require applicants to file attributable JSAs at the time an application is filed, regardless of whether the markets implicated by the application are located in Arbitron metros.
• Noncommercial StationsAnother important change is that the Commission will, for market-size purposes, now count commercial and noncommercial stations in the market. Previously, the Commission ignored noncommercial stations.

Localism promoted

FCC Chairman Michael Powell, at least partly in response to criticism of the new broadcast multiple ownership rules, announced in August that the Commission will pursue the following initiatives to promote localism:

Speeding the activation of low power FM stations

The Chairman stated the FCC would shortly open a settlement window for low power FM applications, during which exclusive applicants could amend to use all available frequencies to resolve conflicts and gain new station licenses. This settlement opportunity could rapidly push the total number of outstanding LPFM authorizations to over one thousand by year end.

A Localism Task Force

This task force will:

1. Conduct studies to rigorously measure localism and how it may be affected by existing FCC rules.
2. Organize a series of public hearings on localism around the country.
3. Advise the Commission on recommendations to Congress relating to the licensing of thousands of additional low power FM radio stations.
4. Make recommendations to the Commission within 12 months on how the Commission can promote localism in television and radio.
5. Advise the Commission on legislative recommendations to Congress that would strengthen localism.

Notice of Inquiry

In September, the staff was to deliver to the Commissioners a proposed Notice of Inquiry (NOI) on localism. The NOI will seek comment on a wide range of FCC rules and procedures aimed at promoting localism.

FCC may relax LPFM third-adjacent protections

An FCC-commissioned study has recommended, based on technical measurements and analyses, that existing third-adjacent channel distance restrictions be waived to allow LPFM stations to operate at locations that meet all other FM requirements. This is good news for LPFM applicants, who are likely to find more nooks and crannies in the spectrum where they can squeeze themselves. It is bad news for full-service stations concerned about the potential impact of third-adjacent interference (although the report’s conclusions may allay those concerns).

In December 2000, the Congress required that the FCC prescribe third-adjacent channel spacing requirements for LPFM stations. As a result, many then-pending LPFM applications were dismissed because they could not satisfy third-adjacent channel interference protection requirements.

At the same time, Congress instructed the Commission to conduct an experimental program to test whether LPFM stations would interfere with existing FM stations if LPFM stations were not subject to third-adjacent channel spacing requirements. The Commission retained the MITRE Corporation to compile and analyze relevant data. The report by MITRE has now been completed and can be accessed on the FCC’s website through the ECFS search page.

Dateline:

Renewal applications are due Oct. 1 for radio stations in Florida, Puerto Rico and the Virgin Islands. Stations in the following locations must file their biennial ownership reports with the FCC, and place their annual EEO reports in their public files and on their websites, by Oct. 1: Florida, Puerto Rico, Virgin Islands, Iowa, Missouri, Alaska, Hawaii, Oregon, Washington, American Samoa, Guam and the Mariana Islands.

Martin is an attorney with Fletcher, Heald & Hildreth, PLC., Arlington, VA. E-mail[email protected].