Tales of the Sausage Factory

Big Low Power FM Win!

Back in 2007, the FCC issued an Order to try to address some of the problems impacting the low-power FM (LPFM) service. You can find out more about how amazing LPFM is, and why Congress needs to pass legislation to remove the artificial restrictions on how many LPFM stations we can have, here on the Prometheus Radio website.

Briefly, LPFMs are very small, very local non-commercial stations that operate at 100-watts or less. The FCC authorized the service in 2000, relaxing the “third adjacent channel” (A radio station must be 3 jumps away from the next radio station) rule to permit several thousand LPFM’s to operate without interfering with full power station. The NAB persuaded Congress to reverse this determination with the ironically named Radio Broadcaster Preservation Act of 2000. That act prohibited the FCC from relaxing or waiving the 3rd adjacent channel spacing requirement.

A few years ago, it became clear that the several hundred LPFMs permitted under the act were in danger of being crowded out by full power stations. Because of what appeared to be an unrelated decision to streamline the process by which full power FM stations can change their market designation. As a result, an LPFM could suddenly find itself impermissibly close to a full power station and need to shut down. Or it might start experiencing interference and get drowned out. The Commission therefore issued an Order and Further Notice of Proposed Rulemaking which provided some relief by making it easier for LPFMs to relocate on the 2nd adjacent channel, thus avoiding Congress’ mandate that the FCC not reduce or waive the separation distance required on the 3rd adjacent channel. This is not nearly as silly as it sounds, as the process involves a fact-based determination on whether there is actually any interference to any full power as a result of the move. Given how interference works, it is very possible to fit a LPFM into space on the 2nd adjacent without causing interference. Spacing is based on averages to make processing applications easier. Actual engineering can determine how to place a low-power tower to avoid interference. Mind, this would be easier to do if Congress hadn’t absolutely prohibited any waiver of 3rd adjacent spacing. But they did. Happily, however, Congress did not prohibit any waiver of 2nd channel adjacent.

The NAB promptly appealed, arguing that the FCC had no authority to alter first,second or third adjacent as a result of the 2000 Act. This, in turn, stalled the conclusion of the Rulemaking, since why finish a rulemaking if you don’t even know whether or not you have authority?

Today, the D.C. Circuit affirmed the FCC’s decision. It rejected the NAB’s argument based on the plain language of the statute and found that the FCC had rationally justified its decision.

This is extremely good news for LPFM, and for those communities lucky enough to have them. As acting Chairman Copps noted in a statement issued today after the ruling, the FCC is now free to move quickly to finish the pending rulemaking. And, of course, Congress should move just as quickly to pass the Local Community Radio Act of 2009, so that hundreds of new communities can enjoy the diverse voices of low-power FM.

My former colleagues at MAP — especially Parul Desai who did the lion’s share of work on this issue — deserve a huge shout out for this win. I should also mention that it was not a Democratic FCC, but Kevin Martin who brought the 2007 Order to a vote — and then voted with the Democrats against both his fellow Republicans to get the needed 3 votes to clear the Commission.

Stay tuned . . . .

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Tales of the Sausage Factory

Adelstein Is Right On FCC Authority to Launch An Investigation Into Arbitron Portable People Meter.

FCC Commissioner Adelstein wrote Chairman Martin a letter yesterday asking Martin to launch a formal inquiry into Arbitron’s use of the new portable people meter (PPM). As I noted back in September when the FCC put the Petition for an inquiry out on Public Notice, this issue means a lot to minority-oriented stations and their audiences, as they believe the PPM undercounts listeners to minority radio programming.

Also as I said back then, I think the FCC has very broad authority to investigate just about anything related to its core mission of, in the words of Section 1 of the Communications Act, “to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications.”

Mind you, having the power to launch an official inquiry does not mean you have the power to actually do anything. The FCC’s mandate is fairly broad, but it has limits. But one of the questions the FCC can ask is: “So, if we discovered something we didn’t like, what could we do about it?” That answer may be nothing more than “tell Congress this sucks,” a conclusion the FCC has reached in the past on occasion when it concluded it could take no action under existing law. But it also allows the FCC to explore other options. For example, the FCC could decide that concerns over the ppm make Arbitron ratings unreliable for certain measurements relating to its rules, like determining whether or not a station is in the “top four” for purposes of permitting a merger. Or the FCC could decide, after seeing lots of opinions and legal research from interested parties pro and con, that the FCC does have authority even if it has never exercised this authority. Adelstein cites 47 U.S.C. 257, which requires the FCC to eliminate market barriers to entry. I think a fairly strong case can be made that regulation of ratings services falls under the FCC’s ancillary authority over broadcasting. That’s a little difficult after American Library Association v. FCC (the broadcast flag case), because a ppm is not a “communication” and ALA held that ancillary jurisdiction must regulate an actual communication or transmission rather than simply have some possible impact on the future of television. OTOH, ratings are so clearly integral to the entire broadcasting industry that the connection with the “statutorily mandated” responsibilities and goals of the Communications Act is very strong.

Neither of these views may bear out on close investigation as authority to act. But again, this is why the FCC conducts inquiries. While it is easy to point to things that might have an impact on broadcasting that clearly lie outside the FCC’s jurisdiction, such as building the Sears Tower in Chicago, and easy to point to things that lie squarely inside the authority of the FCC to regulate (such as media ownership limits), there is also a middle ground of things that are rather murky. In a case such as this, where interested parties have submitted a mess of evidence that raises questions on a matter that potentially impacts millions of people getting access to diverse programming, I think the FCC ought to go ahead and have an inquiry.

Stay tuned . . . .

Posted in General, Tales of the Sausage Factory | Also tagged , , , , | 1 Comment (Comments closed)

Tales of the Sausage Factory

That's It! The 700 MHz Auction Is Ovah ! On to Tasting And Judgment . . . .

At long last, the FCC went three rounds without any new bids and declared Auction 73 (better known as Battle 700 MHz) closed. You can see the final provisional winning bids on the FCC’s Auction 73 page here.

Of course, we are all waiting to see who won what licenses, particularly C Block. But we have some preliminaries to go through first. Most importantly, the FCC has to make a decision on whether to sever the D Block from the Auction so that it can investigate what happened, especially the allegations around Cyren Call and Morgan O’Brien.

Even with the information available, Auction 73 has clearly succeeded on a number of key fronts. Unsurprisingly, I am inclined to credit anonymous bidding with the enormous surge in value for the licenses. Even if incumbents ended up walking away with the lion’s share of the licenses, at least they paid market value for a change (as opposed to the AWs auction, where they picked them up dirt cheap). I also note that at the end of the day, the FCC has only 8 unclaimed licenses (compared with 35 for AWS). As Greg Rose observed previously on his blog, there is good reason to believe we saw a lot of new people bidding.

It remains to be seen, however, whether the auction brought in new competitors or if, as the conventional wisdom predicted, AT&T and Verizon walked off with the big prizes. In particular, we all wait with baited breath on who won C Block.

Finally, two points on D Block. First, even if the experiment failed, that did not make it a dumb move. Babe Ruth used to lead the league in home runs and strike outs, because you can’t hit home runs unless you swing at a lot of pitches. With the FCC trying to satisfy the mandate of Congress to promote a national interoperable public safety network, but with insufficient spectrum allocated and with insufficient funds to build it. So the Commission tried to think outside the box and took a chance. turns out — for reasons still unknown — it did not work out.

Always punish innovators if things don’t go exactly right and you run out of innovators damn quick. Anonymous bidding was also an innovation. So is the open device condition. Before folks rush out to buy stink bombs to lob at Martin and the other Commissioners over D Block, consider if we want the next FCC reduced to such political timidity that we always get the same auction rules again and again and again, because the price of innovating is too high.

Second point: the FCC has a silver lining here. With the auction over, the FCC has fulfilled its statutory obligation to hold an auction commencing by January 28. Not only can the FCC take the time it needs to consider what to do, it can also consider other solutions besides trying to fix up D Block or even auctioning it off the highest bidder. That could include non-exclusive licenses, real time auctions, or even an unlicensed commons — if that would best serve the public interest.

I’m not saying what the best solution for D Block is, because we don’t know enough yet. It will depend on a lot of factors, such as who won the other licenses and how much stomach the FCC has to innovate. But I’m hoping that the FCC and others, when assessing Auction 73, will consider the successes as well as the D Block failure. Otherwise, they will vote to do the politically safest thing. Not a result I’d like to see.

stay tuned . . . .

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Tales of the Sausage Factory

Company Challanges Cell Phone Jammer Ban on Public Safety Grounds

CellAntenna, a company that sells wireless equipment, has decided to challenge the FCC’s ban on cell phone jammers. As some of you may recall, about a year and a half ago the FCC’s Enforcement Bureau issued a public notice that 47 U.S.C. 333 makes it illegal for people to market or use cell phone jammers in this country. (By which I mean active intentional jamming, as the jury is still out on the passive cellphone jamming nano-paint.)

According to the article, CellAntenna has some theory that Section 333 and the FCC’s general authority under the Communications Act are trumped by the Homeland Security Act of 2002. Since cell phones are used by terrorists to trigger bombs, they appear to argue in the article, the public security mandate outweighs Sec. 333 and the FCC’s determination on its general authority over the use of radio spectrum to prohibit cell phone jammers.

I confess that, based solely on the reading from the article, I’m highly skeptical. Why?
See below . . .

Read More »

Posted in Tales of the Sausage Factory | Also tagged , , , , , , | 3 Comments (Comments closed)
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