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• Although the window for filing comments on the Commission’s Notice of Proposed Rule Making (NPRM) regarding the auctioning of broadcast spectrum does not close until January 26, the FCC has opened yet another NPRM seeking comments on how to extract even more money from the broadcast community. This NPRM requests comments on various fee alternatives for the use of excess digital capacity by DTV broadcasters. Such fees would apply to the extra services that the new DTV stations will be allowed to offer using their "extra" digital channels. However, the Telecommunications Act of 1996 prevents the collection of fees on services that are supported by commercial advertising—thus the new fees would only apply to subscriber based "ancillary or supplementary uses" of the DTV spectrum. The official news release announcing the NPRM proclaims, "As required by Congress, these fees would ‘recover for the public a portion of the value of the public spectrum,’ ‘avoid unjust enrichment’ of broadcast licensees using the DTV spectrum for fee-based services, and recover for the public an amount that, to the extent feasible, equals but does not exceed the amount that would have been recovered had such service been licensed pursuant to an auction." In addition to seeking comments on the methods for assessing such fees and the appropriate rates and methods for making "periodic adjustments" of such fees, the Commission is also seeking comment on whether public television stations that offer such services should pay the same fees as their commercial counterparts.
• Late last year the Commission issued a Public Notice announcing that nonprofit licensees were being required to file a one-time documentation of their nonprofit status. This was quickly followed by a second notice canceling the requirements of the first notice but indicating that a third notice would soon be issued detailing the revised requirements. If you were able to follow all that, you may be able to understand the latest Public Notice, which was issued January 14, announcing the revised requirements—you may, but we would hate to guarantee it! The notice states, "All nonprofit entities must submit documentation attesting to their nonprofit status by March 2, 1998. After this date, newly licensed or operating nonprofit entities must submit documentation of their exempt status within 60 days of receipt of license, authorization, permit, or of commencing operations. For-profit purchasers or assignees of stations or facilities previously owned by nonprofit entities must also notify the Commission of the reassignment within 60 days of the purchase or reassignment." The notice goes on to detail exactly what will be required to establish nonprofit status. It then lists groups of licensees which are exempt from the filing requirement. Included in this list are "Federal, State, and Local Government entities" and "Permittees or licensees of noncommercial educational radio and television stations." There is also an Attachment including who must file and their respective filing requirements. Included in this list are "Nonprofit licensees of translators, boosters, low power television stations & auxiliaries" and "Nonprofit commercial radio and television station licensees." The notice indicates you may direct questions to the Commission’s Fees Hotline at (202) 418-0220 for voice callers or e-mail users can direct questions to mcontee@fcc.gov. If you are part of a nonprofit licensee, we would strongly encourage you to contact your communications attorney to be certain you are in compliance with these new requirements.
• As required by the Balanced Budget Act of 1997, the Commission has reallocated television Channels 60-69. A full 24 MHz, 764-776 MHz and 794-806 MHz, has been allocated to the fixed and mobile services for public safety use, making this the single largest allocation to public safety services in history. The move more than doubles the total spectrum available to public safety agencies. The remaining 36 MHz, 746-764 MHz and 776-794 MHz, were allocated to the fixed, mobile, and broadcasting services. By now it should come as no surprise that licenses in this spectrum will be assigned by competitive bidding. The official announcement included the following statement, "All full service television broadcast stations will be protected against interference during the DTV transition period, which is targeted for completion at the end of the year 2006." Rules for the use of the new spectrum will be developed in later proposals. These subsequent proceedings will also address the requirements for protecting existing analog TV and future DTV stations from interference.

• Commissioner Susan Ness has issued a statement regarding the NPRM on the assessment of fees for subscription based "ancillary and supplementary services" that DTV stations will be permitted to supply. In her statement, Commissioner Ness addressed the business needs of DTV broadcasters—"As television broadcasters design their business plans for conversion from analog to digital, they need to know how fees will be assessed if they choose to devote the unused portion of digital capacity to pay services or to derive revenues from other-than-advertising-supported free broadcasting. The amount of such fees will have a bearing on how they use their DTV channel." She also addressed the issue of subscriber-based, as opposed to free over-the-air, programming—"Congress has also made it clear that broadcasters who wish to use a portion of the digital capacity for other revenue-enhancing services must compensate the American public for such use of that portion of the spectrum. The spectrum allocation for DTV extends the public trust that was established with broadcast licensees 70 years ago and ensures that a free, over-the-air television service will be available to all Americans in the 21^st century." "There are many methods for assessing such fees and our Notice today is designed to spur comment on these. Whichever method we ultimately adopt must be simple to apply and simple to enforce. (emphasis in the original) Broadcasters should not need to hire a battery of economists to comply with their obligations." "As a final note, Congress has made it abundantly clear that it fully expects broadcasters to focus their digital capacity on providing their local communities with a wealth of free broadcast programming, including programming transmitted in high definition. While the opportunity to provide many new and exciting services is available through the flexibility of the digital standard, I do not anticipate broadcasters will abandon their birthright of top quality free video broadcasting."
• Chairman William Kennard issued a statement regarding the reallocation of TV Channels 60-69. With respect to the commercial portion of the spectrum, Chairman Kennard said, "Today’s action will also promote competition by allocating 36 megahertz to be made available through competitive bidding for new cellular telephone, landmobile, wireless local telephone, wireless cable, video, multimedia or industrial communication services, to name just a few possibilities." "I particularly welcome new ideas from new entrepreneurs to take advantage of the competitive opportunities this reallocated spectrum provides." "In addition, while recovery of unused spectrum is an integral part of the FCC plan for transition from analog to digital television, I am sensitive to the effects of spectrum recovery on Low Power TV and TV translators who operate on channels 60-69. We will allow these licensees to continue their services until the end of the DTV transition period as long as they do not cause harmful interference to primary services. This will be particularly important in rural communities. I am hopeful that many of these low power and translator licensees will be able to continue operations on a new channel below channel 60."

• The Office of Engineering and Technology (OET) continues to bring out supplements to OET Bulletin No. 65. Last August, the OET issued a revised Bulletin No. 65 along with the first supplement, Supplement A, for radio and television broadcasters. In November, the Office issued a Supplement B to provide more specific compliance information for the amateur radio community. Then at the end of 1997, the latest addition was released—Supplement C. This publication is designed to provide further information for those seeking FCC equipment authorization of mobile and portable devices. The supplement contains guidance in evaluating such equipment for compliance with the new RF radiation standards. As was the case with the previous releases, copies of the new supplement can be obtained from the OET portion of the FCC Web site (www.fcc.gov) or through the usual government duplicating services.
• The Office of General Counsel and the Mass Media Bureau have begun their portion of the first biennial review of the Commissions regulations. The Telecommunications Act of 1996 only requires the Commission to review the rules applicable to telecommunications service providers and the broadcast ownership rules as part of the biennial review. However, the Commission has decided to make a top-to-bottom review of all its regulations. The first meeting dealing with the Mass Media rules was scheduled for the afternoon of January 13. The announcement of the public forum indicated the session was to focus on the following three topics: "(1) streamlining of application forms and processes; (2) deregulation or streamlining of substantive non-technical rules, including ownership rules not subject to a pending proceeding; and (3) deregulation or streamlining of substantive technical rules."
• A meeting has also been announced for the Emergency Alert System National Advisory Committee. The group is scheduled to meet on the morning of January 27 at the National Association of Broadcasters in Washington, DC. Presentations from the National Weather Service and the Federal Emergency Management Agency have been scheduled. Updates will be given on state and local EAS plans, and future EAS requirements and National Advisory Committee recommendations to the FCC will be discussed. For more information contact Bonnie Gay by telephone at 202-418-1228.
• Although the Commission will not be opening any new filing windows until after the auction rules are completed, they are continuing to make additions to the FM Table of Allotments. Petitions to further amend the Table are also being accepted. Some of the recent additions are tabulated below. We want to make our newsletter useful and helpful to our clients. But frankly, we’re not quite sure yet how to handle these future windows. What would be helpful to you? We would welcome feedback regarding what you would like to see in future newsletters.

• Although the details of how new broadcast station licenses will be obtained in the future seems to be anything but certain at the moment, we can be certain of the number of existing stations. The latest figures released by the FCC show that as of November 30, there were 12,227 full service radio stations (AM, FM, and NCE); 1,563 full service television stations (VHF and UHF, commercial and non-commercial); 7,844 translators and boosters (FM and TV); and 2,031 LPTV facilities. It appears a lot of us have found that once broadcasting gets "in your blood," it’s almost impossible to remove it!
• For over 70 years broadcasters have been providing listeners and viewers news, information, and entertainment without cost. Many broadcasters found they could sell commercials to other businesses and retailers to defray the costs of their broadcast operation and produce a profit for the station’s management and ownership. True, we often sputter about "all those commercials," but in a sense they have been a service, too. After all, that’s how many of us learn about new products or where the sales are! Other broadcasters have chosen to operate using a non-commercial format. Many of these operations have asked their listeners and viewers for financial support, but that support has always been voluntary. And regardless of whether the broadcaster chose to operate as a commercial or a non-commercial station, the licensee has always been regarded as a trustee of a public resource. Now it seems our government, and perhaps Congress in particular, has determined that commercial broadcasters have somehow violated that trust simply by making a profit. As a result these officials believe that broadcasters should now bid at auction for their licenses while still providing free over-the-air broadcasts. This is supposed to "pay" the public for their spectrum. Such "payment" will no doubt take the form of more commercials and higher advertising rates than before. Will this really serve the public interest, or is this just another form of taxation? Is the broadcast spectrum still a public resource or has it now been converted to a Congressional resource?