© 2001 – Munn-Reese, Inc. – Unauthorized Reproduction is Prohibited
News from the Offices of
Munn-Reese, Inc.
Broadcast Engineering Consultants
100 Airport Drive – PO Box 220
Coldwater, MI 49036-0220
Wayne S. Reese, President
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Telephone: 517-278-7339 |
Internet: www.munn-reese.com |
Fax: 517-278-6973 |
October 2001
Munn-Reese Matters
By now, you’ve probably figured out that we’ve given up on getting our wacky editor, Thumbs Feebleman, to keep a schedule. However, we have finally persuaded him that he should produce another "dead tree" edition of the newsletter. Of course, we will also be emailing the same text to those on our electronic distribution list, as well as posting it on our web site. We have considered distributing the email version as a file attachment in "PDF" format. PDF stands for "portable document format," and the files can be read and/or printed with the free Acrobat Reader program available from www.adobe.com. Versions of the program are available for PCs, Macs, and Palm OS devices. We would appreciate feedback about your newsletter preferences. All of the information is in the current text version, but it does not allow us to include any of the formatting contained in the paper version. Recipients would be able to printout the PDF file attachment and have a paper copy just like the one that is sent in the mail. Is this important to you? Or do you have trouble receiving file attachments? Your email response to thumbs@munn-reese.com will help us know what you think.
We have begun using our email list to distribute late breaking FCC news. We have recently emailed information on three different occasions that we believed would be important to many of our clients. So far, these have simply taken the form of the actual FCC releases as a PDF file attachment. Your responses have been encouraging. If you did not receive these, it probably means we do not have a working email address for you. We promise not to sell or publish your email address—we get "junque" email, too! We hope to continue moving toward email distribution of material and thus do our part to help save the forests—not to mention costs. Be sure you remember to update us when you change your email address. You can send your email information to Thumbs or ET—or you can simply pick up the phone and call us, too.
Deadline Matters
In the wake of the September 11 attacks on New York City and Washington, DC, the FCC issued a Public Notice (DA 01-2183) giving permission for broadcast stations to suspend routine weekly and monthly Emergency Alert System (EAS) tests. The notice from the Enforcement Bureau came at the request of the Federal Emergency Management Agency (FEMA). FEMA believed the regular tests might be confusing or induce unnecessary fear for the public. The authority to suspend the tests ran through October 2, 2001. However, the FCC said it would issue an additional public notice if an extension was required. As of this writing, no such announcement has been made. There was some initial confusion over the suspension. Some clients reported seeing such an announcement on the FEMA web site but then were unable to find it when trying to confirm the web address for us. The language of the FCC Public Notice was permissive rather than mandatory, and the Commission did indicate that all other EAS rules would be enforced during the suspension.
The FCC Mass Media Bureau has announced another settlement window. Remember how the Commission determined that the commercial/non-commercial status of a channel was going to determine if mutually exclusive applicants went to an auction? National Public Radio (NPR) led a court fight against the FCC, and on July 3, the United States Court of Appeals ruled in favor of NPR. As a result, that portion of the Noncommercial Report and Order was set aside. This left the FCC without a way to resolve groups containing both commercial and non-commercial applicants. In keeping with its "marketplace" philosophy, the Commission announced a window during which certain existing applicants may propose universal settlements. The provisions of §73.3525(a)(3) that prohibit reimbursement above "reasonable and prudent" expenses are being waived. The Public Notice lists the eligible applicants in an attachment. The window ends on November 30, 2001. Each group on the list contains at least one non-commercial applicant. The list contains: 186 FM applications in 31 groups, 8 FM Translator applications in 4 groups, 8 AM applications in 2 groups, and 13 NTSC TV applications in 3 groups. All groups are "closed"—meaning no new applications will be accepted.
The same NPR led court decision has also postponed the deadlines for Auction No. 37. This auction, which seems to be habitually postponed, was to have allowed applicants—commercial and non-commercial—to bid on vacant, new commercial FM allotments. Since the FCC cannot prevent non-commercial entities from also applying for these channels, the Commission elected to postpone the auction (which was to have started on December 5th this time) while it "formulates its response to the NPR decision." No new date has been announced although the Commission says further information, including a revised auction schedule, will be provided in future notices. However, Thumbs advises you not to hold your breath while you’re waiting!
The process of filing Biennial Ownership Reports continues. Reports were due October 1 for radio and television stations in the following states: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, and Washington, as well as the Commonwealth of Puerto Rico, and the Territories of Guam, Saipan, Samoa, and the Virgin Islands. Form 323 should be used for commercial stations, and non-commercial stations should use Form 323-E. Use the September 2000 edition of both forms. Filings can be made using paper forms, but the Commission encourages licensees to use the online filing services of the Consolidated Database System (CDBS), which is available on the Mass Media Bureau web page: www.fcc.gov/mmb. There was a previous deadline for some states on August 1. Others will follow in two month intervals.
The Attack on America that occurred September 11 had an effect on the FCC and some filing deadlines. The immediate and obvious effect was an early closing of the FCC on the day of the attack. This, of course, made it impossible for people to file paper documents with the Commission. On September 12, the FCC announced that it would accept all filings, paper or electronic, that had been due on the 11th on the 12th instead. It also announced that the 11th would not be counted in computing filing periods of less than 7 days. In addition, the Commission extended the deadline for filing regulatory fees by three days—from September 21 to September 26. The Public Notice announcing the delay cited the disruption of mail and air courier service that occurred throughout the United States during the week of the attack.
Procedural Matters
The FCC has adopted a Report and Order (FCC 01-246) that modifies the FCC rules to require all entities doing business with the Commission to obtain an FCC Registration Number (FRN). Beginning December 3, any filing that would require a taxpayer identification number (TIN) must now also include an FRN. The new number will be unique to each entity doing business with the Commission. The numbers can be obtained online from the Commission Registration System (CORES) located at www.fcc.gov/omd. Between all the acronyms and the numbers, Thumbs wonders if any one will ever know what is happening! If your communications attorney pays fees for you and then bills you later, those submissions will have to contain an FRN for the attorney and one for you. The News Release announcing the change says, "The FRN will help the Commission more effectively collect regulatory and application fees; track enforcement of fines and forfeitures; monitor and collect penalties; and manage the grant of waivers and exemptions."
The Commission has released an Order on Reconsideration of the Third Report and Order (FCC 01-258). In it, the Commission generally affirmed its rules regarding voluntary band clearing agreements for the upper 700 MHz band, which is now occupied by Broadcast Channels 60-69 but will ultimately be occupied by commercial and public safety wireless services. The need for these agreements arose when Congress ordered the Commission to auction the spectrum for new services before the present TV broadcasters are required to leave. In the reconsideration, the Commission granted some additional flexibility to TV licensees who agree to be displaced by such agreements. Present licensees with one channel in the upper 700 MHz band and the other in the core spectrum will be able to give up their high channel while retaining all the rights of single channel stations for their lower channel. Such single channel stations may continue transmitting in analog format until December 31, 2005—or longer, if less than 70% of the TV households in their market are capable of receiving DTV signals. Stations cannot be forced from the upper 700MHz band before December 31, 2006, but voluntary agreements may provide financial incentives to leave before the deadline. Commissioner Kathleen Abernathy issued a statement supporting the additional flexibility and detailing the reasons why she believes such agreements are in the public interest.
As part of the June 2000 Biennial Review on broadcast ownership, the Commission pledged to review the broadcast-newspaper cross-ownership rules. The FCC has now released a Notice of Proposed Rulemaking (NPRM) (FCC 01-262) that seeks wide ranging data on the topic. The Commission notes that the rule was written 25 years ago, and significant changes have taken place in local media since that time. The NPRM also notes that data can be gathered from the existing cases of cross-ownership. Forty broadcast-newspaper combinations were "grandfathered" under the rule, and four more combinations have been granted permanent waivers of the rule since 1975. Among other things, the NPRM asks for comments on whether the rule is still necessary, or whether it should be modified—or even eliminated. Other topics for which comments are sought include: the impact of new media outlets such as the Internet, the connections between diversity in ownership and diversity in viewpoint, whether some measure of market concentration or some sort of "voice count" is needed, etc. Comments are due December 3, 2001, and reply comments are due January 7, 2002. The document was adopted by a unanimous vote. Commissioner Michael Copps issued a separate statement urging participation in the proceeding. In part, his statement said, "I hope no stakeholders will say, ‘Let somebody else respond to this notice, I’m too busy with other things.’ Everyone is going to be living with the consequences of this rule-making exercise, probably for a long time, and I’ve always believed in the old adage that ‘decisions made without you are decisions against you.’"
The two companies that have been authorized to offer Satellite Digital Audio Radio Service (SDARS)—XM Radio Inc. and Sirius Satellite Radio, Inc.—have requested STAs for their complimentary terrestrial repeater systems. The systems are needed to provide fill-in coverage where satellite service may be blocked or subject to multipath interference. The Commission is working on a rulemaking to cover these systems, but the procedure has not yet been finalized. The two companies are ready to activate their systems and requested the STAs to allow them to begin service. The FCC requested public comment on the STA requests and received comments from twelve parties, including the National Association of Broadcasters (NAB). In the end, the requests are being granted, but they have a full page of conditions attached to them. The STAs will expire on March 18, 2002 or whenever the permanent rules become effective, whichever occurs first.
Non-commercial licensees may want to download a copy of the Memorandum Opinion and Order (DA 01-2178) sent to an Alabama FM station. The order deals with the thin line between acceptable and unacceptable underwriting announcements. The MO&O states the usual principle that while non-commercial stations may identify underwriters, these announcements "should not promote the contributors’ products, services, or business." It then goes on to explain that "references that distinguish the underwriter from its competitors are prohibited." Several other guidelines are offered, along with examples of the announcements that got the station into trouble. The recipient of the MO&O avoided a monetary forfeiture because they were inexperienced with underwriting announcements, willing to work with the Commission, and had already set up procedures to avoid future violations. Non-commercial managers may want to enlist the help of their station’s communications attorney to assure compliance with the Commission’s standards.
Commissioner Matters
After achieving a full Commission with five members, the FCC is now back to four members. Commissioner Gloria Tristani left FCC service on September 7. Commissioner Tristani was appointed to the FCC by President Clinton, and she took office in November of 1997. The news release announcing her departure quoted Ms. Tristani as saying, "After nearly four years … I believe it is time for me to move on. I plan to return to New Mexico in the near future."
Commissioner Tristani began her official Departure Statement with the following paragraph. "During the last four years it has been a privilege to serve as a member of the FCC, responsible for implementing the statute that governs the nation’s communications industry. I am grateful for the opportunity to have served the public in this role. I am proud to have focused on three main goals in furthering the public interest: ensuring that all Americans have access to the benefits of the Information Age; protecting consumers and safeguarding children; and promoting diversity of viewpoints in the media." The remainder of her statement details many of the Commission projects that promoted these goals during her tenure on the Commission.
Each of the remaining Commissioners issued statements wishing Ms. Tristani well in her future endeavors. Chairman Michael Powell said, "I would like to take this opportunity to thank Commissioner Tristani for her outstanding contribution to the Commission over the last four years. It has been both an honor and a privilege to work with Commissioner Tristani on the many tough issues facing the Commission since that day in early November, 1997, when we were both sworn in as Commissioners. Since that time, Commissioner Tristani’s leadership on issues such as the V-Chip and her tireless efforts in bringing communications services to underserved areas have served the public interest well, and will be sorely missed. On behalf of the entire Commission staff, I extend our deepest thanks and our encouragement in Commissioner Tristani‘s future endeavors." Chairman Powell is now the only remaining Commissioner to have served under the previous administration.
Enforcement Matters
In an effort to support competition enforcement matters, the Enforcement Bureau recently hired five new attorneys. Chairman Powell described the five attorneys, four women and one man, as "experienced and talented litigators." Two of the attorneys are being assigned to the Market Disputes Resolution Division, and three are being assigned to the Investigations and Hearings Division. All five attorneys have been serving as either partners or associates with private law firms.
A Virginia man is scheduled for sentencing on December 12th after being convicted of operating an unlicensed FM station on 91.7 MHz. After previous Commission and court actions failed to silence the illegal facility, the US Marshals Service obtained a warrant and seized equipment from the man’s home. The equipment was used to help convict him at his trial. The Commission warns would-be "pirate operators" that operating an illegal, unlicensed broadcast station can be expensive. Civil penalties can include fines of up to $11,000 per violation—not to mention seizure of equipment and court orders. Criminal fines can amount to $100,000 or 1 year of "government housing" or both.
Apparently, there are some teeth in the antenna structure rules. A company that owns a large number of towers on which it leases space was fined $212,000 by the Commission. The violations included failure to provide temporary lighting during construction, failure to register structures, failure to register ownership changes of towers with the Commission, and failure to post antenna structure registration numbers. In addition to the fine, the Commission directed the Enforcement Bureau to further investigate the company’s compliance at other sites. Both the company and the Enforcement Bureau found other "potential violations." When the dust finally settled, the company agreed to make a $300,000 voluntary contribution to the US Treasury and implement a Compliance Plan!
Miscellaneous Matters
The FCC has a new duplicating contractor. Qualex International began service on August 28, 2001. This is the first new duplicating contractor in eight years. The firm can be reached at Room CY-B402, 445 12th Street, SW, Washington, DC, 20554. You can also call them at 202-863-2893. Although many of the FCC documents are now available online from the Internet, Qualex will also be able to furnish copies for a fee. A complete fee schedule was published in a Public Notice released on August 8. Services include document search and retrieval, microfiche to paper copying, map and odd size document copying, and diskette and CD-ROM copying, as well as a number of subscription services.
The Commission has released several new forms: FCC Form 301-CA (June 2000 Edition), FCC Form 346 (June 2000 Edition), FCC Form 349 (March 2001 Edition), and FCC Form 350 (April 2000 Edition). Now that approval has been obtained from the Office of Management and Budget, the new forms can be used for filing. Of course, this also means all previous editions are now obsolete and may not be used. As usual, the forms can be downloaded from the FCC web site by following the "Forms" link on the FCC Home Page. All of these forms may also be filed electronically using the Consolidated Database System (CDBS) on the Mass Media Bureau’s web site at www.fcc.gov/mmb.
The Commission is continuing the redesign of its web site. The latest "victims" of these alleged improvements are the Auction, Universal Licensing, and Antenna Structure sites. The redesigns have been undertaken with the input of usability experts, among others. The new designs are supposed to offer increased accessibility for the disabled and visually impaired. All of this is good. However, long time users, who knew exactly where to go and how to get there quickly with the old layout, will find the new designs highly frustrating. Most data can eventually be found, but pages are sometimes moved to new locations, which invokes a significant learning curve for established users. Thumbs has a few established locations that he has been checking for several years that apparently can only be accessed now with an ftp (file transfer protocol) client.
Upcoming Matters
We continue to maintain lists of upcoming FM allocations on our web site. Some of these will be available in Auction No. 37—assuming it is actually held at some future time! Others are for an even more distant auction—they have been approved but not designated for auction yet. Although you cannot apply for any of these at the present time, we will do our part to at least keep you informed of what will be available in the future.
The events of September have served to remind all of us about what is important in life. Suddenly, our family and friends seem more important than just a few days before. Things that we casually took for granted quickly gained our attention. Like many other Americans, our thoughts and prayers have been with the victims and their families, the rescue workers, and our national leaders. Our voices join the chorus of those asking God to Bless America.
Please know that we do not want to simply take you for granted either. Thank you for your continued patronage of Munn-Reese, Inc. for your technical consulting needs.
© 2001 – Munn-Reese, Inc. – Unauthorized Reproduction is Prohibited