December 1998 Newsletter

News from the Offices of E. Harold Munn, Jr. & Associates, Inc. P.O. Box 220 – 100 Airport Drive Coldwater, MI 49036 Wayne S. Reese, President

Telephone: (517) 278-7339

Internet: www.munn-reese.com

Fax: (517) 278-6973

December 1998

Munn Associates Matters

After existing more than 45 years as E. Harold Munn, Jr. & Associates, Inc. our name is going to change to Munn-Reese, Inc. effective January 1, 1999. Mr. Munn established the firm back in 1950 and served as its president until his retirement in November of 1992 when he and Mrs. Munn sold the business to our current president, Wayne Reese, and his wife, Chris. The new name is designed to reflect both our roots and our current leadership. Although the new name will require the usual changes in business cards, stationery, and the way we answer the phone, there will be no changes in the staff or the way we do business. So this will be the final newsletter from E. Harold Munn, Jr. & Associates, Inc. However, it will not be the final newsletter! The newsletter will continue—complete with Thumbs Feebleman.

Commission Matters

Recently, the Commission surveyed 653 AM, FM, and TV stations to determine their compliance with the new Emergency Alert System (EAS) requirements. The conclusion of this survey was that although compliance levels have improved, they are still not adequate. Therefore, beginning February 1, 1999, the FCC will begin inspecting stations in an effort to "encourage" 100% compliance levels. Monetary forfeitures may provide additional incentives for those broadcasters who are hesitant to achieve full compliance with the new system. Here are five categories where the surveyed stations fell short of the goal: 1) Stations must have an EAS encoder and decoder in operating condition—but only 87% actually did; 2) Licensees are supposed to monitor two other EAS sources for an EAS alert—but only 83% were; 3) Weekly and monthly tests, as well as equipment malfunctions, are supposed to be logged—but it only happened 77% of the time; 4) An EAS Handbook should be readily available—but only 85% of them were; and 5) Stations are required to transmit and receive weekly EAS tests, as well as re-transmit a monthly test—but it only happened 76% of the time.

While you’re checking on EAS compliance for your station, you may also want to check on your tower’s painting and lighting requirements. The FCC has issued a warning to antenna structure owners to comply with FCC tower lighting and marking rules. The warning follows an unfortunate incident near Muleshoe, TX. An emergency helicopter was forced to alter its approach pattern after the pilot unexpectedly encountered an unlit tall tower during a nighttime run. The FCC’s Dallas office has since made certain the tower is now lit. Compliance and Information Bureau (CIB) Chief Richard D. Lee said, "Unlit antenna structures present a special hazard to law enforcement and emergency medical personnel. I cannot stress too strongly the need for compete compliance with the FCC rules. Violations in this area can place life and safety at risk. Enforcement of these requirements is a top priority."

A Notice of Proposed Rulemaking (NPRM), MM Docket No. 98-203, has been issued seeking comments on the extent to which non-commercial educational DTV stations should be allowed to generate financial income with the operation of their ancillary and supplementary services. The public broadcasting community would like to be able to use these services to help fund the conversion to digital service and support their regular non-commercial broadcast services. To the extent such resources are used for funding their non-commercial activities, they would also like the resources to be exempt from the 5% fee commercial broadcasters will be required to pay. The Commission is also seeking input on whether advertising should be allowed on ancillary subscription services offered by non-commercial stations. The question of how to balance the integrity of the non-commercial educational status of public broadcasting with the need for public broadcasting to have access to adequate funding continues to grow more complex.

Last September, mutually exclusive TV translator and LPTV applicants were given a 90 day window in which to resolve their mutual exclusivity by using engineering solutions and filing minor amendments. Since the Commission still has not established a means for resolving these cases, the window has been extended for an additional 90 days. It is not immediately clear whether the extension says more about the ability of the applicants to resolve their own problems or the inability of the Commission to find a satisfactory procedure for resolving mutually exclusive applications in all broadcast related services.

Earlier this year the DC Circuit Court of Appeals ruled in Lutheran Church-Missouri Synod v. FCC that the FCC’s broadcast EEO requirements were unconstitutional as applied to minorities. The FCC has now responded with another NPRM (FCC 98-305) proposing new EEO rules that would require broadcasters to inform women and minorities of job openings. According to the announcement of the NPRM, "The FCC’s proposed EEO rule revision would require outreach efforts designed to ensure that minority and female applicants are informed of, and have an opportunity to apply for, openings at broadcast stations. The proposal would not contain requirements for employers to assess how the composition of their employment profiles compares with the composition of the local labor force…" The Commission is also requesting comments on the extent to which it should limit reporting and recording keeping requirements for stations with small staffs or stations in small markets. Comment is also being sought on the FCC’s efforts to allow religious broadcasters to establish religious beliefs or affiliation as a requirement of employment. Even if such rules are adopted, religious broadcasters would be expected to make a reasonable good faith effort to recruit women and minorities who meet their religious requirements.

Commissioner Matters

The revised EEO rules were accompanied by several statements from the Commissioners. Chairman Kennard and Commissioner Tristani issued a joint statement supporting the NPRM. Commissioner Ness issued a separate statement in which she supported the NPRM and added several points of emphasis. Commissioner Michael W. Powell also issued a supporting statement. Since Commissioner Powell doesn’t often write separate statements in broadcast matters, we thought you might enjoy reading some of his comments. "I fully support this NPRM which looks to revise the equal employment opportunity rules to be consistent with the holding of the D.C. Circuit in Lutheran Church." "If one believes, as I do, that the Constitution is not a complete bar to expanding opportunities for minorities and women, then we should not be afraid to forge ahead in search of effective, judicially sustainable tools – no matter how difficult it might be to navigate a successful path." "Individuals that operate broadcast facilities pursuant to a license they obtain from the government (in effect from the people of the United States), must do so in the public interest. And, it is our statutory charge to ensure that they do so. The venerable public interest standard is, to my mind, vague and expansive and too often allows for excessive government intrusion, if not outright mischief. Over the years, there has been hot debate as to what the standard should encompass. I personally have often urged the adoption of guiding or limiting principles to constrain the standard’s invocation. Nonetheless, of this I am sure: If the public interest means anything at all it cannot possibly tolerate the use of a government license to discriminate against the citizens from whom the license ultimately is derived. Discrimination is an insidious legacy that has unquestionably denied certain citizens equal opportunity to savor the fruits born by this great country. No one is entitled to rewards they did not earn. No one is entitled to jobs for which they are not qualified. But, they are entitled to an equal opportunity to vie for those rewards and to compete for those jobs. This NPRM suggests doing nothing more than that."

A concurring statement was also issued by Commissioner Harold W. Furchtgott-Roth. As might be expected, his support of the NPRM is tempered with some reservations. "I do not oppose the issuance of a Notice of Proposed Rulemaking (NPRM) to seek comment on, among other things, the statutory authority for, and the constitutional feasibility of, employment regulations for broadcasters." "I cannot at this time, however, support the unnecessarily broad conclusions and the underlying reasoning contained in this item, or the expansive discussion of social policy set forth in the introduction." "As I have explained in other contexts, there are many hurdles to clear on this legal track before we can adopt sound EEO rules." "Among them is the necessity of showing a real, not just presumed, connection between the race or gender of station employees and the ‘viewpoint’ that is ultimately expressed on the air. Nothing in this NPRM suggests that we have any such record, and yet the NPRM concludes that the contemplated rules would indeed further the goal of creating ‘varying perspectives’ … on the air." "In addition, while it is true that the holding in Lutheran Church did not address and thus does not prohibit pure recruiting rules, it is not necessarily settled law that such rules are wholly free of Equal Protection implications, as the NPRM argues." "Certainly, the Supreme Court has never suggested that the meaning of ‘race-based decisionmaking’ changes depending on which particular stage of the employment process – firing, retirement, promotion, hiring, interviewing, applying, or recruiting – is at issue. I intend carefully to review the cases in this area before reaching any conclusions." "Furthermore, at this juncture … I would not reach the tentative conclusions that we have statutory authority to issue either an anti-discrimination or a recruiting rule." "To my mind, this is an open question, and one on which I will be very interested in receiving comment; indeed, I encourage commenters to address this question."

Miscellaneous Matters

The Commission recently held a forum on Tower Lighting and Year 2000 Issues. A special website, <www.fcc.gov/year2000>, has been developed by the FCC to address Y2K issues. The forum addressed particular issues involving tower lighting systems that were either controlled by or monitored by computer systems. The Commission, as well as the FAA, is obviously concerned that tower lighting circuits remain activated regardless of any Y2K problems that might exist in the control systems. Our wacky editor, Thumbs Feebleman, concludes that the motor driven mercury switches he remembers from his early days in broadcasting could probably handle any of the Y2K problems—as long as the power utility remains in service.

More illegal pirate stations have been shut down by the Commission. One FM operation in the Pittsburgh, PA area was shut down after FCC personnel determined it was operating at a mere 3,809,705 times the legal power for unlicensed stations! Other pirates are branching out to frequencies outside the broadcast bands. An electronics engineer near Atlanta, GA, who was reportedly upset with the amount of noise generated by aircraft flying over his residence, was arrested for causing interference on frequencies used for communication between aircraft and the air traffic controller at the Atlanta Hartsfield International Airport. Four other pirates were shutdown after operating on 6955 kHz in the short-wave band from locations in MA, IL, TX, and CA.

A recent application for an experimental FM station attracted our attention. The application requested a construction permit to test an electronic safety system that would permit an emergency vehicle or train to override active radios in all passenger cars in the immediate area. This would allow drivers to be warned of the approach of an emergency vehicle or train. The application requested the use of 95.9 MHz in the FM band and 920 kHz in the AM band. This could be an interesting development to follow.

Upcoming Matters

You can find the continually update list of future FM allocations on our web site at <www.munn-reese.com>. Although there still is no official word on when the freeze on major changes and new commercial applications may be lifted, existing stations can continue to apply for "minor" changes. Petitions to amend the Table of Allotments can also be filed at the present time.

December always seems to be a busy month. Commercial stations hope to carry heavy spot loads in the fourth quarter—especially in December. Even those of us who are not involved with commercial sales or non-commercial underwriting announcements experience busy-ness during the Holiday Season. There is so much to do—shopping for friends and family members; the annual exchange of cards, notes, and letters with old friends; parties and family gatherings; and often travel plans. We hope that all the activity of the season will not prevent us from recognizing the significance of the One Whose birth we celebrate. We, the staff of E. Harold Munn, Jr. & Associates, Inc. / Munn-Reese, Inc., extend to our very Best Wishes to you for a Blessed and Merry Christmas and a Happy and Prosperous New Year.

Merry Christmas!

Wayne Reese

Chris Reese

Virgil Royer

Don Baad

Ed "ET" Trombley

Happy New Year!