FCC may mandate HD Radio reception by satellite receivers


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In August the Commission issued a notice of inquiry (NOI) under the aegis of its XM-Sirius merger order seeking public comment on whether the FCC should (or can) mandate that satellite radio receiver devices include HD Radio receivers. The FCC deferred consideration of this matter when it approved the merger in July.

HD Radio, the digital broadcast technology developed by Ibiquity and endorsed by the FCC in 2002, has struggled to find marketplace acceptance. As part of its opposition to the XM-Sirius merger, the broadcast industry urged the Commission to consider the competitive impact of satellite radio on the fledgling HD Radio service. Congressmen Dingell and Markey urged the FCC to require open access to both satellite and HD Radio digital receive devices. Under the Dingell-Markey proposal satellite receivers would have had to be capable of receiving HD Radio and vice versa.

In approving the merger, the FCC decided not to adopt mandated receiver compatibility. Instead it accepted Sirius-XM's voluntary commitment to open access, allowing third parties to develop and design equipment and not to bar the inclusion of audio technology, including HD Radio, in those devices. But the FCC also promised to open a proceeding looking toward mandated mutual compatibility of receivers. The August NOI does just that.

The NOI presents for comment a number of specific questions, including:

  • What is the state of HD Radio? Is there a need for intervention in light of marketplace developments? Would FCC-imposed requirements help to facilitate deployment?

  • Were the voluntary open access commitments that were adopted in the merger order sufficient to address any possible problems?

  • Should the FCC require inclusion of HD Radio receivers in satellite-receive devices, and if so, should that requirement apply to all such devices or just those with the ability to receive analog terrestrial radio signals?

  • Would mandating inclusion of HD Radio receivers in satellite receive devices promote competition among Sirius XM, HD Radio, and other audio technologies, thus serving the public interest in lowering prices and increasing programming? Or would such mandates unduly burden the SDARS market?

  • Should the FCC likewise mandate that all HD Radio devices incorporate satellite-receive capability?

  • Does the FCC have statutory authority to require receiver manufacturers to include certain technologies in receivers?

The answer to the last question might render all the other questions moot. And this could happen. Unlike the situation where Congress mandated DTV receive capability in TV sets, or required that VHF sets have UHF tuners, there is no law imposing such a compatibility requirement on radio receiver manufacturers. However, the Radio All Digital Channel Receiver Act (H.R. 7157), introduced by Rep. Markey, would provide the necessary authority if it is eventually enacted. Due to this legal uncertainty, it is unlikely the FCC will mandate cross-compatibility unless and until Congress gives the FCC authority to do so.


Dateline

Feb. 1 is the deadline for submission of biennial ownership reports by radio stations in Kansas, Nebraska and Oklahoma.

Feb. 1 is the deadline for radio stations in the following states with more than 10 full-time employees to electronically file their Broadcast EEO Mid-Term Reports (Form 397) with the FCC: Kansas, Nebraska and Oklahoma.

Feb. 1 is the deadline for radio stations licensed in the following states to place their annual EEO Reports in their public files: Arkansas, Kansas, Louisiana, Nebraska, New Jersey, New York and Oklahoma.


Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald & Hildreth, Arlington, VA. E-mail martin@fhhlaw.com.




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