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Government Shutdown Causes FCC Delays
With the final gasps of fall almost expired (coupled with a government shutdown) is a regulatory potpourri of radio broadcasting matters. Last month, the FCC was closed for business for more than two weeks. Not only were no applications granted, rulemakings completed, or transactions approved, but the FCC also shut down access to the online databases so many of us rely on to complete our daily business. When the systems came back online Oct. 18, the FCC took steps to address the effect of the government closure.
Most important for many was the delay of the low power FM filing window. Rather than closing the filing window on Oct. 29 as originally planned, the FCC postponed the closure of the filing window until Nov. 14. By delaying the closing of the window, the FCC provided additional time for applicants to prepare their proposals, and provided their engineers and lawyers time to make sure the I’s were dotted, and T’s were crossed.
It is anticipated that the FCC’s staff will begin to process the singleton applications immediately. Applicants with tech-savvy engineering consultants will also be able to determine whether applications submitted in the filing window are mutually exclusive with other nearby applications. Those applicants that can identify technical solutions to resolve mutual-exclusivity should be able to file amendments to their pending applications to remove themselves from conflicts and render their application eligible for processing as a singleton. Those that would rather wait for the FCC to announce singleton and mutually exclusive applications group will likely see the first wave of public notices in January or February 2014.
Although not directly tied to the government shutdown, the Nov. 1 deadline for commercial broadcasters to file biennial ownership reports was pushed back to Dec. 2. With the government closure, this delay in the filing deadline took on new importance since parties could not prepare the sometimes-lengthy ownership reports for a good part of October because CDBS was shut down. The ownership reports are intended to provide a snapshot of the media ownership landscape as of Oct. 1. As a result, even if a licensee has subsequently closed on the sale of a broadcast facility, it must submit an ownership report reflecting its ownership position as of Oct. 1. It is important to remember that commercial Low Power television stations and Class A television stations are also required to submit an ownership report before the deadline.
Notably, the FCC announced it will act on a petition for declaratory ruling filed last year relating to the foreign ownership of broadcast licensees. The Communications Act prohibits foreign ownership stakes in broadcast licensees more than 25 percent unless the applicant seeks a specific ruling. While non-broadcast licensees have often used the case-by-case standard to exceed the 25 percent benchmark, it has long been an unspoken policy of the FCC to not grant similar requests for broadcast licensees.
Now, the FCC is said to have decided to apply the same case-by-case review process for broadcast licensees as well, and will use a ruling on the petition for declaratory relief as a vehicle to state its intention to permit such ownership interests in the future. Each of the Commissioners issued statements supporting the expected change in the standards, which will likely become effective upon the grant of the petition. Whether this change in policy will lead to a dramatic increase of foreign ownership stakes in broadcast licenses is unclear, but it would be reasonable to expect that certain foreign language programming outlets would see the opportunity to bring in foreign investors.
Note: Because of the government shutdown, the AM Revitalization NPRM discussed in the October FCC Update has yet to be released. A full discussion will follow its publication.
Nov. 16: Stations in Alaska, America Samoa, Guam, Hawaii, Mariana Islands, Oregon, Saipan and Washington continue running License Renewal Post-Filing Announcements. Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont continue running License Renewal Pre-filing Announcements.
December: Commercial AM and FM licensees file Biennial Ownership Report (FCC Form 323). Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont file License Renewal Application and EEO Program Report, and Noncommercial stations file Ownership Report (FCC Form 323-E). Commence running License Renewal Post-filing Announcements Dec. 1 and 16.
Petro is of counsel at Drinker Biddle & Reath, LLP. Email: firstname.lastname@example.org.
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