Commlaw - Mass Media

Following the Broadcasting Industry

Tuesday, April 10, 2007

Don Imus

In a civilized society, there is an ever-changing social compact regarding words or points of view which, for the lack of a better term, are socially incorrect.

I have great problems with our government trying to legislate which words or points of view are socially incorrect. Thank goodness for our First Amendment.

But, I have little problem with others calling someone on the carpet for the expression of words or points of view which are so hurtful, insensitive or offensive that they simply have no place being publicly stated.

Don Imus must have missed the last few decades of life in America. Today, it is absolutely unacceptable to joke or make derogatory comments about a person's racial characteristics, particularly when doing it in a way that casts aspersions upon them. What Don Imus essentially said, if I understand his vernacular, was to call the women athletes "black whores".

Our radio industry should take the lead and serve as an example to our communities in commentary, entertainment, and music. We should never accept programming that breaks the social compact on those few words or points of view that are verboten (there are not many such words in today's world -- just look at how pervasive the use of the F-word has become), unless it is because we believe that society is wrong to regard the words or point of view as socially incorrect.

I wish I could think of another term rather than "socially incorrect" to describe Don Imus' comment as that term might have left-wing or liberal implications. Socially incorrect, in the sense in which I am using it, identifies those few words and points of view which our collective society in general have agreed have no place in civilized conversation. "Socially incorrect" today includes derogatory comments about any established religion or nationality. Think of the firestorm that would erupt if a derogatory comment was broadcast about Catholic or Jewish persons or their religious practices, or attributing German WWII atrocities to Americans of German heritage. Derogatory comments about sexual persuasion have also made it into the "socially incorrect" category. Isn't it interesting, however, that, for a time not too many years ago, jokes about people of a Polish heritage were acceptable.

Don Imus apparently recognized his error immediately as he is profusely apologizing (or, more likely, someone on his station's staff called him up and asked him how he could have said what he said). Unfortunately, as many of us have learned the hard way, apologies do not always work when some things are said.

The reason that apologies will not suffice for Don Imus is because of what I observe above -- it appears that he must have missed the last few decades in America as he still thinks it is sport and funny to deride people of color. As one broadcaster I know notes, Don Imus' comment was simply racist, which is wholly unacceptable in today's world.

Thursday, March 22, 2007

IBOC HD Radio Decision Finally Adopted by FCC

The FCC today adopted a decision on digital radio that does the following:

(1) HD operation will now be allowed without prior authority, even for dual antenna operations. Thus, no further need to apply for STAs for dual antenna operations.

(2) Nighttime AM HD operations are now authorized.

(3) HD operations by FM translators, FM boosters, and LPFMs are now authorized.

(4) The main channel of HD operations must simulcast the analog programming.

(5) HD2 and HD3 operations may proceed without prior authority. Thus, no need to apply for experimental authority for HD2 and HD3 operations.

(6) Broadcasters may lease HD2 and HD3 channels to third parties.

(7) There is no mandatory conversion schedule for HD broadcasting. Also, no exclusive digital only operations will be authorized at this time.

(8) The issue of whether there should be additional content control requirements (i.e. restrictions on the ability of receivers to archive programming) is deferred.

(9) The FCC is seeking further comment upon the amount of subscription services that may be run, and whether there should be additional public interest channels on the digital channels.

Once the Commission releases the Report and Order on this decision, more will be known about the nuances. For now, however, it is encouraging to see that AM HD nighttime broadcasting is authorized, that translators and LPFMs can broadcast an HD signal, and that the time-consuming requirements to file for STAs and for experimental authority for some HD broadcasting has been eliminated.

Saturday, March 17, 2007

2007 Broadcast Station Local Public File Checklists

The Federal Communications Commission's Enforcement Bureau and its Regional and Field Offices has shown no let-up in enforcing the Commission's local public file rules. In an effort to assist stations in compliance with the local public file rule, we have created one page local public file checklists for commercial broadcast radio and TV stations for each of the 50 states, territories and the District of Columbia. These one page local public file checklists may be accessed by clicking on this link: 2007 One Page Broadcast Station Local Public File Checklists.

Once each quarter, on January 10th, April 10th, July 10th and October 10th, stations are required to place into their public file a listing of the most significant issues in their community and a listing of the programs that were broadcast addressing these issues. In addition, at various times, often based upon the state in which a station is licensed, broadcast stations are required to place in the local public file EEO material, copies of ownership reports, copies of authorizations, materials required by the political broadcasting and children's television rules, and a variety of other materials. Conversely, there are many materials that are only needed to be kept in the local public file for a set amount of time after which those materials should be removed.

In order to keep your station's local public file up to date, it is recommended that one of your staff be assigned to periodically go through the station's public file using the 2007 One Page Broadcast Station Local Public File Checklists.

Thursday, March 15, 2007

NTIA Creates New $1.5 Billion Consumer Equipment Market

The National Telecommunication and Information Administration of the US Department of Commerce (NTIA) on March 13 created a new $1.5 billion dollar market for consumer settop equipment designed to convert digital television signals to analog signals. Pursuant to the Digital Television Transition and Public Safety Act of 2005 Congress will require all television broadcast stations to cease operating on the analog channels they currently use and broadcast only digital signals. Read more...

Thursday, March 01, 2007

AMs on FM Translators

While the FCC is considering a petition for rulemaking filed last summer by the NAB to allow AM stations to be carried on FM translators, the FCC has gone ahead and granted two AM stations special temporary authority to proceed now with rebroadcasting their stations on FM translators. The stations are WRHI(AM) and WGNS(AM), and the FCC letters granting the STAs can be read by clicking on the station call letters. Whether these STA grants will unleash a torrent of similar requests for waivers to the FCC is unknown but is a possibility.

Friday, December 22, 2006

January 19, 2007 is Effective Date for FCC's City of License Change By Application Rules

The FCC's new radio station city of license change rules, informally known as "Allocations Streamlining," will be effective on January 19, 2007 as a result of being published in the Federal Register. On that same date, the Commission is lifting its freeze on the filing of new petitions for allocation rulemaking, a freeze that has been in place for almost one and one-half years.

The most important rule change made is that city of license changes for both AM and FM stations, commercial and non-commercial (but excluding expanded band AM stations) may now be obtained through the filing of a minor change application. This is to be contrasted with the previous city of license change process where, for FM stations, a paper intensive petition for rulemaking process had to be used, and for AM stations such changes could only be applied for during FCC-specified windows.

It is expected that a great number of applications for radio station city of license changes will be filed on the effective date of this rule change. This has two ramifications for existing radio broadcasters. If a broadcaster is contemplating a city of license change, now is the time to take steps to be ready to file on January 19, 2007 when the rule becomes effective, as earlier filed applications will have an absolute priority over any later-filed conflicting applications. (All applications filed on the same day are deemed to have equal priority.) Additionally, even if a broadcaster is contemplating only a transmitter site change that is acceptable under the existing rules, any one of the expected flood of applications might possibly conflict. Therefore, broadcasters who are contemplating changes that may be filed now are advised to proceed with such applications prior to the effective date of the new rules.

A change made to the rules that will not have a substantive effect on broadcasters is that petitioners seeking a new FM allotment must now file a complete FCC Form 301 along with a several thousand dollar FCC filing fee at the same time that the petition for rulemaking or counterproposal is filed. Previously, the only cost to someone requesting a new FM allotment was the cost of preparation and postage. There have been instances of a single individual filing for hundreds of new allotments across the United States, yet when these same allotments came up for auction, that individual did not seek any of the allocations that it previously had requested. This may be a case of the Commission making a change that should have been made years ago. Nonetheless, this new requirement should help ensure that new allotment petitions for rulemaking and counterproposals are filed only by one who has a real interest in the allotment. As an aside, this new procedure should also stop the somewhat scurrilous practice of filing for a new allotment using only a fictitious name without identifying the individuals behind the allotment request. Now that an FCC Form 301 must be filed for a new allotment, identifying information must be made public at the time the allotment is requested.

Another change is that petitions and other comments filed in allocation rulemaking proceeding may now be submitted electronically through the Commission's ECFS electronic filing system. Previously, all allocation filings had to be submitted on paper with the result that it was often weeks before participants in a particular docket knew what was filed by others. As electronic filing is not mandated, however, this does not remove the possibility that pleadings will still be filed on paper with consequent delays in those pleadings being entered into the Commission’s database systems.

A rule change not adopted was a proposal to loosen the restriction on changing the city of license for the sole radio station licensed to a particular community. The Commission's present policy of only entertaining such city of license changes in the most extreme circumstances will continue, which means it will remain nearly impossible to move an operating, existing station from a community to which it is the only radio station licensed. It should also be noted that all of the Commission's other Section 307(b) policies and technical criteria remain in place regarding moves with the result that many desired city of license moves may be difficult to accomplish.

Under the new rules, up to four contingent applications may be filed to upgrade or to seek city of license changes. This limit of four is an unexpected by-product of the new rules. Previously, using petition for rule making procedures, there was no legal limit on the number of moves and changes that could be requested, provided that consent was obtained from all but two of the stations being moved or otherwise being changed. Now, since moves and upgrades of existing stations must be filed using the new application procedures, the already existing limit of four contingent applications imposes a largely unwelcome limit on many move/upgrade scenarios. Notably, however, changes in reference coordinates, presumably for both vacant allotments and for authorized facilities, are not counted against the four station limit on contingent applications.

In addition, the Commission has stated that where a station, as part of a contingent application group, is being moved to a non-adjacent channel, that move must also be accomplished through an application rather than through a petition for rulemaking process. This could be a significant benefit to some city of license change or upgrade scenarios where previously the fact that a station was being moved to a vacant allotment could have engendered a blocking counterproposal. Now, filings are protected against any conflicting proposals filed at a later date.

Even if you are not contemplating any immediate moves or upgrades, you may be approached by a third party seeking your consent to a change in your station's facilities in exchange for a payment. Such an offer should be evaluated carefully on both an engineering and a legal basis. If someone approaches you about a consensual change to your station's facilities, the chance is that the requested move is part of a puzzle of moves that has the potential to significantly increase the value of one or more stations.

Whether you are contemplating an arrangement by which your station may be moved or upgraded using the Commission's new rules, or whether you are approached by another to obtain your consent to a change in your station's facilities, involving legal counsel at the earliest opportunity is a prudent idea. There are many legal and technical pitfalls involved in a city of license change and having an experienced communications attorney assisting you will be to your benefit.

Wednesday, November 08, 2006

March FM Auction Filing Dates Announced

The FCC, in a document titled Auction of FM Broadcast Construction Permits Scheduled For March 7, 2007; Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures For Auction No. 70, announced a filing window for the filing of FM Auction Short Form Applications commencing on December 6, 2006 at 12:00 noon eastern time and ending on December 19, 2006 at 6:00 p.m. eastern time.

Once the Short Form Applications are filed, auction upfront payments are due no later than February 5, 2007 at 6:00 p.m. eastern time.

The FM auction of some 121 FM construction permits, which are listed in the FCC's Attachment A, will be auctioned in Auction #70 scheduled to commence on March 7, 2007.

Tuesday, November 07, 2006

TV Indecency Revisited

On a voluntary remand from the 2nd Circuit of the U.S. Court of Appeals, the FCC on November 6, 2006 gave a second look to its earlier determination that four television programs, "The 2002 Billboard Music Awards," "The 2003 Billboard Music Awards," "NYPD Blue," and "The Early Show", contained indecent and/or profane material. You can read a copy of this latest FCC decision at this link.

This second look comes as the result of broadcasters' complaints that they should have had an opportunity to present their views to the Commission before the Commission issued its prior March 15, 2006 TV indecency decision.

The Commission found that that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cher during the "The 2002 Billboard Music Awards" were indecent and profane as broadcast, but that the complained-of material aired on "The Early Show" is neither indecent nor profane.

The FCC's decision that the use of the word "bullshitter" in "The Early Show", a news program, is not actionable indecency, is most interesting. The Commission has a quandary. On one hand, there is the First Amendment. On the other hand, there is intense political pressure for the Commission to reign in the broadcasts of those words that have unquestionably, for better or worse, become the vernacular of many segments of our society. Thus, the Commission appears to say that it is acceptable for broadcasters to report the news if it includes verboten words, but not OK to entertain a broadcast audience with those same words.

Even with the indecency pass given to news programs, however, there is no doubt that the Commission will sooner or later again tag a news program for indecency. Previously, the FCC had no problem doing so for the San Francisco "KRON 4 Morning News" TV news story on the local stage show "Puppetry of the Penis" in which a sheet covering the relevant body part slipped off.

Thus, despite the apparent news program exception, broadcasters should continue to be wary of any programming that falls under the Commission's broad and fluid indecency/profanity definitions.

The FCC's November 6, 2006 decision reads as if it is a draft of the arguments that the Commission intends to present to the 2nd Circuit in its attempt to keep intact its indecency/profanity regulatory scheme. It makes interesting reading.

Friday, November 03, 2006

AM/FM Allocations Streamlining Adopted by FCC

The FCC at its meeting this morning (11/2/2006) adopted the "Allocations Streamlining" item which allows for AM and FM stations to change city of license through the filing of a minor change application. Previously, to change a city of license, an FM station had to use rule making procedures, and an AM station had to wait for a major change window. The Commission also extended the availability of the new procedures to FM stations on the non-commercial portion of the FM band.

As is the case now, any application to change a city of license must be mutually exclusive with the existing facility (the daytime facility for AM), and must submit a showing as to how the goals of Section 307(b) are met.

Broadcasters filing applications for such community of license changes will be required to give public notice of the proposed change in the affected local communities. Also, the FCC will publish all proposed community of license changes in the Federal Register, entertain informal objections to them and not take any action on such applications until 60 days has elapsed from the date of Federal Register notice.

The current freeze on the filing of new rule making petitions will be lifted 30 days after the report and order is published in the Federal Register.

The Commission also adopted a proposal under which an allocations rule making proponent seeking a new channel allotment must at the same time of the filing submit an FCC Form 301 with the new station application filing fee which is currently $2,980.

Until now, allocation filings were required to be on paper, even though most other rule making filings were filed electronically. The Commission will now accept allocation petitions for rule making, comments, counterproposals and other filings through its ECFS electronic filing system.
The Commission deferred action on its proposal to limit to a maximum of five the number of changes that could be proposed in a rule making proceeding, stating it would assess the impact of the changes to the current rules make before further considering such a limit. The Commission did state that the Media Bureau is authorized to break up large proposals where possible into smaller ones.

The Commission maintains its policy prohibiting the move of a sole local service from a community except in exceptional circumstances on a case-by-case basis.

It can be expected that the floodgates will open for both minor change applications and for rule making petitions on the effective date of the report and order adopting these changes. At this point, that date is unknown. Assuming that the full text of the rule changes is released in the next several weeks, the effective date is likely to be sometime in early January, 2007.

Monday, September 25, 2006

March FCC Auction - 124 New FM Stations Up for Grabs

On the heels of the FCC's announced January, 2007 FM auction in which only 9 FM stations are to be auction (most being auctioned for the second time around), the FCC has announced an auction of 124 FM construction permits to commence on March 7, 2007. At this point, the Commission has released a Public Notice proposing procedures for the auction, and a listing (spreadsheet listing) of the 124 allocations.

There is an important change in procedures in this auction from previous FM auctions. The FCC has changed its auction rules so that now the payment procedures are as follows: (1) the upfront payment specified in the listing must be wired to the FCC on a date to be announced prior to the auction; (2) ten business days after the auction closing public notice an amount representing 20% of an applicant's winning bids as a down payment must be wired to the FCC; and (3) ten business days after the down payment date the remaining full bid amount must be wired to the FCC. This new procedure was adopted in Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission's Competitive Bidding Rules and Procedures

This new payment schedule is to be contrasted with the FCC's previous FM auction procedures under which the remaining 80% payment was not due until the FCC was ready to grant the construction permit. Thus, a substantial time could elapse between making full payment and actually receiving a grant of the FM construction permit.

The FCC application procedures require that an FCC Form 175 be filed in order to participate in the FM auction by a date yet to be set. After becoming a winning bidder at the auction, the complete FM construction permit application (FCC Form 301) will be due thirty days after the FCC's auction closing public notice.

Applicants who are proposing new tower construction should keep in mind that significant new procedures are required for environmental approvals prior to the FCC issuing the construction permit. If you would like assistance with this FM auction, send me an email message (John Garziglia) and I will let you more.

Friday, September 01, 2006

Radio Indecency Decisions -- What Happened to Them?

Last March, the FCC released a decision addressing a number of pending television indecency complaints. It was widely expected that a similar item addressing pending radio indecency complaints would quickly follow. Five months later, however, nothing more has been released addressing radio indecency complaints.

I have not talked with anyone at the FCC so anything I observe as to why the FCC has not released any decisions on radio indecency is speculation. Nonetheless, my take on the lack of the radio item seeing daylight is that there are several factors in play.

First of all, I believe that the FCC's staff was a little discombobulated that its TV decision met with such harsh criticism from the industry. It is easy when working at a government agency to believe your own reasoning no matter how far removed from reality that reasoning may be. With the TV item, for instance, just what is the difference between the context of a documentary on blues music and a war movie that makes the same word profane in the first instance but not in the second? Apparently the FCC's staff could clearly see there was a difference but that difference still eludes me.

Second, like it or not, the FCC in today's world is subject to political pressure. For the past several years, it has been television, rather than radio (thank goodness and thank you Janet Jackson), on the indecency hot seat. The political pressure was on to get the TV item out the door. I doubt the same outside pressure is being applied to radio complaints. Therefore, the FCC has far less motivation to work on what is undoubtedly an item with as many instances of blurry lines as had the TV item.

Third, radio is a different medium than TV and is much more subject to the imagination. If the FCC's indecency regulations were strictly applied, both context and subject matter would cause perhaps 20% of the love songs routinely broadcast by adult contemporary stations to be held indecent (for instance the lyrics to "Shake You Down" by Gregory Abbott are "Girl I wanna shake you down, I could give you all the loving you need, Come on let me take you down, We'll go all the way to heaven"). That popular adult sappy love songs have the potential to be indecent under the Commission's standards has to give the staff pause in evaluating many of the radio complaints.

Despite the best efforts of the FCC, it is doubtful that a release of the radio indecency decisions will shed more light on exactly where is the indecency line. Like the TV decisions, they may even hold speech that was previously acceptable to be indecent.

A Hurry Up -- Waivers to Allow AM Rebroadcasts on FM Translators

August 24, 2006 marked the conclusion of the 30 day time period in which comments were accepted by the FCC on the NAB's Petition for Rulemaking asking that the FCC's rules be changed to allow FM translators to be a fill-in service for AM broadcast stations provided no portion of the 60 dBu contour of the FM translator exceeds the lesser of either the 2 mV/m daytime contour of the AM station or a circle with its center at the AM transmitter site and a radius of 25 miles.

Particularly interesting were the Comments filed by the Tennessee Association of Broadcasters with assistance from this office. In those Comments, the Tennessee Association of Broadcasters asked the FCC to adopt a blanket waiver policy so that any AM broadcaster and FM translator who fell within the parameters of the NAB's proposal could immediately commence rebroadcasts on FM translators.

The proposed FM translator rule changes, if adopted, can be expected to take a year or more to come to fruition. The Tennessee Association of Broadcasters proposal would offer immediate benefits to AM broadcasters and the public. Such waivers could be quickly granted in time for the winter months in which many AM stations suffer signal problems or must leave the air as the sun goes down in mid-afternoon.

Already at least one station has requested an individual waiver request, and it can be expected that more will follow. Hopefully, the FCC will quickly act in a favorable manner on the Tennessee Association of Broadcasters waiver proposal.

Friday, August 25, 2006

FM Auction Scheduled - What A Disappointment

The staff of the FCC's Audio Division has informally told us it intends to hold an auction of FM facilities on more or less a once a year basis. Since the last FM auction, Auction #62, was held last January, 2006, it was expected that another FM auction would be scheduled sometime this winter.

Well, the FCC has now scheduled Auction #68 for January, 2007 and what a disappointment. Rather than including in this auction some or most of the numerous new FM allocations that have been recently made, this latest auction consists of just 9 allocations, all of which were either unsold in previous auctions (now there's an indication of value!), or for which the winning bidder defaulted.

It is unfathomable why the Commission's staff would only put these "dog" allotments up for auction. What the staff should do is note that, for whatever reason, the construction permits did not previously sell, and the allotments should be permanently deleted from the FM Table of Allotments, in the hope that such a deletion would allow for a more deserving allotment at another community in the future.

Tuesday, July 25, 2006

Finally! The FCC Releases Ownership Further Notice

After the elapse of more time than expected since the June 21, 2006 meeting in which the item was adopted, the FCC has released the text of its ownership Further Notice of Proposed Rulemaking.

The Further Notice of Proposed Rulemaking itself is self-explanatory and nothing will be gained by repeating aspects of it in this blog.

The most interesting reading is obtained by a review of the individual statements of each of the Commissioners appearing at the end of the document. For now, it appears that the vote is 3-2 in favor of allowing for additional media consolidation.

The interesting aspect for radio is the Commission's determination to sever MB Docket No. 03-130 which is the part of the proceeding to try to determine how to set ownership limits in non-Arbitron rated markets. This puts off for another day, and perhaps another decade, a determination of a method different than modified contour overlap to count stations for ownership purposes in unrated markets.

Because the Commission slammed the contour overlap method in its 2003 ownership order, and because that finding was upheld by the Court of Appeals, sooner or later the Commission will either have to come up with a different method of calculating the number of stations in unrated markets, or come up with the reason why contour overlap as stated by the Commission "is flawed as a means to protect competition" in Arbitron rated markets, but makes perfect sense for unrated markets.

Radio can expect a cat fight as to whether local radio ownership limits, presumably for Arbitron as well as non-Arbitron rated markets, should be upped, diminished or left the same, and whether there should be separate limits for AM and FM stations. Also, the Commission hints that it might go back to considering market share when setting ownership limits, deja vu 1992 to 1996!

Much of the outcome of this proceeding will depend upon the 2008 presidential election. Even though the issues of media consolidation cross party lines, it is safe to say that a Democratic administration will be much less likely to proceed with the loosening of media ownership restrictions.

Comments may be filed through the Commission's ECFS system. The deadline date is September 22, 2006 for the filng of comments, and November 21, 2006 for the filing of reply comments. If the past is any indication, there is a significant chance these deadline dates may be extended.

Tuesday, July 18, 2006

AM Re-Broadcasting on FM Translators

The NAB has filed a Petition for Rulemaking with the FCC advocating a change in the FM translator rules to allow FM translators to re-broadcast AM stations.

Specifically, the NAB requests that AM stations be permitted to license and/or
use FM translators to retransmit their AM service as a fill-in service, so long as no portion of the 60 dBu contour of the FM translator exceeds the lesser of either the 2 mV/m daytime contour of the AM station or a circle with its center at the AM transmitter site and a radius of 25 miles.

This petition for rulemaking represents a reversal in the NAB's position on FM translators as it was the NAB for many years that steadfastly sought to limit FM translators to only re-broadcasting full service FM stations, and then only within an FM station's service area contour if there was any connection between the FM translator licensee and the FM station licensee.

By Public Notice released July 25, 2006, the Petition for Rulemaking was assigned RM No. 11338 in the FCC's ECFS, and a time period of 30 days was given for supporting or opposing statements to be filed.

Monday, June 26, 2006

New FAA Rules Could Substantially Impact New and Modified Broadcast Stations

The FAA is proposing substantial changes to its review of possible hazards to air navigation for new and modified broadcast station facilties.

The changes are detailed in an FAA document entitled: SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE. A summary of this document, along with the procedures for filing comments in response to it, is published in the Federal Register at: Notice of Proposed Rulemaking.

Although the FAA's document is lengthy and the proposed changes are substantial, there are two issues about which every broadcast station licensee should be concerned:

EMI (Electromagnetic Interference): The FAA has in the past asserted its authority (one of the only Federal agencies to do so other than the FCC) over the effects of interference from new broadcast facilities to the FAA's system of radio navigation aids, airport facilities and communications facilities. The FCC has generally acceded to the FAA's determination of interference even though the FAA candidly notes in its document (at page 3) that: "[t]he FAA is not empowered to prevent construction or alteration proponents from proceeding with construction, even if it determines that the structure presents a hazard."

Rather than just new broadcast facilities, the FAA is now proposing that virtually ALL changes to a radio or television broadcast station transmission facility be submitted in advance for a possible FAA determination of hazard. The FAA intends to review changes in antennas, chnages of antenna positions on a tower, power increases, installation of an additional antenna on an existing tower, and a myriad of other broadcast station transmission facility changes that were previously not reviewed by the FAA.

The FAA's history of reviewing broadcast station applications for EMI effects is spotty at best, and may be beyond its authority. While there is no question but that air safety is an utmost priority, the FAA has in the past, for instance, taken the position that the all airline radios are to be protected from interference rather than requiring that airline radios be robust and more impervious to interference.

Additionally, the computer program the FAA uses to forecast possible EMI has in the past been the subject of much controversy. The FAA in its proposed rule does not specifically states what criteria it will use to determine harmful EMI from a proposed broadcast station facility.

The cost to screen each broadcast station change for possible EMI effects will add substantially to both the cost and uncertainty of broadcast station changes.

Expiration Dates for No Hazard Determinations: The FAA presently issues "Determinations of No Hazard" that are valid as long as an FCC issued construction permit application either is pending, or if granted, is valid. The FAA is proposing to go to a system that grants determinations valid for 18 months with an optional 12 month extension. If the FAA proposal goes into effect, broadcasters may find an FAA determination of no hazard expiring long before an FCC issued broadcast station construction expires.

* * *

Anyone who assists broadcast station licensees either with its legal affairs or its engineering affairs should review the FAA's proposed changes, and should consider filing comments with the FAA. The deadline for comments is September 11, 2006. Comments may be submitted using the procedures specified in the FAA's Federal Register summary of the Notice of Proposed Rulemaking.