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.

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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.

Media Ownership Rules = Pandora's Box

The Commission on July 21, 2006 moved forward with a Further Notice of Proposed Rulemaking on its media ownership rules. The Commission seeks comment on the:

• Local Television Ownership Limit
• Local Radio Ownership Limit
• Newspaper Broadcast Cross-ownership Ban
• Radio Television Cross-ownership Limit
• Dual Network Ban
• UHF discount on the National Television Ownership Limit

Once again, the Commission opens a Pandora's Box as to what, if anything, should constitute appropriate government imposed limits on the private ownership of television and radio stations using government-granted licenses for public spectrum.

The Commission released a Fact Sheet stating that six public hearings will take place and listing examples of the subjects to be addressed including:

• Localism
• Competition
• Diversity
• Minority ownership
• Children's and family-friendly programming
• Senior citizens
• Religious programming
• Independent programming
• Campaign and community event coverage
• Music and the creative arts
• The growth of the internet
• Jobs and the economy
• Advertisers
• Rural America
• The disabled community

Just thinking about possible changes to the media ownership rules and the impact that changes might have on each of these constituencies, and then attempting to fashion rules that take those impacts into account, makes one's head spin. Indeed, the previous ownership proceeding that commenced in 2002 resulted in a 2003 Report and Order comprising 257 pages.

One thing that can be observed from today's FCC meeting is that the battle lines have already been drawn. Commissioner Copps, one of the two minority FCC Commissioners, observed that:

"We all know that in 2003 the FCC tried to eliminate important safeguards that protected media diversity, localism and competition. A majority of Commissioners approved stunning -- there is no other word for it -- rules that would allow one corporation to own, in a single community, up to three TV stations, eight radio stations, the cable system, the only daily newspaper and the biggest Internet provider. How can it be good for our Country to invest such sweeping power in one media mogul or one giant corporation?"

Meanwhile, Chairman Martin stated that "[w]e begin this dialog in a neutral and even-handed fashion".

A procedural point to be wrestled with by the Commission will be whether the next document released by the Commission contains actual changes to the rules, or whether another request for comment on specific rule changes will be invited.

A substantive issue will be to what extent, if any, the record and comments collected in response to the Commission's July 1, 2004 Localism Notice of Inquiry will be incorporated into any decisions made with respect to media ownership.

Timing-wise, any ultimate decision on media ownership could easily extend past the next presidential election cycle. This invites the observation that any decision made in this current proceeding with the Commission having a Republican majority of FCC commissioners might quickly become history if a Democrat is elected as president in 2008.

Blinks -- Watch Out for Sponsorship ID Issues

Recently, at least one major radio group has toyed with the idea of one-second or three-second commercial radio availabilities which they call "Blinks".

With a one-second or three-second radio ad, however, watch out for compliance with the FCC's sponsorship ID rules (Section 73.1212 of the Commission's rules). A valid sponsorship ID in a commercial announcement is presumed as long as a reasonable listener can discern who is the actual sponsor. Thus, a Campbell's Soup ad likely needs no additional sponsorship ID, while a Budweiser ad paid for by a local bottler does, as it is the local bottler who is the sponsor, not Budweiser.

In a "blink", if the sponsor's name is stated, then no problem. If not, and it is in the nature of a teaser ad, then there is a sponsorship ID problem. Just something to watch out for as radio stations adopt innovative new ways of selling radio time.