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.

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.

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.