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.

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.