Monty Tayloe

The influx of FM translators expected from the two FCC translator application windows could cause a rise in interference conflicts with existing full-power FM stations, and some broadcasters believe the rules for those conflicts are due for reform, broadcasters, attorneys and industry officials told us last week. “I believe we are gonna see a spike in these kinds of battles,” said Fletcher Heald broadcast attorney Frank Montero. It's far too easy for a full-power FM station to accuse of a translator of interfering with its signal, said Cromwell Group President Bud Walters, who owns both full-power FM stations and FM translators. “There needs to be some standards,” Walters said, saying broadcasters should work toward a consensus on how to address interference issues between translators and full-power stations. Several radio industry officials said NAB is looking into the matter. “NAB is working closely with our members on this issue. It is important that there is a reasonable way to deal with interference complaints as new translators come on line,” an NAB spokesman said in an email. “We are confident the FCC will work with us to develop meaningful solutions for all involved.”

Industry officials see the set-top box draft order as stalled, even as FCC officials told us work on the item is still occurring. Ex parte filings show a small surge in recent conversations on the document between stakeholders and Commissioner Jessica Rosenworcel's office. Rosenworcel has been viewed as the deciding vote on the item since it was pulled from the September commissioner meeting agenda (see 1609290076). Since Monday, Incompas, Microsoft and a group of content company officials spoke with Rosenworcel's office, according to industry officials and ex parte filings. “Productive conversations are ongoing,” an FCC spokesman told us.

An FCC draft order on increasing the required amount of video description, set for commissioners' Nov. 17 meeting, likely won't get unanimous support from the members and strongly resembles the NPRM from which it sprang, industry and agency officials told us Wednesday. The draft would raise the amount of video description required for networks -- an adjustment authorized by Congress in the 21st Century Communications and Video Accessibility Act (CVAA) -- and the number of networks covered by the requirement, which industry groups and Commissioners Ajit Pai and Mike O'Rielly said oversteps FCC authority (see 1603310058). The draft item also includes a “no backsliding” rule that industry opponents have called outside FCC authority.

Wireless carriers and broadcasters disagree about the viability of the FCC's repacking schedule and how it should be changed, according to comments filed in docket 12-268 in time for Monday's comment deadline, which saw some earlier comments from all sides (see 1610310052). Some broadcasters believe FCC prioritization of clearing the 600 MHz band of stations gives too much emphasis to the needs of wireless carriers and not enough to the health and safety of tower crews, while the Competitive Carriers Association argued that not enough emphasis is being given to clearing the spectrum quickly. “Allowing stations to move forward when ready, potentially out of order with the schedule produced by the Phase Scheduling Tool, will remove unnecessary impediments and ensure timely reassignment of stations that may be prepared to move sooner than anticipated,” commented CCA.

An FCC proceeding on Entercom's KDND(FM) Sacramento license renewal application likely will take years and is seen as unlikely to result in the station losing its license, despite a 2007 radio contest that led to the death of a listener, attorneys told us. Though hearing designation orders such as that issued against KDND are exceedingly rare, larger companies such as Entercom generally are able to handle the burden of the expensive litigation required and reach some sort of resolution with the commission that allows them to keep the license, said Fletcher Heald broadcast attorney Peter Tannenwald. But Tannenwald, who has defended clients in such proceedings, said the process probably will be difficult, comparing the hearing process to a “death ray.” Such hearing proceedings are rare, Tannenwald said, but when the FCC “gets really mad” at a licensee, it “lets them have it,” he said. The order directs the ALJ to commence the hearing within nine months.

Even as Beasley Broadcast's $240 million dollar agreement to buy Greater Media and some related spinoff transactions grabbed headlines (see 1607200076), there isn't an uptick in radio mergers and acquisitions, brokers, attorneys and analysts told us. Beasley/Greater Media and its related sales are outliers, brokers said, with their scale possibly magnified by a lack of deals in other industries. Though the market for radio deals is down from where it was at this time 2015, some brokers said investors view radio in a better light. Investors increasingly see radio as a stable place to put their money, especially compared with newspapers, said Media Services Group-Chicago Director Robert Heymann: “Buyers and sellers have become more rational in their valuations of stations.”

The Copyright Office was “aggressively lobbied” by programmers for months leading up to its letter denouncing the FCC's set-top NPRM (see 1608050053), and “made no attempt to seek other views,” said the Electronic Frontier Foundation in a blog post Wednesday based on a Freedom of Information Act request. The request yielded 310 pages of emails between CO officials and MPAA Senior Vice President-Government and Regulatory Affairs Neil Fried, then-FCC General Counsel Jonathan Sallet, Capitol Hill offices, reporters including with Communications Daily, and representatives of Comcast, Disney and TiVo. “The Copyright Office has come under scrutiny for alleged systemic bias in favor of major media and entertainment companies to the detriment of Internet users, technology companies, and independent creators,” said EFF. “These documents received by EFF yesterday do nothing to dispel that concern.” The CO didn't comment. The emails show Fried began lobbying the office shortly after the FCC announced its set-top plans, before Sallet began trying to schedule a meeting on behalf of the commission. The CO met with MPAA April 11 and the FCC a week later, the documents show. “Throughout the spring and summer of this year, the Copyright Office alternated between meetings with the FCC, MPAA, and other major content companies such as Comcast and Viacom,” EFF said. “On May 31, just hours after holding a conference call with MPAA, the general counsel of Copyright Office emailed her counterpart at the FCC saying 'the proposed rule may in fact implicate some rather serious copyright concerns.' The emails also show the CO coordinating with members of Congress on formally weighing in on the set-top debate, and that the CO only met with industry advocates for the FCC plan the day before issuing its letter denouncing the FCC NPRM. A staffer for Rep. Ted Deutch, D-Fla., contacted the CO with the idea of Deutch formally requesting a letter from the office on June 17, according to the emails. On June 28, CO officials watched an NCTA demo of set-top tech arranged by MPAA, and on June 30 met with Sallet and other FCC officials, the emails show. On July 11, CO officials met with House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn. Four days later, she joined Reps. G.K. Butterfield, D-N.C., Doug Collins, R-Ga., and Deutch in asking for a written analysis of the FCC plan. A Senate Finance Committee staffer contacted CO officials about a possible meeting on July 22, the emails show. Staffers for Rep. Zoe Lofgren, D-Calif., and Sen. Ed Markey, D-Mass., made contact with the CO to set up a meeting on July 27. The CO letter went out Aug. 3. An "agency that listens only to the views of some industry groups without seeking out additional opinions cannot be a reliably neutral expert for Congress or the FCC,” said the EFF. “We hope that the FCC will weigh the Copyright Office’s comments appropriately.”

With a deadline for AM broadcasters to seek a 250-mile waiver to allow them to move an existing FM translator expiring Monday, brokers and attorneys told us they see a steady stream of translator deals. The window was on a first-come first-served basis and included an initial rush for applications (see 1608030071). Broadcasters continue to find opportunities for translators during the length of the window, Womble Carlyle radio lawyer John Garziglia told us.

The text of the FCC order eliminating the UHF audience reach discount was published in Monday's Federal Register, but the media ownership quadrennial review order and the accompanying rules weren't, though they were approved nearly a month earlier. The ownership ruling was approved Aug. 10 (see 1608250063), and the UHF discount vote was at the end of that month (see 1609070046). Some industry officials said the delay in publishing the text is unusually long, but others said it’s not out of the ordinary for a document as large and complicated as the media ownership one to take a longer time. The FCC has had long delays before publishing such items (see 1509070003).

The FCC incentive auction “quiet period” has stretched on 10 months, longer than most TV broadcasters expected, squashing dealmaking and making it difficult for lawyers to serve their clients, broadcast attorneys said in interviews last week. With the auction widely forecast to stretch into 2017, some broadcast industry officials are seeking relief. The quiet period was expected to make dealmaking difficult (see 1411280041). The Incentive Auction Task Force said it will consider ending the communications prohibitions after the auction's final stage rule has been satisfied to give broadcasters more time for the repacking. It's the dampening effect on transactions that's the real difficulty of the quiet period, said broadcast attorneys and BIA/Kelsey Chief Economist Mark Fratrik.