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.

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.

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.

The confirmation by the Senate on Friday, May 26, 2006 of Robert M. McDowell to be the 5th FCC commissioner might spur some movement in two long pending broadcast items on the 8th floor.

Two of the broadcast items reportedly now in a hold status due to the lack of three votes are:

• The HD radio item where Commissioners Adelstein and Copps were reportedly insisting on additional public interest obligations for the 2nd channel. This item might also take up AM nighttime HD broadcasting which has been a hot potato due to concerns over possible interference.
• The ownership proceedings where emotions run high on media consolidation. The broadcast/newspaper same market ownership ban is expected to be taken up first although there are any number of ownership issues that have strong support as well as strong opposition. For broadcast stations in smaller markets, there may be but three unattractive choices: (1) buy the local newspaper; (2) be bought by the local newspaper; or (3) watch your competitor be bought by the local newspaper.

It will be interesting to see the FCC's agenda for its next Commission meeting.

1. involve high intensity white lighting located in residential neighborhoods
2. located in an officially designated wilderness area or wildlife preserve
3. threaten the existence or habitat of endangered species
4. affect districts, sites, buildings, structures or objects significant in American history, architecture, archaeology, engineering or culture that are listed in the National Register of Historic Places or are eligible for listing
5. affect Indian religious sites
6. located in a floodplain
7. require construction that involved significant changes in surface features (e.g., wetland fill, deforestation or water diversion)
8. not comply with the FCC established guidelines regarding exposure to RF electromagnetic fields as described in OET Bulletin 65.

An FCC environmental assessment worksheet shows the specific efforts expected of applicants for each of the above categories in the event any of the above apply and an EA must be prepared and submitted to the FCC.

It was the proliferation of cell phone towers, particularly in historically and religiously sensitive areas (Indian burial grounds) that prompted Commission to strictly impose these new requirements. With any new tower or modified tower application, an applicant must now under the Nationwide Programmatic Agreement assess whether the new tower construction is exempt, and if not comply with its numerous provisions. Most new towers are not exempt, particularly if the proposed tower is over 200 feet above ground.

In a nutshell, to comply with criteria 4 and 5 above, the applicant:

• must notify the local community of its plans
• must notify specified Native American and Hawaiian America organizations and tribes of its plans
• must notify local and state historic preservation organizations of its plans
• must prepare documentation showing that there will be no actual or visual harm to existing or eligible historic sites with some of this showing prepared by a person who has certain "professional qualification standards" including a graduate degree in "Historic Architecture and one full year experience in historic architecture projects," and
• submit this in a form to the state historic preservation organization for review.

The requirements for Nationwide Programmatic Agreement compliance must be complete prior to an applicant certifying "yes" on the environmental question to its broadcast station application. The FCC's staff has informally advised that a "yes" certification without completing the requirements of the Nationwide Programmatic Agreement, if required, will be regarded as a false certification subjecting the applicant to possible severe sanctions.

• What qualifies as "local" programming?
• Are public service announcement requests being denied?
• Should broadcasters be required to air a minimum amount of local or national political and civic discourse?
• In what ways should broadcasters be required to serve all significant segments of their communities?
• Is voice-tracking in the public interest?
• Do national music playlists diminish localism?
• Should the Commission conduct audits of local public files?
• Should LPFM be further promoted?

While the local public file Petition for Rulemaking only addresses whether the local public file rules should remain in place, that issue is necessarily intertwined with the larger question of just what public interest regulations should be imposed upon broadcast stations. Broadcasters may find that the public thinks that there are not enough regulations rather than too many, and asks the FCC to put into place requirements that are more, rather than less, burdensome than the current local public file rules.

As digital HD radio gains popularity, many station owners are contemplating the initiation of HD operations. Some station engineers, unfortunately, have initiated such operations without following the FCC's requirements.

There are two ways to initiate HD radio operations:

• If the same antenna will be used with a combiner to transmit both the analog and digital signal, the FCC allows stations under its March 20, 2003 Public Notice to commence digital HD Radio operations with a notification letter to the FCC. A sample notification letter is contained in the March 20, 2003 Public Notice.
  
• If, however, separate antennas will be used for the analog and digital signals, the FCC's requirements are more involved and are described in a March 17, 2004 Public Notice. The separate digital antenna must be located on the same tower as the main antenna or on a tower within three seconds of latitude and longitude, and must be at a height above average terrain between 70% and 100% of the main antenna. Most importantly, the separate antenna must be licensed as an auxiliary antenna and once licensed, a request for special temporary authority (STA) must be granted by the FCC prior to the initiation of HD radio operations.

It is the second mode of HD operations that appear to get most station licensees into trouble. Once the HD radio equipment arrives, some licensees are simply putting up the antennas and commencing HD operations without regard to the licensing and STA requirements.

The STA requirement, in particular, is burdensome on licensees as STAs are issued for time periods of 180 days. Thus, under the FCC's present scheme, once HD Radio operations are initiated, the licensee every 180 days must re-apply for an STA and pay the requisite FCC filing fee.

For those licensees who wish to broadcast multiple audio streams over HD radio, the Commission's March 8, 2005 Public Notice requires that experimental authority be requested which is an informal application contained in a letter form. No FCC filing fee is required to apply for this HD radio multiple audio stream experimental authority.

In 2004, the FCC released a Further Notice of Proposed Rule Making which remains pending. Once the issues in this proceeding are presumably clarified by the release of new rules and procedures by the FCC, it is hoped that the continuing STA requirement, in particular, will become a thing of the past.

HD radio operations are on the cutting edge and stations who go forward with this new technology are to be commended. Broadcast licensees need to be sure, however, that they fully comply with the FCC's rules and policies in initiating HD radio operations.

The crux of my argument is the fact that in 1982, the FCC allowed television translators to begin locally originated programming, because the Commission has always put local service at the top of its priority list. That [television translator program origination] decision had no demonstrable adverse effect, public interest or otherwise, on television broadcasting. That's what I'm asking the Commission to do in my [FM translator] petition ... put local service to local communities, as a continued service priority. ... There are such things as live coverage of city council meetings, additional high school sports play-by-play broadcasts, additional church services, and other music formats, that a Taylorville, IL FM translator being able to locally originate, could provide the approximately 5-mile radius of listeners in the Taylorville city limits. Putting this kind of programming on my Taylorville full-power FM would not be practical, as it wouldn't apply to listeners outside the Taylorville city limits.