Radio Survivor

Radio One, the nation’s biggest African American oriented radio network, has endorsed the proposed Comcast/NBC Universal merger, now being evaluated by the Federal Communications Commission and the Department of Justice.

Its CEO Alfred Liggins III praised Comcast for helping Radio One develop its TV One cable channel.

“The result is that today, as one of the nation’s two major African-American-oriented channels (and the only one owned by African-Americans), our network now reaches more than 50 million homes via cable and satellite and has an audience with enormous race, gender and generational diversity.

In addition to supporting TV One, Comcast has a history of giving diverse voices a megaphone. The company assisted in launching African-American-owned channels like Hip Hop on Demand, the Africa Channel and Crossings and boasts an unrivaled package of 50 Spanish language channels and 150 titles available on-demand. The newly formed company plans to build on this track record in a number of exciting ways.”

Radio One has mostly been in the spotlight of late for its quarrels with advocates of the Performance Rights Act, which would require broadcast radio stations to pay royalties to performers as well as copyright holders.

Critics of the Comcast/NBCU merger warn that the union would represent another step towards an Internet/cable entertainment oligopoly.

It’s been a few years since the FCC reached consent decrees with CBS, Citadel and Clear Channel over illegal pay-for-play schemes, so you think that the major broadcasters would have learned their lesson. Apparently the warning didn’t get translated into Spanish. Yesterday the FCC released a new consent decree [PDF] with Spanish-language broadcaster Univision which requires the company to pay up a cool million dollars.

In a press release [PDF] the FCC says that “Univision radio stations or their employees secretly accepted payment from a record label in exchange for the radio stations giving more frequent airplay to the label’s artists, without making the disclosures to listeners required by section 507 of the Communications Act.” The Department of Justice coordinated with the Commission on the decree and accepted Univision’s plea on criminal charges that were to be filed.

Amongst the violations alleged by the government are several cases where program directors at Univision stations in El Paso, San Antonio, Los Angeles and Sacramento submitted fake invoices to Univision Music for supposed services that were never rendered, and then kept the proceeds. Univision Music Group was sold off two years ago by the broadcaster to the Universal Music Group.

Spanish-language broadcasting is one of the growth sectors in commercial radio broadcasting, and is also quite consolidated with most of the largest radio owners having a stake. For its part Univision owns 70 stations nationwide. While that doesn’t quite hold a candle to Clear Channel, it’s not too shabby either, giving the company a foothold in sixteen of the top Latino markets like Los Angeles, New York, Miami, San Jose/San Francisco, Chicago, Houston and Phoenix. So it should come as no surprise that the same slimy shenanigans would happen in this growing market. Latin music is big business and indie labels and acts pretty much no better chance of commercial radio airplay than their English-language counterparts.

One would like to think that this consent decree might result in a little more indie music hitting the Unvision owned stations, but I doubt it.

Big news for broadcasters today, as the United States Court of Appeals for the Second Circuit issued a decision striking down the FCC’s indecency policy. According to the decision, the “FCC’s current policy fails constitutional scrutiny,” in large part because it is too vague and can lead broadcasters to shy away from airing programming, effectively diminishing First Amendment rights to free speech.

The ruling comes in response to changes in both definition and enforcement of the FCC’s indecency policy over the years. In 2001 the FCC clarified its position on indecency, stating that indecent material “describe[s] or depict[s] sexual or excretory organs or activities” and would be considered “patently offensive as measured by contemporary community standards for the broadcast medium.” At the time the FCC also stated it would not take action against “fleeting and isolated” instances of swearing over the broadcast airwaves. But that policy changed after some high profile incidents during television broadcasts, such as the infamous Janet Jackson/Justin Timberlake breast exposure during the Superbowl and various unbleeped celebrity pottymouth moments during live television awards shows like the Golden Globes.

Since that time, broadcasters have complained that the FCC’s rules have been unevenly enforced and that it’s been difficult to predict what actions or utterances will lead to fines.

In light of all of this, today’s decision states:

“…the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature.

Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War.

The digestive system and excretion are also important areas of human attention. By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.

To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

Wow. This ruling is great news for both broadcasters and artists in its support for First Amendment rights and artistic freedom.

The union that represents what’s left of the radio broadcasting workforce has told the Federal Communications Commission to keep its current restrictions on how many radio stations an entity can own. The filing by the American Federation of Television and Radio Artists (AFTRA) is a reminder of how dramatically broadcast radio ownership has consolidated over the last 14 years:

“In 1996, the two largest U.S. radio group owners owned 62 and 53 stations, respectively. Today, Clear Channel Communications (Clear Channel) owns more than 800 stations, down from a high of about 1,100 in 2007. The second largest group, Cumulus Media, Inc. (Cumulus), owns about 400 stations today. The Clear Channel-Cumulus oligopoly represents a nationwide trend; the largest two radio station owners in a given market, on average, control 74 percent of the revenue. The largest one, on average, controls 46 percent.”

AFTRA adds that for radio, between the passage of the Telecommunications Act of 1996 and 2010, the number of commercial radio stations jumped by around 10 percent, while the number of station owners dropped by 40 percent.

The FCC is once again reviewing its media ownership rules. The present rule for radio is a bit complicated, but basically says that in big markets like New York or Los Angeles (45+ stations), an entity can own up to eight commercial licenses. Then the allowed number tapers down for lesser markets. In regions with 14 or fewer stations, an entity can own no more than five. The kicker is that there’s no limit on the number of commercial stations a company can own nationally. That’s why Clear Channel and Cumulus are what they now are. (more…)

FCCFREE RADIO Turns off the Transmitter

Lately there’s been a lot of buzz about the comings and goings of pirate radio stations, especially in the San Francisco Bay Area.

New station Radio Valencia is about to begin broadcasting any day now in San Francisco and pirate radio stalwart Freak Radio Santa Cruz is continuing in its mission, while looking for a new transmitter site.

On the flip side, San Francisco’s Pirate Cat Radio is sticking to the Internet, after getting fined by the FCC in 2009, while its owner is overseeing the day-to-day operations of a licensed FM community radio station an hour away from the city in rural Pescadero.

Like their rebel radio compadres in the Bay Area, FCCFREE RADIO is also in a state of transition, as they make the switch from being an unlicensed FM station to operating as an Internet broadcasting company. Things have changed a lot since I visited FCCFREE RADIO a year ago. At the time, owner John Miller and Program Director John Hell talked about their plans for the unlicensed LPFM community station in San Francisco, citing their desire to “put the local back into radio.” Since my last visit, they’ve built up their schedule and have attracted a following of listeners both online and over the terrestrial airwaves.

However, something very significant happened on May 7, 2010. They turned off the station’s transmitter.

I was eager to visit FCCFREE RADIO again to learn more about why they decided to remove the station from the FM airwaves, so on June 25th, I stopped by to revisit the station and learn more about what owner John Miller has in store.

John told me that the staff of FCCFREE RADIO voted in favor of turning off the transmitter after a recent visit by the FCC to the transmitter site. Although John exudes the confidence and bravado of a long-time underground radio broadcaster, he was clearly spooked by the latest letter from the FCC. He said, “I had the FCC at my door in record time,” adding, “They must be angry.”  After a couple of notices from the FCC, they decided to change the station’s course. He told me that times really have changed for pirate radio, saying, “Unfortunately people go to jail now.” While reminiscing about stations like Boulder Free Radio, John talked about how “they were heroes” and “did it on a grand scale,” but that they were hit extremely hard by the FCC. (more…)

Freak Radio Santa Cruz is one of the longest-running unlicensed stations in the country, in addition to having one of the highest profiles. The station has survived by pure tenacity, probably also aided by being located in the small seaside college town of Santa Cruz rather than a larger city where it would be under the nose of the FCC. That said, Freak Radio has had its run-ins with the Commission over the years. The most recent was a notice sent to the landlord of the building housing its transmitter.

Station volunteer DJ Uncle Dennis tells SantaCruz.com that

“Basically, we got a call saying the landlord had received a notice from the FCC saying a illegal transmitter was found and that he would be fined if he didn’t get rid of it…. This is a typical tactic they use to deal with unlicensed broadcasters.”

Long-time organizer and DJ Skidmark Bob confirmed the story to John at DIYmedia.net. However, John also notes that Freak Radio keeps its studio and transmitter separated, and so the station can continue its live internet stream in the interim.

In other–much more clueless–pirate news, Rhode Island’s Block Island Times reports on unlicensed WOHP (“Old Harbor Pirates”) broadcasting out what is presumably a bar called Club Soda. However, it sounds like organizer DJ Jonah the Profit is a little hazy about broadcast regulations, telling the Times that

the group isn’t breaking any regulations…. “We operate under a 100-watt frequency,” explained Profit, so as not to interfere with other stations or two-way radios. “We abide by the FCC rules(.)”

I’m not sure what a “100-watt frequency” is, but if he means they’re broadcasting with 100 watts of power on the FM dial without a license, then WOHP sure as hell is breaking regulations. Did anyone at the Block Island Times fact-check this? Anyway, I’m not sure how busy the Boston FCC office is, but with this story in the press and the DJs’ apparent lack of a clue it’s just a matter of time before the Commission pays them a visit.

Is Your Station's Underwriting in Order?

As everyone in non-commercial radio in the United States knows, there’s often a fine line between underwriting messages to indicate sponsored programming and commercial announcements.

College, community and other non-commercial radio stations are not allowed to air commercials, but they can play underwriting announcements which simply acknowledge the support received by an outside entity. It’s extremely important that underwriting adheres to guidelines set forth by the FCC and that it doesn’t veer into commercial territory.

On June 15, non-commercial, educational radio station KUFW-FM in Woodlake, California, was levied a fine (PDF) of $12,500 for repeatedly broadcasting 4 different commercial announcements in 2006. These commercials were played more than 2000 times over the air.

The FCC’s Notice of Apparent Liability to Forfeiture letter to KUFW outlines what defines a prohibited advertisement:

“Advertisements are defined by the Act as program material broadcast ‘in exchange for any remuneration’ and intended to ‘promote any service, facility, or product’ of for-profit entities. The pertinent statute specifically provides that noncommercial educational stations may not broadcast advertisements.”

Additionally, the letter explains how underwriting differs from advertising, providing examples of how an announcement can veer into illegal territory:

“Although contributors of funds to such stations may receive on-air acknowledgements, the Commission has held that such acknowledgements may be made for identification purposes only, and should not promote the contributors’ products, services, or businesses. Specifically, such announcements may not contain comparative or qualitative descriptions, price information, calls to action, or inducements to buy, sell, rent or lease.”

Owned by The National Farm Workers Service Center, KUFW is part of the Radio Campesina Network of radio stations. The network of 9 radio stations provides music and Spanish-language programming to reach ” an underserved, largely immigrant population.”

The FCC found fault with KUFW for airing commercials for Mario’s Auto Sales, Big Brand Tire, and Muebleria La Tabatia. Language in the underwriting announcements served to promote products, used comparative and qualitative language, and inducements to buy products. Here are some examples from the ads that led to the fine:

“…we find that the Mario’s Auto Sales announcement impermissibly promotes the underwriter and its product through the use of favorable and qualitative expressions such as ‘beautiful Harley Davidson light trucks,’ ‘we have it here,’ and ‘where we are proud to be Mexicans.’ This announcement also contains inducements, such as ‘whatever vehicle with no down payment.’

The two announcements for Big Brand Tire impermissibly seek to distinguish the underwriter’s products. The first announcement claims that the company’s rims ‘will make you stand out’ and ‘make your vehicle unique.’ It also uses comparative phrasing such as, ‘We have the most recent selection when it comes to rims from A to Z’ and ‘we don’t give you a cat for a rabbit here.’ The announcement also includes an inducement for free tire alignments and free flat tire repairs to encourage patronage…”

It’s extremely important that all non-commercial stations review the scripts for underwriting announcements, as the FCC strongly states in their letter to KUFW that future infractions by other stations may be dealt with even more severely:

“…we caution the Licensee and all noncommercial educational licensees that, in future cases, violations of the type encountered here may result in even harsher sanctions than we propose in this case. Licensees have an ongoing duty to understand and carefully abide by the limitations in the Act and in our rules concerning advertising on noncommercial stations.”

To help protect your station from verging into illegal commercial territory, I’d encourage you to take a close look at the FCC’s notice to KUFW (PDF). At the end of the letter are complete examples of the underwriting scripts that got the station into trouble. Additionally, there was a similar case in 2009 in which KXPW-LP (Power Radio Corporation) was also issued a Notice of Apparent Liability for Forfeiture after they aired prohibited commercial announcements. To see their illegal scripts, take a look at the FCC notice to KXPW (PDF).

The Federal Communications Commission is commissioning nine economic studies on the state of the media industry, and numbers five and six couldn’t come too soon as far as I’m concerned. Here they are:

• Study 5: Quantity of radio news and public affairs programming provided and audience for radio news programming as a function of local market structure. This study will examine provision of radio news and public affairs programming and will examine the impact of local market structure on presence of news formats.  The study may also examine station websites to determine how much news these stations provide.
• Study 6:  Local content on the Internet. The study will examine the availability and usage of local content on the Internet and analyze the impact of local market structure on the availability and usage of local Internet content.  The study shall analyze, at a minimum, the extent to which websites offering local Internet content are affiliated with local radio stations, television stations, newspapers, or other media entities and whether the degree of such affiliation varies across markets with different local market structures.

All the proposed studies are listed at the end of this post. This is part of the agency’s quadrennial review of its media ownership rules.

In all my years of covering the FCC and the Great Media Ownership Debate, one of the things I’ve noted is the lack of up-to-date data on questions like localism. Pro and anti-regulatory groups have been at each other’s throats for years on whether to require more local coverage from radio stations.

Example: this Youtube clip (see above)  of Senator Barbara Boxer’s (D-CA) tense confrontation with then FCC Chair Kevin Martin in 2007 over his handling of a study on local TV ownership patterns. But much of this discussion takes place without any concrete and vetted research on the degree to which radio stations and their Internet portals really serve the public, local coverage-wise. (more…)

FCC Commissioner Mingon Clyburn

The National Federation of Community Broadcasters just wrapped up its annual conference this past weekend in St. Paul, MN. The NFCB has been a true anchor in the community radio movement, both supporting individual stations and advocating on their behalf in DC. This year the FCC actually graced the conference, with Commissioner Mingon Clyburn giving a speech on June 10.

Commissioner Clyburn certainly let loose quite a few surprises, starting with suggesting that TV channels 5 and 6 could be reallocated for non-commercial FM radio, low-power FM or AM broadcasters. While she said that she wasn’t suggesting an immediate change, Clyburn said that, “it is time for us to take a serious look at
where these services fit within the overall spectrum plan, and that Channels 5 and 6 maybe a good home.”

The spectrum allocated to analog channels 5 and 6 sits just below the FM band’s lower limit of 88 MHz. Before the digital transition you might remember being able to hear channel 6 TV audio at the bottom end of your FM dial. Although the transition meant full-power stations lost their analog audio signal, low-power TV stations were permitted to remain analog. As I’ve reported before, there are several low-power channel 6 stations taking advantage of their proximity to the FM dial to function effectively like radio stations rather than TV.

Any reallocation of channel 5 and 6 spectrum would require dealing with the few full-power stations that chose to stay put rather than move to different spectrum space. It would also have to deal with the LPTV stations on channels 5 & 6. My guess is that these stations could be offered to move into spectrum allocated for digital, though it might take some horse trading. It’s also likely that those few LPTV stations on channel 6 are going to be very reluctant to move and give up their radio-like business, although it’s just a matter of time before the FCC kills that business model by forcing all LPTV to go digital.

Commissioner Clyburn also suggested that community stations consider the charms of HD Radio. She acknowledged that, “limited receiver penetration and the cost of digital transmission equipment may make owning an HD Radio station an unappealing option for community radio groups.” However, she also proposed that “HD can provide yet another way to promote broadcast diversity and expanded programming option.” She even suggested that community stations or groups seeking stations could partner with other commercial or non-commercial stations to program their secondary HD-2 and HD-3 channels.

It’s pretty rare for community radio to get such a courtesy call from an FCC commissioner, and all the more rare for a commissioner to drop so many bombshells. I’m cautiously optimistic to hear such support for community radio and an apparent willingness to consider an expansion of the FM band in order to accommodate more non-commercial stations. I do have to note, however, that there’s no indication that an expanded band would be only for community radio. Nevertheless, it will be interesting to see if the idea gains any traction with the full Commission.

The Federal Communications Commission is reviewing its media ownership rules again. That ordeal took up quite a bit of public bandwidth over the last decade, especially after former FCC Chair Michael Powell proposed scotching most of them. Now we’re back to square one, with the Commission launching a Notice of Inquiry about its current ownership limits, including its Local Radio Ownership Rule, which reads as follows:

“a person or entity may own, operate, or control: (1) up to eight commercial radio stations, not more than five of which are in the same service (i.e., AM or FM), in a radio market with 45 or more radio stations; (2) up to seven commercial radio stations, not more than four of which are in the same service, in a radio market with between 30 and 44 (inclusive) radio stations; (3) up to six commercial radio stations, not more than four of which are in the same service, in a radio market with between 15 and 29 (inclusive) radio stations; and (4) up to five commercial radio stations, not more than three of which are in the same service, in a radio market with 14 or fewer radio stations, except that an entity may not own, operate, or control more than 50 percent of the stations in such a market unless the combination of stations comprises not more than one AM and one FM station.”

(more…)