Radio Survivor

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…)

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…)

I wonder if anyone remembers  the last condition that Sirius XM agreed to meet in order to get the government’s permission to merge. If you recall, click here and we’ll send you a free, lifetime subscription to Radio Survivor. If not . . .

Back in July of 2008, Sirius XM agreed to lease out four percent of its combined full time audio channels—a minimum of twelve channels all told—to “qualified entities,” which everyone presumes means minority broadcasters. A whole lot of candidates have offered to take these channels, but there’s a problem. The FCC has to come up with a process that doesn’t get it sued for establishing an unconstitutional ethnic quota system, or something like that.

So the Commission has been kicking this little monster down the road for almost two years. But a new filing in the Sirius docket suggests the agency may finally be getting its act together (hope springs eternal).

During a phone conversation, one channel candidate reports in his ex parte statement, an agency staffer “stated [that] the FCC had been working through several issues regarding whom, what and or how the Qualified Entity or Entities would be granted the proposed channels. She also hinted that the FCC had been working through several of the issues including Adarand and an application process that is being devised to be implemented.”

You’re probably wondering what that italicized word means. In the Supreme Court case Adarand vs. Pena (1995) the court ruled that Federal affirmative action minority contractor programs must be based on “strict scrutiny.” That is, if they employ racial and ethnic criteria, they have to demonstrate that the racial/ethnic group receiving favor has historically and/or presently faced a disadvantaged situation. The program can’t just be based on race alone.

So, generally speaking, government agencies now do what are called “Adarand Studies” to justify their affirmative action programs. Perhaps that or something like it is being planned here. It should be noted that that summary of this conversation did not come from the FCC but from a channel applicant. But it does seem like the Commission is still trying to get this program going, and may even succeed prior to Howard Stern’s 95th birthday.

Lynn Parsons of Smooth Radio London

It will be interesting to see what Ofcom, the United Kingdom’s broadcast regulatory agency, says about GMG Radio, aka “Smooth Radio” of London and North West’s request to pare down its jazz format. Here’s the gist of the request for the stations (I’ve added the bold):

“Current Character of Service

AN EASY LISTENING STATION FEATURING EASY LISTENING MUSIC INCLUDING JAZZ, SOUL, BLUES AND R&B TARGETING A NORTH-WEST AUDIENCE AGED 50-PLUS, AND BROADCASTING 45 HOURS A WEEK OF SPECIALIST JAZZ PROGRAMMES

Proposed Character of Service

AN EASY LISTENING STATION FEATURING EASY LISTENING MUSIC AND LIFESTYLE ORIENTED SPEECH, TARGETING A NORTH WEST AUDIENCE AGED 50-PLUS, AND BROADCASTING 12 HOURS A WEEK OF SPECIALIST MUSIC PROGRAMMES“

As you can see, it’s those “specialist jazz programmes” that GMG wants to retrench, scheduling what’s left before midnight and during weekend afternoons. (more…)

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…)

source: wikimedia commons

The Federal Communications Commission’s long awaited Order to fix interference problems between Sirius XM [SIRI] and the neighboring Wireless Communications Services (WCS) band is published. Here’s hoping it will at long last resolve this feud, and allow for peaceful coexistence on the 2.3 MHz band. At least that’s the idea, says FCC Chair Julius Genachowski.

“I am pleased that by taking a fresh look at the WCS rules, we are able to create an environment for innovative, cutting-edge mobile products and services in a spectrum band that has essentially remained fallow for years,” Genachowski said on Thursday, “while still protecting adjacent band services from harmful interference and providing important clarity about the long-term operation of satellite radio terrestrial repeaters.”

We’ve been covering this issue for months here at Radio Survivor (see links to related stories at bottom of this piece), and we’ll spare you the hairy technical details. The Order sets up permanent rules for Sirius’s terrestrial repeaters and power level limits for WCS mobile and portable stations.

So now 25 MHz of WCS band is unleashed for wireless broadband, which is kind of exciting!  The FCC’s Order says that WCS license holders have to get moving:

“For mobile and point-to-multipoint services, WCS licensees must serve 40 percent of a license area’s population within 42 months, and 75 percent within 72 months. For fixed point-to-point services, WCS licensees must construct and operate 15 point-to-point links per million persons in a license area within 42 months, and 30 links within 72 months, together with a minimum payload capacity to ensure that the spectrum is used intensively. Licensees will not be required to satisfy submarket construction requirements.”

Here’s hoping that everybody will accept this as a workable compromise.

A gaggle of major Internet content companies say they support the Federal Communications Commission’s proposed new net neutrality rules, and the signers of their letter include Sony Electronics.

“This framework will ensure that consumers have access to an open Internet, one that would preserve a level playing field for all participants,” they write. “And it does so without regulating the Internet but only applying basic rules of the road to the transmission services that provide access to the Internet.”

Other backers include Amazon.com, eBay, and Skype, all directly or indirectly involved in online audio, streaming radio, or the retailing of radio gear. I am betraying my age when I note that when I think about Sony, it’s not the PS3 that first comes to my mind, but the transistor radio revolution of the 1960s. That’s what put Sony on the international map, of course.

The FCC’s proposed new open Internet rules come in the wake of the agency’s recent legal defeat by Comcast. A DC appeals court rules that the Commission didn’t have the authority under Title I of the Communications Act’s “ancillary” powers to sanction the ISP for P2P throttling. So FCC Chair Julius Genachowski says he’s going to go with a “third way” approach— something between trying to squeak by on other sections of Title I or just declaring ISPs to be Title II common carriers, like telephone companies, thus subject to telecommunications services anti-discrimination rules. (more…)

source: wikimedia commons

The Catholic Radio Association has a serious problem with the Federal Communications Commission helping Native American tribes get more radio stations. That’s putting it mildly. As we’ve reported, in Febuary the FCC ruled that Federally recognized Native American Tribes and Alaska Native Villages who apply for AM or FM radio stations will get ‘Tribal Priority’ (here’s the decision). Tribal Priority means precedence for their applications or for companies controlled by tribes that want to set up stations intended to serve tribal land areas.

Here’s some of CRA’s response:

“The CRA opposes a regulatory regime wherein descendants of the indigenous tribes living in pre-colonial America (for convenience, we reference such persons hereinafter as ‘American Indians’) are afforded a preference over descendants of ethnic, racial, or national identities less fashionable among elites.”

And:

“CRA members – and indeed most Americans – believe that we are a people ‘of all nations.’ We therefore greet with great trepidation any regulatory scheme that proceeds from the flawed premise that some groups — defined on racial or ethnic grounds – will prove more responsive to the distinct concerns of members of the same race or ethnicity. The ongoing rebuttal of truth claims premised on common racial or ethic identity has been an important component of American history, as has been the competition of political advocates and faith communities in the marketplace of ideas. We fear the new tribal preference ignores the lessons learned from both of these threads in the American legacy.”

The filing makes a number of technical objections to the FCC’s Order. Specifically, it argues that giving this preference to tribes that do not govern reservations is unconstitutional. “In addition, a tribal preference for American Indians will hold up the concerns of traditional American Indian religions over those of other religious messages, i.e., those of Catholic broadcasters,” CRA insists, a policy that the group thinks runs afoul of the First Amendment’s Establishment Clause.

(more…)

KPDO Launches in Pescadero

In an interesting turn of events, San Francisco’s Pirate Cat Radio (PCR) will be providing programming for a new full power FM community radio station down the coast in Pescadero that is launching tomorrow.

Fined by the FCC for broadcasting over FM without a license, Pirate Cat Radio has been operating as a web-only station since last fall. In March Pirate Cat Radio founder Monkey announced on the Pirate Cat website that he was named General Manager of Pescadero community radio station KPDO and that he planned to “utilize most of Pirate Cat Radio’s 53 radio shows as content for KPDO, until a formal studio is built in Pescadero.” Over the past few months, Pirate Cat Radio DJs have been announcing the call letters KPDO over their netcast in advance of this week’s launch of the KPDO webcast.  The terrestrial broadcast launch of KPDO at 89.3 FM in Pescadero will be May 1, 2010.

This week Pirate Cat Radio DJ Russel Forster outlined this transition in a blog post for the SF Underground Radio Examiner. He writes: (more…)