The remarkable aspect of Knighten’s story is that he missed his arraignment hearing earlier this month in order to attend a panel discussion about civil rights and broadcasting at the New America Foundation in Washington, DC. It’s unfortunate that Knighten was broadcasting in Florida, which is one of only three states with state laws targeting unlicensed broadcasting, and the only state which has made any arrests under statute. In most other states Knighten would only face the wrath of the FCC, which continues to have a pretty poor record in collecting fines for unlicensed broadcasting.

FCC Enforcement Actions 1997-2011

Our friend John Anderson at DIYmedia.net recently published his annual survey of anti-pirate FCC action. His findings for 2011 shouldn’t surprise anyone who has been following the subject here at Radio Survivor on or John’s site.

In fact, Commission enforcement against unlicensed broadcasters hit a 6-year low in 2011. As John reports,

From a record high of 447 enforcement actions clocked in 2009 and 2010, field agents executed just 184 in 2011, against fewer than 100 stations total. Massive drops were seen in the number of station-visits and warning letters issued.

John notes that the total amount in fines handed down by the FCC was actually the highest since 2005, $168,400. However, as this November, 2011 Radio World article would corroborate, it’s highly unlikely the agency will ever collect anything close to that dollar amount when all is said and done.

The FCC rulings have both been rebuked by the Second Circuit Court of Appeals on First Amendment grounds, hence the Supremes get the final word. Fox and friends were in full force to push the free speech line. But what struck my eye in reading the transcript were Department of Justice Solicitor General Donald B. Verrilli comments before the justices. Verrilli attempted to parry broadcaster arguments that broadcast television is no longer ubiquitous, hence Pacifica vs. FCC, the 1978 case that backed FCC indecency regulation on ubiquity grounds, is no longer relevant.

But he also warned the panel that if the high court sweeps away the FCC’s relatively new strictures against fleeting dirty talk, the decision will have the most impact on radio.

“I want to point out at the outset something I think is significant,” he began, “which is that their [the broadcaster's] argument would sweep away indecency restriction with respect to radio as well as television, and they would sweep that away in the arguments they are making today without making any showing that circumstances have changed at all with respect to the ubiquity of — or accessibility of radio.”

“And I think if one looks at the FCC orders that this Court cited in its prior decision in this case, one would see that a lot of the most vile and lewd material really is in radio. So I just want to put that marker down at the beginning here because I do think it is quite important. No showing has been made about radio.”

“I didn’t quite understand that,” interjected Justice Anthony Kennedy. “Today there’s a — there is either a potential or a fact of violent and objectionable broadcasting in radio? I didn’t quite understand your point.”

“Yes. Pacifica itself, Justice Kennedy, was a case about a radio broadcast,” Verilli noted.

“Yes, I understand that. Yes,” Kennedy agreed.

“And the Respondents are arguing in this case that Pacifica ought to be overruled because the circumstances that justified its rule no longer obtain,” Verilli continued:

“I want to put a marker in at the outset here with respect to radio because I do think it’s quite important, that they haven’t made any argument that those circumstances are any different with respect to radio. It’s just as ubiquitous as it was. There isn’t even any argument that there is blocking technology available. I want to make sure, given the kind of vile material that the record demonstrates has been transmitted over time on radio, that the Court focuses on the breadth of the argument that the Respondents are making here.”

So there you have it. Radio is where the really nasty stuff is, according to Uncle Sam. But if that’s really the case, why are all the indecency suits up before the Supremes about broadcast TV?

KCUI gets deleted

Just before winter break, college radio station KCUI officially ended its life as an FM station when its license holder, Central College, turned its class D FM license back in to the FCC. Although it was a tiny station at just 10 watts out of Pella, Iowa, it had been a fixture at the private liberal arts college since at least 1976 (when it was licensed for 10 watts at 89.1 FM).

According to FCC records, KCUI is now listed as a deleted station, with its “license cancelled and call sign deleted” by request of the license holder on December 6, 2011. The license was not set to expire until February 2013. It’s unclear what the current state of the station is on campus. KCUI’s website isn’t up-to-date, as the most recent schedule posted on the site is from 2005.

Ironically, in June 2005 KCUI had its license cancelled and call sign deleted (for the first time) by the FCC due to the fact that Central College had neglected to file a license renewal in October 2004. Central College filed a Petition for Reconsideration in 2006 and that petition was granted in January 2007. The call sign was then restored in 2007, following Central College’s belated license renewal. At the time they were also issued a Notice of Apparent Liability for Forfeiture in the amount of $7,000 for “failing to timely file a license renewal application for the Station” and for “engaging in unauthorized operation of the Station after its authorization had expired.”

Station alumni reported in April 2011 that there were rumors that Central College would be taking KCUI off the terrestrial airwaves due to the expense of running the station. Former KCUI Advisor Bonnie Dahlke said, “The station itself had few listeners and the broadcast area was less than 1 mile surrounding campus.  It was not a large operation.  It was no surprise that a decision was made to scrap it and focus on other areas.” Dahlke told me that when she was the advisor for the station between 2004 and 2006, there were only a handful of DJs. According to Dahlke, it was a challenge for students to maintain the station over the years. She said,

“At the time there were 3 senior students managing the station and maybe 5 DJs or so.  When those seniors graduated, there really wasn’t much interest amongst remaining students in leading the charge so I cobbled together a student contact or two to try to keep things going. It’s definitely not an advisor’s job at a college/university to keep a student-run initiative going and I had no expertise in media.

In 2006, the communication studies department took it back…They had several adjunct faculty advise it over the years who I have no doubt had interest and expertise but didn’t have enough time to spend chasing after student managers reminding them all the things they should be doing to keep the station going.

Meanwhile, the communication studies department was moving in a different strategic direction overall–more focused on rhetoric and theory-based curriculum than media.  When faced with budget and staffing cuts, schools of all sorts have had to make decisions regarding what they will and will not focus on.  For Central, media was left behind as there are many other colleges/universities in the area that have more to offer in those areas. Rather than trying to keep up with the Jones’, I think it was a matter of prioritizing other areas in which the school could be stronger than competitors.”

I attempted to speak with someone from Central College’s Communication Studies Department, but was unable to reach anyone prior to publication. Hopefully after the new semester begins, we will learn more about future plans for KCUI.

(1) up to eight commercial radio stations in radio markets with 45 or more radio stations, no more than five of which can be in the same service (AM or FM),
(2) up to seven commercial radio stations in radio markets with 30-44 radio stations, no more than four of which can be in the same service (AM or FM),
(3) up to six commercial radio stations in radio markets with 15-29 radio stations, no more than four of which can be in the same service (AM or FM), and
(4) up to five commercial radio stations in radio markets with 14 or fewer radio stations, no more than three of which can be in the same service (AM or FM), provided that an entity may not own more than 50 percent of the stations in such a market, except that an entity may always own a single AM and single FM station combination.

In the FCC’s latest proceeding on whether to loosen these and other restrictions, broadcasters argued that satellite radio and Internet services like Pandora make these limits less necessary. The Commission disagrees:

“Satellite radio still only serves a small portion of all radio listeners and millions of listeners do not have broadband Internet access,” the FCC says. “Moreover, these audio programming alternatives are national platforms that are not likely to respond to conditions in local markets. Therefore, we propose that our local radio ownership rule continue to focus on promoting competition among broadcast radio stations in local radio listening markets.”

Speaking personally, I think that the FCC is right about this. Services like Pandora or Last.fm have yet to demonstrate any significant local presence anywhere, as opposed to the precious core of broadcast radio stations that really serve cities, towns, and rural areas with live news and information.

But the agency is proposing to eliminate its radio/television cross ownership limits, and everybody’s definitely starting to wonder how Internet only stations and music services compare with AM/FM broadcasters, audience metrics-wise. Folks are getting pretty touchy about the issue, too. Of late, Edison Research did an audience study for Pandora that included some Average Quarter Hour share data. Around the same time, Arbitron issued a statement questioning the wisdom of comparing Internet radio log file data with Arbitron audience estimates.

“There are many areas to be carefully considered when comparing Arbitron audience estimates with those from another source,” the Arbitron commentary noted. “We advise clients to avoid comparing self-reported audience estimates from Internet music services to Arbitron radio audience estimates,” given these differences:

• The difference between “one-to-many” broadcast stations and “one-to-one” Internet music services;
• The differences between Arbitron’s published methodology and calculations for its audience estimates and the estimates used by Internet music services;
• The ability of the provider to determine if a person is completing the survey task and should be counted as “exposed” to the content; and
• The reliability of self-reported demographic data and the steps taken to validate the information.

Meanwhile, Edison hit the ceiling over an Inside Radio piece on the issue that the research group called ”grossly inaccurate.” According to the excerpt published by Edison, the Inside Radio story claimed that the Edison study ranked Pandora figures with local radio stations via Arbitron stats.

“Edison has never (as in never ) reported anything other than the AQH figures for Pandora – full stop,” Edison’s statement insisted. “We defy Inside Radio or any interested party to come up with a ‘ranker’ from Edison that compares Pandora ‘alongside’ any terrestrial radio station.”

So is the consensus that broadcast radio and the Internet remain apples and oranges? Tim Westergren of Pandora would appear to disagree. This week he told the Wall Street Journal that Arbitron’s perspective reflected a “concerted effort” to keep his company out of the broadcast radio loop. “The broadcast industry does not want the world to know about us, basically,” Westergren declared.

Actually, big radio does want to know about Pandora, it seems, to the extent they can use the specter of Internet radio to convince the FCC that it should relax its local ownership rules. That tactic clearly isn’t working, so far. But if Internet radio actually develops a serious local presence, things might change.

Spurred on by the FCC’s proposal to create an online public inspection file for television broadcasters, reporter Meredith Hoffman at the New York Times decided to check out the paper public files at a variety of New York City broadcasters, both TV and radio. Not surprisingly, but still disappointingly, the reporter encountered puzzled receptionists and staff at many studios, but not much cooperation.

The staff at the Clear Channel cluster “chided a reporter for trying to enter without an appointment and insisted she arrange a time at least one day in advance,” while the receptionist at the Emmis Communications office for two stations took down the reporter’s contact information, but nobody from the company followed up. Even representatives of NBC owned-and-operated WNBC-TV put the reporter off for a week, only complying with the request to see the file after a call to corporate. Apparently Comcast-NBC hasn’t learned anything from the $225,000 it paid to the FCC for failing to provide sufficient public access to the file at other stations.

As its name would imply, the whole point of the public inspection file is that it is supposed to be available for the public to come in and inspect. The FCC requires that it be accessible during normal business hours, without having to make an appointment. Inside the file are documentation of a station’s public service programming, copies of its license and ownership reports and other items relevant to a station’s authorization to broadcast and observance of the public trust. As the Times article plays for levity, stations are also required to keep copies of correspondence from the public in the file.

While the complaints of a viewer who wrote a station regarding a news person’s attire may make the public file seem trivial, the fact is the majority of the file’s contents are not so trivial. Even reading comments from other viewers or listeners may in fact provide a fuller picture about ongoing or persistent problems at the station. While many broadcasters whine about the burden of maintaining the public inspection file, when you take into consideration the fact that most of them pay absolutely nothing for their valuable license to broadcast it hardly seems like much of a burden at all.

I am pondering the merger names as I compose this post:

Clear Citadus?
Cumulo Citichannel?
Citaclear Channelculus?

My meditation is inspired by Clear Channel’s announcement on Monday that Cumulus’ 570 radio stations will be featured on the former company’s iHeartRadio application “wherever it is offered.”

In exchange:

Clear Channel Radio will also advertise daily deals from Cumulus Media’s SweetJack, the rapidly growing deals platform that provides local merchants – including the best restaurants, spas, salons, stores and venues—the promotional power of radio.

Obviously, this alliance will boost Clear Channel’s already preponderant advertising power—a by-product of its owning multiple stations in multiple local markets. But on top of that, Cumulus (which just dumped indie DJ Jim Ladd in LA) has the green light from the Federal Communications Commission to snarf down the third largest radio chain: Citadel.

Here was FCC Commissioner Michael Copps’ reaction to the mid-September move:

The wheels of media consolidation spin on. Today the Media Bureau approves the combination of Cumulus and Citadel, the number two and number three radio companies in the country, creating a media giant that will own more than 560 stations. Earlier this year we had the huge Comcast-NBCU transaction. Last week we learned of another large company buying up seven additional media outlets. Time after time and in market after market, there are fewer independent options and fewer local voices.

To satiate the FCC and Department of Justice, Cumulus-Citadel will only have to sell off 14 licenses. So basically Cumulus will gobble up Citadel’s 228 stations to create a 570 + 228 = 798 – 14 = 784 station empire, which will launch collaborative ad campaigns with Clear Channel, which owns around 850 stations.

The effective combined advertising entity will represent about six percent of the 10,102 commercial AM and FM stations in the US, but doubtless control a much larger swath of ad revenue in local markets. How big a percentage? The last time the FCC checked in 2007, Clear Channel and Cumulus already enjoyed 74 percent of the radio advertising revenue in Arbitron Metro regions.

Thus, while there doesn’t seem to be any plan for a formal merger of the two remaining giants, an effective ad income duopoly appears to be in the making. This is great news if you are rooting for corporate radio to compete with Groupon and Livingsocial. Maybe not so grand if you’re worried about those other local commercial radio stations out there treading financial water.

So let’s see:

Citacum Channel? CCC-C? Radio Survivor readers are invited to submit their own names and logos.

The 2011 survey team managed to contact 149 LPFM stations. Among the study’s findings: 31 percent of the stations reported no income from underwriting. Another 32 percent disclosed that between one to 25 percent of their budget came from underwriting. Nine percent acknowledged that 26 to 50 percent of their budget came from underwriting.

Bottom line: 72 percent of these signals reported that less than 50 percent of their income came from an underwriting source.

source: Prometheus Radio

“Based on the budget ranges provided by the stations which answered this question, we calculate the total number of underwriting dollars for these respondents as $947,000,” Prometheus’s Brandy Doyle writes. “If these responses hold for all LPFM stations, then the underwriting revenue for the LPFM service as a whole would be approximately $7,284,615. To put this in context of commercial broadcast radio advertising revenue, this number represents .0005% of the over $15 billion in revenue for U.S. commercial radio in 2010, a negligible amount.”

Thus, “LPFM stations are highly unlikely to have a detrimental economic impact on full power commercial stations.”

Why is this even a question? Prometheus filed the data in an FCC proceeding titled the “Economic impact of Low-Power FM Stations on Full-Service Commercial FM Stations.” Congress required the Commission to conduct the inquiry when it authorized more LPFM stations earlier this year. If you’ve been waiting for the National Association of Broadcaster’s shoe to drop, here it comes.

In its comments in the proceeding, the NAB wants the FCC to pay particular attention to the impact that new LPFM’s might have on commercial “niche” stations:

NAB agrees that some advertisers who now reach minority or niche audiences over commercial stations may divert their radio budgets to underwriting of LPFM stations. Even if that does not occur, however, a lowpower station that diverts audiences from a full-service station will reduce the full-service station’s advertising revenues because the full-service station may no longer garner as many listeners, regardless of whether particular advertisers choose to support the LPFM station. Particularly for full-service stations serving niche audiences, the loss of listeners may reduce advertising revenues to a point where the station is no longer financially viable or where it would be forced to change to a more mainstream format.

To which Prometheus responds:

The Commission’s role is not to protect incumbent stations from competitors, but to ensure that licensees serve the public interest. The LPFM service is relatively new, and has been hampered by restrictions that relegate LPFM stations to rural areas. It is our hope that both existing and future LPFM stations will continue to grow in their community impact, and in some cases, this growth will include larger budgets and increased revenue from underwriting. Such growth will likely create a positive economic impact in the communities where stations are located. In the long term, new LPFM stations may indeed have a positive economic impact on their full power commercial neighbors as well, by pushing radio to return to its roots of local community service and keeping broadcasting relevant.

EAS at KFJC

Here in Wisconsin, radio stations broadcast 30 seconds of garbled audio that effectively degenerated into static. Similar results have been reported in Pennsylvania, Tennessee, Rhode Island, and Kentucky. In parts of California and South Carolina, the EAS message was apparently cued more than once, leading to a loop/echo effect.

In parts of Texas and Ohio, there was simply silence between the alert and end-of-message tones. Elsewhere in Texas, as well as in parts of Oregon, Alabama, Connecticut and Georgia, broadcasters never got the alert at all.

David Oxenford at the Broadcast Law Blog notes that the FCC will be relying upon stations’ reports to help diagnose and resolve these problems. He emphasizes that,

the FCC stated that it was not intending that the reporting system be a way to punish stations whose facilities did not receive or transmit the test, but instead to be a diagnostic tool to determine whether or not the system worked. So the failure to file the forms to report on the success of the test on your stations is much more likely to bring an FCC enforcement action against your station than is reporting that, for one reason or another, the test did not work.

The EAS system is essentially a daisy-chain, where one station’s alert signal triggers a receiver at another station, which can, in turn, trigger another one. Not every station’s alert is set to trigger another one in the chain. In general, bigger, more powerful stations are responsible for alerting less powerful ones. Given such a set up, it’s easy to see how just some interference, reception problems or other minor glitches can have a ripple effect. One station’s misfire can cause a whole area to go unalerted.

It will be interesting learn what the specific diagnoses of many of the problems were, and how they might be resolved. We should be hearing from the FCC on this issue in the coming months.

Damon Penn, a senior official with FEMA and Jamie Barnett, a senior official with the FCC released a joint statement about the test this afternoon, indicating that it was successful some places, not so successful other places. No stats have been released yet, so here’s what the FCC and FEMA say:

“The Nationwide EAS Test served the purpose for which it was intended – to identify gaps and generate a comprehensive set of data to help strengthen our ability to communicate during real emergencies. Based on preliminary data, media outlets in large portions of the country successfully received the test message, but wasn’t received by some viewers or listeners. We are currently in the process of collecting and analyzing data, and will reach a conclusion when that process is complete.”

The Commission does say that over 30,000 broadcasters and communication service providers participated in the test, so there is quite a bit of data to crunch. These participants will be sending their feedback to the FCC over the next few weeks.

Although it represented a bit of an inconvenience to broadcasters, I think the test was a good idea, since nothing of the sort has been performed since the modern EAS system went online fifteen years ago.

Providing vital information during national disasters and other emergencies in a crucial role for our broadcast media, especially radio. It is important that stations be able to quickly transmit emergency communications, and I hope that this national test provides guidance for clearing up any gaps in service.

The FCC is currently down one commissioner due to Republican Meredith Atwell Baker stepping aside last spring. Democrat Michael Copps is on an “extended term” that is set to end at the end of this Congressional term. So the FCC is due to be getting by on just three commissioners by the time the new year rolls around.

Surprising just about nobody inside the beltway, President Obama nominated two experienced policy wonks with prior commission experience to fill these vacancies, Democrat Jessica Rosenworcel and Republican Ajit Varadaraj Pai. Rosenworcel served for a time as an advisor to Copps, who has been the strongest advocate for the public interest on the FCC in the last decade.

Pai served as Deputy General Counsel to former FCC chairman Kevin Martin, who tried to balance out the boneheaded consolidation-happy tendencies of his predecessor, Michael Powell, but also exhibited his own brand of ham-handedness when it came to issues of ownership regulation and localism. That said, I don’t think we can necessarily use the positions of their former bosses to predict the likely stances of either of these nominees.

Putting aside Clear Channel’s recent begging to further erode ownership rules, I doubt that we’ll see much change in the FCC’s trajectory with regard to broadcast radio if they are both confirmed by the Senate. I’ll be surprised if we see much modification from the Commission’s current proceeding on balancing LPFM expansion with new translator licenses, and even more surprised if either new commission has much influence on the outcome. Provided Rosenworcel is confirmed, there will continue to be a Democratic majority, which will be friendly to LPFM.

The policies that will most affect radio and audio media have to do with the wired, wireless and mobile broadband. Our ability to listen to streaming online radio is utterly constrained by mobile broadband data limits, which in just the last couple of years have gone from unlimited to much more limited. Data caps also matter for home cable and DSL internet, although the smaller bitrates required for streaming audio aren’t as threatened as bandwidth-intensive streaming video.

This is all affected by network neutrality and whether or not broadband providers, wired or mobile, are permitted to determine how much data we use based upon what kind of data it is and who is providing it. Our ability to listen to hours of streaming radio might be encumbered if our broadband provider decides to impose stricter limits on stations or sites that it doesn’t have some kind of contract with.

These are the issues which the new FCC commissioners will have the most impact on. However, as Public Knowledge’s Harold Feld points out, neither Pai nor Rosenworcel have released much in the way of a public record indicating their stances on hot regulatory issues. Feld describes them as, “workhorse wonks – willing to put a lot of time and effort into understanding complex issued before making any kind of decision.”

However, Pai’s and Rosenworcel’s path to the FCC is already threatened, though not due to anything about the candidates themselves. Sen. Chuck Grassley (R-Iowa) says he will object to their confirmation over the fact that the Commission has yet to turn over documents related to the wireless company Lightsquared. The company plans to launch a wholesale mobile broadband service, but is dealing with data that indicates its service interferes with GPS signals. Republic lawmakers are concerned that the Obama administration may be intervening to help Lightsquared overcome these technical roadblocks.

Sen. Grassley requested documents back in April, and he plans to place a hold on the confirmations until the information is turned over. In a July 26 letter to Grassley, FCC Chairman Julius Genachowski said the Commission only responds to such requests coming from committee chairs.