[Federal Register: August 15, 2007 (Volume 72, Number 157)]
[Rules and Regulations]
[Page 45670-45693]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au07-19]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-325; FCC 07-33]
Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission adopts rules to foster the
development of a vibrant terrestrial digital radio service for the
public and to ensure that radio stations successfully implement digital
audio broadcasting. The Commission's goals in this Second Report and
Order are to begin to adopt service rules and other requirements for
terrestrial digital radio.
DATES: Effective September 14, 2007, except for the rules in 47 CFR
73.404(b), 47 CFR 73.404(e), and 47 CFR 73.1201, which contain
information collection requirements that have not been approved by OMB.
The Federal Communications Commission will publish a document in the
Federal Register announcing the effective date.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Brendan Murray, Brendan.Murray@fcc.gov of the Media
Bureau, Policy Division, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order, First Order on Reconsideration, and Second Further
Notice of Proposed Rulemaking, FCC 07-33, adopted on March 22, 2007,
and released on May 31, 2007. The full text of this document is
available for public inspection and copying during regular business
hours in the FCC Reference Center, Federal Communications Commission,
445 12th Street, SW., CY-A257, Washington, DC 20554. These documents
will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/).
(Documents will be available electronically in ASCII, Word 97, and/or
Adobe Acrobat.) The complete text may be purchased from the
Commission's copy contractor, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. To request this document in accessible formats
(computer diskettes, large print, audio recording, and Braille), send
an e-mail to fcc504@fcc.gov or call the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Initial Paperwork Reduction Act of 1995 Analysis
This document contains modified information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB)
for review under Section 3507(d) of the PRA. The Commission will
publish a separate Federal Register Notice seeking public comments on
the modified information collection requirements. Therefore, OMB, the
general public, and other Federal agencies will be invited to comment
on the modified information collection requirements contained in this
proceeding once the Federal Register Notice is published. In addition,
we note that pursuant to the Small Business Paperwork Relief Act of
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously
sought specific comment on how the Commission might ``further reduce
the information collection burden for small business concerns with
fewer than 25 employees.''
In this present document, we have assessed the effects of easing
the filing requirements imposed on entities that wish to implement
IBOC, and find that the steps taken will reduce paperwork burdens on
small entities because they will no longer be required to seek prior
authorization to implement certain technologies for use with digital
audio broadcasting.
Summary of the Report and Order
I. Introduction and Executive Summary
1. In the Digital Audio Broadcasting Report and Order, we selected
in-band, on-channel (``IBOC'') as the technology enabling AM and FM
radio broadcast stations to commence digital audio broadcasting
(``DAB''). We note that in this Second Report and Order as well as in
the Second Further Notice of Proposed Rulemaking (published elsewhere
in this issue), DAB generally refers to the digital service broadcast
by radio stations whereas IBOC generally refers to the technical system
supporting DAB service. This terminology, and the subject matter
discussed herein, applies to terrestrial over-the-air broadcasting.
Satellite radio service, offered by XM and Sirius, is not a subject
under consideration in this proceeding. In the DAB R&O, we adopted
notification procedures allowing existing AM and FM radio stations to
begin digital transmissions immediately on an interim basis using the
IBOC system developed by iBiquity Digital Corporation (``iBiquity'').
We concluded that the adoption of a specific technology would
facilitate the development of digital services for terrestrial
broadcasters. We deferred consideration of final operational
requirements and related broadcast licensing and service rule changes
to a future date. In a Further Notice of Proposed Rule Making
(``FNPRM''), 69 FR 27874, we addressed issues left unresolved in the
DAB R&O, 69 FR 78193, and sought comment on what changes and amendments
to Part 73 of the Commission's rules were necessary to facilitate the
adoption of DAB.
2. Through this proceeding, we seek to foster the development of a
vibrant terrestrial digital radio service for the public and to ensure
that radio stations successfully implement DAB. Our statutory authority
for implementing these goals is derived from, inter alia, Sections 1,
4, 303, 307, 312, and 315 of the Communications Act. Our goals in this
Second Report and Order are to begin to adopt service rules and other
requirements for terrestrial digital radio. However, we find it
necessary to ask additional questions, in a Second Further Notice of
Proposed Rulemaking, on how to preserve free over-the-air radio
broadcasting while permitting licensees to offer new services on a
subscription basis. We also resolve and dispose of several petitions
for
[[Page 45671]]
reconsideration that were filed in response to the DAB R&O.
3. In summary, the Commission, in this Second Report and Order,
First Order on Reconsideration, and Second Further Notice of Proposed
Rulemaking:
Refrains from imposing a mandatory conversion schedule for
radio stations to commence digital broadcast operations;
Allows FM radio stations to operate in the extended hybrid
digital mode;
Requires that each local radio station broadcasting in
digital mode provide a free over-the-air digital signal at least
comparable in audio quality to its analog signal;
Continues to require that the main digital broadcast
stream simulcast the material aired on the analog signal;
Adopts a flexible bandwidth policy permitting a radio
station to transmit high quality audio, multiple program streams, and
datacasting services at its discretion;
Allows radio stations to time broker unused digital
bandwidth to third parties, subject to certain regulatory requirements;
Applies existing programming and operational statutory and
regulatory requirements to all free DAB programming streams, but defers
the issue of whether and how to apply any specific new public interest
requirements;
Authorizes AM nighttime operations and FM dual antenna
configurations;
Considers and addresses other technical matters, such as
FM translator and booster operations and TV Channel 6 interference
issues;
Defers discussion of whether the Commission should impose
content control requirements that would prevent listeners from
archiving and redistributing digital musical recordings transmitted by
digital broadcast stations;
Recognizes that further negotiations between the United
States and the international community are taking place to resolve
possible disputes about the implementation and operation of DAB by
domestic radio stations;
Dismisses several pending Petitions for Reconsideration
and Petitions for Rulemaking that asked, inter alia, the Commission to
reconsider the adoption of iBiquity's IBOC system as the technology
chosen for DAB transmission;
Seeks further comment on appropriate limits to the amount
of subscription services that may be offered by radio stations.
II. Background
A. In-Band On-Channel Technology
4. IBOC technology makes use of the existing AM and FM bands (In-
Band) by adding digital carriers to a radio station's analog signal,
allowing broadcasters to transmit digitally on their existing channel
assignments (On-Channel) while simultaneously maintaining their analog
service. iBiquity's IBOC DAB technology enables radio stations to
provide enhanced sound fidelity, improved reception, multiple audio
streams, and new data services. It permits the transmission of near-CD
quality audio signals on the FM band, and improved fidelity on the AM
band, to digital-ready radio receivers along with information services,
such as station, song and artist identification, stock and news
updates, and local traffic and weather bulletins. These digital signals
are free from the static, hiss, pops, and fades associated with the
current analog system. iBiquity's IBOC technology will also allow for
new radios to be ``backward and forward'' compatible, allowing them to
receive existing analog broadcasts from stations that have yet to
convert and digital broadcasts from stations that have converted.
Existing analog radios will continue to receive analog broadcast
signals.
5. The iBiquity IBOC system evaluated by the DAB Subcommittee of
the National Radio Systems Committee (``NRSC'') are ``hybrids'' in that
they permit the transmission of both analog and digital signals within
the spectral emission mask of a single AM or FM channel. In the hybrid
mode, the iBiquity IBOC system places digital information on
frequencies immediately adjacent to the analog signal. The digital
signals are transmitted using orthogonal frequency division
multiplexing (``OFDM''). The FM IBOC system has an extended hybrid
mode, providing greater digital capacity than the hybrid mode. The IBOC
system is also designed to eventually permit radio stations to convert
to an all-digital mode of operation. The IBOC system uses perceptual
coding to discard information that the human ear cannot hear. This
reduces the amount of digital information, and as a result, the
frequency bandwidth required to transmit a high-quality digital audio
signal. In addition, the IBOC system in hybrid mode is designed to
blend to analog when digital reception fails. This blending feature
eliminates a digital ``cliff effect'' that would otherwise result in
the complete and abrupt loss of reception at locations where the
digital signal fails.
B. The Regulatory Development of Digital Audio Broadcasting
6. In 1990, the Commission first considered the feasibility of
terrestrial and satellite digital radio services. As to the former, the
Commission concluded that the digital terrestrial systems then under
consideration were undeveloped and that it was premature to engage in
discussions regarding DAB standards, testing, licensing, and other
policy issues. In 1999, the Commission, recognizing new technological
developments and innovations, commenced this proceeding to foster the
adoption of a DAB system and develop a record regarding the legal and
technical issues raised by the introduction of DAB. In the DAB NPRM,
the Commission, inter alia, proposed criteria for the evaluation of DAB
models and systems and considered certain DAB system testing,
evaluation, and standard selection issues.
7. In the DAB R&O, the Commission selected the hybrid AM and FM
IBOC system tested by the NRSC as the de facto standard for interim
digital operation. As of the effective date of the DAB R&O, we stated
we would no longer entertain any proposal for digital radio
broadcasting other than IBOC. We found that IBOC was the best way to
advance our DAB policy goals. We also found that this technology was
supported by the broadcast industry and was the only approach that
could be implemented in the near future. We recognized that the IBOC
system was spectrum-efficient because it can accommodate digital
operations for all existing AM and FM radio stations with no additional
allocation of spectrum. The NRSC tests, as explained in the DAB R&O,
showed that both AM and FM IBOC systems offer enhanced audio fidelity
and increased robustness when encountering interference and other
signal impairments. The tests also indicated that coverage for both
systems would be at least comparable to analog coverage. We stated that
audio fidelity and robustness will greatly improve when radio stations
move to all-digital operations.
8. We established the following requirements for radio stations in
the DAB R&O: (1) During interim IBOC operations, stations must
broadcast the same main channel program material in both analog and
digital modes; (2) interim IBOC facilities must use the station's
authorized antenna system; a public notice seeking comment on the use
of a dual FM antenna system was issued by the Media Bureau after the
DAB R&O was released. The Media Bureau approved the use of separate FM
[[Page 45672]]
antennas in 2004; (3) due to interference concerns, stations
implementing IBOC must communicate to the Commission the transmitter
power output (for both analog and digital transmitters, if applicable)
and must certify that the analog effective radiated power remains
consistent with the station's authorization; (4) pending adoption of
final rules, a licensee's authorization to transmit IBOC signals may be
modified or cancelled by the Commission without prior notice or a right
to a hearing to eliminate objectionable interference; and (5) IBOC AM
stations may only operate during daytime hours.
9. In the DAB FNPRM, our goal was to create a record that would
lead to permanent DAB policies and requirements. We sought public input
on several issues related to digital audio broadcasting. Specifically
we sought comment on: (1) The appropriate policies the Commission may
adopt to encourage radio stations to convert from an analog-only radio
service to a hybrid analog/digital radio service, and, eventually, to
an all-digital radio service; (2) the types of digital services the
Commission should permit radio stations to offer; (3) how noncommercial
educational (``NCE'') FM and low power FM stations may provide digital
radio service to the public; (4) how the Commission's existing
programming and operational rules should be applied to DAB; and (5)
what changes and amendments to the Commission's technical rules are
necessary to further the introduction of DAB.
10. In the DAB NOI, we asked whether the transmission of digital
radio signals, as a free over-the-air service, would create an
environment for persons to engage in indiscriminate recording and
Internet redistribution of musical recordings that are part of
unencrypted free digital audio broadcasts and sought comment on how
this matter should be addressed. On this point, we have been informed
that interested parties are attempting to resolve this issue through a
marketplace solution. We encourage this approach. Accordingly, we will
defer further action on this issue at this time. In the DAB NOI, we
also raised for comment whether there were international broadcast
treaty matters that needed to be addressed at this time to ensure that
DAB is successfully implemented in the United States.
C. Radio Statistics
11. As of August 1, 2005, approximately 900 radio stations have
entered into licensing agreements with iBiquity for its IBOC
technology. As of September 30, 2005, there were 10,973 commercial
radio stations, as well as 2,626 FM educational radio stations in the
United States. Of the commercial stations, 6,215 were FM stations and
4,758 were AM stations. There were also 3,920 FM translator and booster
stations. Currently, 1,272 stations (195 AM and 1,077 FM) are
authorized by the Commission to broadcast using the IBOC system, and
approximately 700 FM stations have requested and received special
temporary authority for multicasting. These stations are mostly located
in the top 50 markets in the country and reach 60 percent of all
potential listeners. At least 10 stations are on the air in each of the
following markets: Los Angeles, Chicago, San Francisco, Boston, Detroit
and Atlanta. Approximately, 85 percent of the IBOC stations on the air
are FM stations and 15 percent are AM stations. iBiquity has announced
that 21 of the nation's top radio broadcast groups have committed to
accelerate broadcast conversion of 2,000 AM and FM stations to IBOC
technology. Clear Channel Communications, Entercom and Cox Radio have
all made substantial commitments to convert many of their stations to
digital over the next few years. Moreover, ten of the largest radio
firms have formed a strategic alliance to coordinate the rollout of
DAB. This effort includes the coordination of multicast formats,
securing digital automotive receiver designs, and lowering the price
points for digital radio receivers.
III. Policies and Rules for DAB
A. The DAB Standard
12. In the DAB R&O, we stated that the adoption of a DAB standard
will facilitate an efficient and orderly transition to digital radio,
and we supported a public and open standard-setting process. In the DAB
FNPRM, we encouraged the NRSC to provide us with information on the
standard setting process as events warrant. On April 16, 2005, the NRSC
announced approval of the initial NRSC IBOC standard known as NRSC-5.
The standard is based on iBiquity's IBOC technology. In the iBiquity
system, audio source coding and compression are handled by iBiquity's
HD codec. NRSC-5 does not include specifications for audio source
coding and compression. iBiquity has committed to license all patents
necessary to implement NRSC-5, either with or without the HD codec. It
is also possible within the NRSC-5 standard to use audio source coding
and compression schemes other than iBiquity's HD codec. On May 18,
2005, the NRSC submitted NRSC-5 to the Commission for consideration and
evaluation. A Public Notice seeking comments on the NRSC-5 standard was
issued by the Media Bureau on June 16, 2005. Following the close of the
comment cycle in August 2005, we will review the filings and then take
further action. The NRSC adopted the NRSC-5-A IBOC broadcasting
standard in September 2005. The NRSC-5-A IBOC standard adds sections
concerning Advanced Application Services and a new reference document
to the NRSC-5 IBOC standard, but the NRSC has not yet submitted the
NRSC-5-A IBOC standard to the Commission for review. While our
consideration of the NRSC-5 IBOC standards is continuing, we find that
it is in the public interest to adopt certain policies, rules, and
requirements for digital radio before we have completed our evaluation
of the standards. Radio stations and equipment manufacturers need to
move forward with the DAB conversion, and we need not wait until after
final action is taken on the IBOC standards to provide such guidance to
them.
B. Conversion Policy
13. In the DAB FNPRM, we sought comment on the pace of the analog
to digital radio conversion and the possibility of an all-digital
terrestrial radio system in the future. We noted that Congress codified
December 31, 2006, as the analog television termination date with
certain exceptions, and we recognized that there is no analogous
congressional mandate for the termination of analog radio broadcasting.
We stated that the Commission has not considered a date certain as to
when radio stations should commence digital broadcast operations
because radio stations, unlike television stations, are not using
additional spectrum to provide digital service. We also stated that
band-clearing is not an issue. Based on these factors, we found that
there was no immediate need to consider mandatory transition policies
of the type contemplated with respect to DTV. However, we recognized
the spectrum efficiencies and related new service opportunities
inherent in the IBOC system. As such, we sought comment on what changes
in our rules would likely encourage radio stations to convert to a
hybrid or an all-digital transmission system and asked whether the
government, the marketplace, or both should determine the speed of
conversion from analog to hybrid and, eventually, to all digital radio
service. We also asked whether we should conduct periodic reviews, in
terms of the number of DAB receivers on the market and DAB stations on
the air, to
[[Page 45673]]
help us decide how to set policy as the conversion to digital audio
broadcasting moves forward.
14. Commenters generally support a marketplace transition to
digital audio broadcasting. For example, the State Broadcasters
Associations (``SBAs'') states that the Commission should allow market
forces to govern the adoption of DAB by the radio industry and that no
station should be required to adopt IBOC or any other digital
technology. The Public Interest Coalition (``PIC'') agrees that the
market should govern the pace of the DAB transition. PIC states that
allowing market forces to guide the digital radio transition will
permit stations to convert at a pace dictated by their own needs.
15. We will not establish a deadline for radio stations to convert
to digital broadcasting. Stations may decide if, and when, they will
provide digital service to the public. Several reasons support this
decision. First, unlike television licensees, radio stations are under
no statutory mandate to convert to a digital format. Second, a hard
deadline is unnecessary given that DAB uses an in-band technology that
does not require the allocation of additional spectrum. Thus, the
spectrum reclamation needs that exist for DTV do not exist here.
Moreover, there is no evidence in the record that marketplace forces
cannot propel the DAB conversion forward, and effective markets tend to
provide better solutions than regulatory schemes.
16. iBiquity argues that in the early stages of the transition, the
Commission should favor and protect existing analog signals. It states
that this could be accomplished by limiting the power level and
bandwidth occupancy of the digital carriers in the hybrid mode. At some
point in the future, when the Commission determines there is sufficient
market penetration of digital receivers, iBiquity asserts that the
public interest will be best served by reversing this presumption to
favor digital operations. At that time, broadcasters will no longer
need to protect analog operations by limiting the digital signal and
stations should have the option to implement all-digital broadcasts. We
decline to adopt iBiquity's presumption policy because it is too early
in the DAB conversion process for us to consider such a mechanism. We
find that such a policy, if adopted now, may have unknown and
unintended consequences for a new technology that has yet to be
accepted by the public or widely adopted by the broadcast industry.
17. Nevertheless, as enunciated in more detail below, we take
significant steps to facilitate the digital radio conversion by
adopting rules and policies that encourage radio stations to invest in
digital equipment and programming. For example, we permit radio
stations to provide various types of digital service as long as one
free over-the-air digital stream of equal or greater quality than the
station's existing analog signal is available for listeners. We also
establish technical rules, such as permitting AM nighttime service,
intended to reinvigorate the AM band. To ensure that DAB adoption
proceeds in a timely manner, we will conduct periodic reviews of
digital service and receiver penetration, as suggested by iBiquity, as
circumstances warrant. iBiquity states that the Commission should
conduct periodic reviews of station conversions and receiver
penetration to ensure the functioning of market forces. iBiquity
recommends the commencement of a first review five years after adoption
of a Second Report and Order in this proceeding to check on the
progress of the conversion. Other commenters agree that the Commission
should periodically review the progress of the DAB conversion process.
18. Extended Hybrid Mode. NAB asserts that the Commission's
authorization of extended hybrid mode DAB operations will further the
conversion process. According to NAB, the extended hybrid mode, which
adds up to 50 kbps, (``kbps'' is the acronym for kilobits per second
(1000 bits per second)), of data carrying capacity to an FM IBOC
signal, will allow broadcasters to support a range of datacasting
services without affecting the quality of the 96 kbps main channel
digital audio signal. NAB asserts that while the use of the FM extended
hybrid mode increases the bandwidth occupancy of the digital carriers,
this will not increase interference to adjacent channels since the
additional (i.e., extended hybrid) digital carriers fall between a
station's primary digital carriers and its host analog signal.
Consequently, each broadcaster will be able to control the level of
impact these extended hybrid signals may have on its own transmission.
NAB comments that the Commission should authorize broadcasters to adopt
all three extended hybrid modes and allow broadcasters to make the
appropriate operational decisions based on the needs of their
listeners. In the extended hybrid mode, digital carriers are added at
frequencies immediately adjacent to the analog FM signal. The three
extended hybrid modes (MP2, MP3, and MP4) are defined by the number of
digital partitions added (one, two, or four pairs), respectively. NPR
submitted a detailed report in November 2004 about the effect of
extended hybrid operation on the host analog signal in various
receivers. The report concludes that the FM extended hybrid mode does
not affect host analog reception in car radios, home stereo receivers,
or subsidiary communications authorization receivers.
19. The FM extended hybrid mode holds great promise for both
broadcasters and their listeners. NPR has submitted data showing that
the FM extended hybrid mode will work in most circumstances. NPR's
report provides an ample basis for permitting radio stations to operate
in an extended hybrid mode. Authorization of this digital mode will
permit broadcasters to offer new and innovative services, especially to
underserved populations, such as the visually impaired and non-English
speaking citizens. If interference issues do arise, we are confident
that the Commission staff will be able to resolve disputes on a case-
by-case basis, and we intend that the staff will address these
complaints in a timely fashion. In this connection, the Media Bureau
has full authority to adjust and, if necessary, prohibit hybrid
operations by broadcasters.
20. All-digital Mode. In the DAB FNPRM, we recognized that it may
be premature to adopt policies for all-digital radio operation given
that there are no standards for this type of broadcasting. NAB agrees
that adoption of policies and procedures relating to the all-digital
mode of IBOC operation would be premature in the absence of
``comprehensive and impartial testing'' of all-digital systems. NAB
states, however, that it is important to recognize that the all-digital
mode is an integral part of the IBOC DAB system specification and that
the software iBiquity provides to its transmitter and receiver
manufacturer licensees includes an all-digital mode of operation. NAB
states that when the time is ripe to consider use of the all-digital
mode, consumers and broadcasters who have already invested in IBOC DAB
equipment will not be disenfranchised and a smooth transition from a
hybrid to an all-digital environment will be assured. iBiquity agrees
that additional work is required before there is an industry consensus
on the IBOC all-digital system.
21. NPR states that it is premature for the Commission to
contemplate a regulatory structure for all-digital terrestrial radio.
It states that the elegance of the DAB transition is that the public,
through its response to digital services, will determine the pace
[[Page 45674]]
of the transition. NPR further states that until the transition to all-
digital operation becomes more imminent, the Commission should refrain
from adopting any policy affecting all-digital DAB. PIC states that the
Commission should use its authority to facilitate public participation
in the further development of digital radio technology.
22. The ultimate goal of this proceeding is to establish a robust
and competitive all-digital terrestrial radio system. We agree with NPR
that it is premature, however, to consider the adoption of policies and
rules for an all-digital mode of operation. There are many unresolved
technical issues associated with the all-digital radio broadcast system
and radio stations do not plan to offer all-digital service in the near
future. Broadcasters, of course, are encouraged to experiment with an
all-digital service, with appropriate authorization, but for regulatory
purposes, our principle focus at this stage is to ensure that the
ground rules are set for the introduction of hybrid IBOC DAB. When DAB
receiver penetration has reached a critical mass and most, if not all,
radio stations broadcast in a hybrid digital format, we will begin to
explore the technical and policy issues germane to an all-digital
terrestrial radio environment.
C. Service Rules
1. Flexible Uses
23. As explained above, the IBOC DAB system provides radio stations
with new flexibility and capabilities. First and foremost, it allows FM
broadcasters to scale their audio quality from 96 kbps downward in 1
kbps or smaller increments. Any reduction below 96 kbps frees capacity
that can be devoted to other services. The AM system offers two levels
of audio quality. The ``core'' AM carriers provide 20 kbps of robust
monophonic sound. The ``enhanced'' layer adds an additional 16 kbps of
digital carriers and enables full stereo sound. The AM system design
allows broadcasters to devote the full 36 kbps to a single audio signal
or, in the future, select only the 20 kbps core mode for audio and
devote the remaining 16 kbps enhanced carriers for other services.
24. The scaling of the audio codec, which permits broadcasters to
reduce the number of bits devoted to the main channel audio signal, may
affect the quality of the audio. An audio codec compresses digital
audio data prior to transmission and decompresses data received.
However, it will not impact the robustness of the signal. The audio
quality may be affected because the reduction in the bit rate may
increase the likelihood of digital artifacts. The trade-off between
bits and audio quality is not linear. There can be a substantial
reduction in bit rate before most listeners would notice any digital
artifacts that might impact audio quality. The broadcasters' and
listeners' tolerance for reduced audio quality depends on many factors,
most importantly, station program format.
25. The IBOC DAB system thus allows radio stations to broadcast a
single high quality audio signal, multiple streams of lower quality
audio, or various combinations of different quality audio signals. In
addition, the system is capable of non-broadcast uses that are non-
audio and/or subscription-based in nature. In the DAB FNPRM, we
tentatively found that permitting radio stations to use their bandwidth
in a flexible manner is in the public interest. Section 303 of the Act
compels the Commission to ``study new uses for radio, provide for
experimental uses of frequencies, and generally encourage the larger
and more effective uses of radio in the public interest.''
26. NAB states that a digital radio station's service offerings
should be determined by the licensee rather than by government mandate.
NAB explains that digital business models will vary from licensee to
licensee. Some stations, such as those with jazz or classical music
genres, may choose to focus their resources on promoting the highest
quality audio signal, while others may want to broadcast multiple
streams of news, weather or financial information. NAB submits that
these kinds of decisions are best left to consumer demand and the
marketplace. NAB states that beyond an obligation to deliver at least
one main audio channel of equal or better quality than a station's
existing analog service, broadcasters should retain the flexibility to
scale signals to enhance audio quality, to upgrade existing
supplementary services, or offer new services for their audiences. NAB
concludes that for DAB to fulfill its potential, supplementary services
must be a viable option. NPR states that the Commission should not
specify the amount of capacity stations should allocate to any given
audio or data service. NPR argues that radio station licensees, like
digital television licensees, should have the freedom to develop
innovative services for the public.
27. iBiquity also urges the Commission to adopt a flexible approach
to its service rules because radio stations have only begun to explore
the IBOC system options. iBiquity asserts that this approach will
encourage broadcasters to experiment and will foster the development of
innovative new services for the listening public. iBiquity states that
the imposition of unnecessarily restrictive service rules will have the
effect of stifling the development of new services. Cox likewise
suggests that the Commission should maintain a ``do no harm'' position,
arguing that if concerns arise later in the conversion, the Commission
can always adopt responsive rules at that time. There were no comments
criticizing the adoption of a flexible use policy.
28. We expect and intend that the fundamental use of DAB will be
for the provision of free over-the-air radio service. We will,
therefore, require radio stations to provide at least one free digital
over-the-air audio broadcast service. Specifically, radio stations
operating in a digital mode must provide one free digital audio
programming service that is comparable to or better in audio quality
than that of their current analog service. Such a baseline requirement
mirrors the Commission's analogous requirement for digital television
stations, and is based on the same underlying policy consideration that
significant benefits from digital conversion should flow directly to
the public. We do not here alter the requirement set forth in the DAB
R&O that a radio station must simulcast its analog programming service
on its digital signal. However, we will revisit the simulcasting
requirement in the future when we decide whether or not to approve the
NRSC-5 standard. In any event, simulcasting is part of the IBOC
operational structure and a radio station must duplicate its
programming if it wants the DAB ``blend'' feature to work properly.
29. Taking these points into consideration, we will permit radio
stations to use their frequencies as the marketplace dictates, an
approach supported by dozens of interested parties and consistent with
our digital television policy. We are hopeful that this flexibility
also will lead to a more rapid conversion to DAB. We elaborate on this
issue below by addressing issues raised regarding some of the services
DAB stations might choose to provide.
a. Digital Audio Broadcasting Signal Quality
30. In the DAB FNPRM, we sought comment on whether or not we should
require broadcasters to provide a high quality digital audio signal
and, if so, what minimum bandwidth should be required for this purpose.
We also sought comment on the amount of
[[Page 45675]]
capacity necessary to allow radio stations to broadcast a high quality
digital signal while permitting the introduction of new datacasting and
audio services.
31. iBiquity supports the use of the IBOC system to improve audio
quality. It believes, however, that market forces should be allowed to
determine the optimal quality levels of the IBOC system. iBiquity
argues that the Commission should not establish minimum quality
requirements, but rather should allow radio stations to make their own
determination of the appropriate level of audio quality for their
particular listeners. NAB states that, at this early point in the
digital radio transition, it is impossible to conclude with any measure
of certainty the number of bits necessary to support a good quality
main audio signal or how many secondary audio streams an IBOC radio
station can transmit without degrading audio quality. Cox Radio adds
that any restrictions contemplated by the Commission may become
obsolete soon after they are adopted.
32. As discussed above, we decline to require broadcasters to
dedicate a minimum level of digital bandwidth to provide a high quality
digital signal. Instead, we leave the decision as to the quality of the
signal provided to the discretion of the radio station licensee,
subject to the comparable signal obligation discussed earlier. The IBOC
system allows stations to offer the public high quality audio, as well
as a broad variety of other innovative services. We believe that we
should provide broadcasters with the freedom to innovate and respond to
the marketplace in developing not only the mix of services, but also
the quality of the audio they will offer the public.
b. Multicasting
33. The IBOC FM DAB system permits an FM radio station to broadcast
multiple audio programming services within its assigned channel. As AM
IBOC operation develops, iBiquity plans to introduce the option to
split the digital AM bitstream into two channels. In order to provide
multiple digital programming streams, a radio station must reduce the
audio bit rate of its main channel broadcasts or use the extended
hybrid mode to obtain additional capacity that can be devoted to a
lower bit rate supplemental audio channel. Testing conducted by NPR
established the viability of this functionality and also demonstrated
that the supplemental channel will have coverage equivalent to the
coverage of the main channel audio signal. Due in part to IBOC system
design constraints, however, any supplemental audio services will not
be able to take advantage of the blend function available to the main
channel audio. The blend function enhances rapid tuning for the main
channel digital signal and provides an analog backup signal in the
event the main channel audio signal is lost. Therefore, any
supplemental channel will require several seconds for tuning and will
experience muting of the audio in the event of signal loss.
34. In the DAB FNPRM, we asked how the availability of additional
audio streams can further our diversity goals, particularly for people
with disabilities and minority or underserved segments of the
community. We tentatively concluded that adopting DAB service rules
that encourage more audio streams would promote program diversity, and
that, once the Commission adopts a policy in this area, radio stations
would no longer need to obtain experimental authority to broadcast
multiple digital programming streams. Section 303 of the Act compels
the Commission to ``study new uses for radio, provide for experimental
uses of frequencies, and generally encourage the larger and more
effective uses of radio in the public interest.''
35. Generally, commenters urged the Commission to authorize
multicasting on a permanent basis, and at the same time, asked us to
avoid excessive regulation that would disadvantage any new type of
digital service. Specifically, commenters emphasized the benefits of
multiple digital audio channels and how that IBOC feature will ensure
the continuing viability of radio reading services as well as enhance
the ability of broadcasters to offer more niche programming and public
affairs broadcasts.
36. The IBOC system makes it possible for FM radio stations to air
additional streams of traditional radio programming (e.g., music, news,
and sports), public safety services (e.g., national security
announcements), assisted living services (e.g., radio reading
services), non-English language programming, and news services to
underserved populations. Experts state that one 96 kbps FM channel
could be divided into up to eight streams of digital programming. Many
stations commented that multicasting will foster the expansion of local
public affairs programming generally and programming serving the
Latino, Asian, and other communities of common cultural interest, in
particular. A number of such stations comment that they will use their
digital capacity to broadcast more foreign language services. Indeed, a
large number of NCE stations filed comments specifically stating that
the following program services are likely to emerge: (1) Special
programming for English as a Second Language (``ESL'') listeners; (2)
native American programming; (3) public affairs programming, such as
school board, civic and local government meetings; (4) youth, young
adult and student productions; (5) reading services for the blind; (6)
homeland security/public safety programming; (7) arts and culture
programming; (8) breaking news/special news events/emergency alerts;
(9) international news coverage; and (10) educational/children's
programming. NPR has announced that it will offer five music services
for multicast streams on affiliated public radio stations: classical,
jazz, electronica, triple-A, and folk. Other program offerings NPR is
developing for stations with new channels include a news and
information service and formats that would serve culturally diverse
audiences. Westwood also said it would make its lineup of news, sports,
talk and entertainment programming, as well as its traffic and
information content available to HD Radio FM broadcasters' multicast
services. In addition, iBiquity reports that commercial radio
broadcasters, including Infinity, Capitol Broadcasting, and Greater
Media have all launched new multicast digital radio streams with
different formats in the summer of 2005.
37. We will permit radio stations to provide multiple audio streams
of digital programming without the need for individual station approval
by the Commission. FM stations currently multicasting pursuant to
experimental authority from the Commission are released from the
requirement to submit a report, as specified in the letter granting
multicasting authority. We believe that radio stations can best
stimulate consumers' interest in digital audio services if they are
able to offer the programs that are the most attractive to their
communities. Further, allowing radio stations the flexibility to
provide multicast services will allow them to offer a mix of services
that can promote increased consumer acceptance of DAB, which, in turn,
will likely speed the conversion process. Additionally, diversity of
programming services may result from multicasting and provide
programming to unserved and underserved segments of the population. We
strongly encourage digital audio broadcasters to use their additional
channels for local civic and public affairs programming and
[[Page 45676]]
programming that serves minorities, underserved populations, and non-
English speaking communities.
38. Mt. Wilson Broadcasters opposes Commission action authorizing
multicasting, at least at the present time, arguing that ``splitting
the channel'' will derogate the service provided by FM radio stations.
NPR asserts that Mt. Wilson Broadcasters is misinformed about the
purposes of DAB, the technical feasibility of multicasting, and the
competitive consequences of authorizing full-power broadcast stations
to broadcast multiple audio channels. We find that multicasting will
not derogate the service as Mt. Wilson argues. An FM station commencing
DAB operations will have approximately the same geographic reach for
its digital signal as for its analog signal. Moreover, splitting the FM
signal into multiple digital streams will not harm listeners in any
manner. As noted above, a licensee must provide a broadcast stream at
least equivalent in quality to its existing analog service. In fact, an
FM station operating a digital service will be able to provide more
services than it could with only its analog signal. Accordingly we
perceive no derogation of the type forecast by Mt. Wilson Broadcasters.
39. Time Brokering. In the DAB FNPRM, we sought comment on the
extent, if any, to which we should permit radio stations to lease
unused or excess bandwidth to unaffiliated audio programmers. In this
context, we noted that an unaffiliated entity may schedule the
programming output of a particular digital audio stream for a period of
time under a contract with the licensee. We stated that radio stations
may benefit from leasing unused or excess air-time because they would
have additional funds to invest in new programming, which, in turn,
would benefit the public. We asked whether our diversity goals will be
furthered if we allow independent programmers to lease excess capacity
from broadcast licensees.
40. We will permit radio stations to enter into time brokerage
agreements for their digital bandwidth. ``Time brokerage'' (also known
as ``local marketing'') is the sale by a licensee of discrete blocks of
time to a ``broker'' that supplies the programming to fill that time
and sells the commercial spot announcements in it. Because these
agreements are essentially leasing arrangements, they achieve benefits
similar to those achieved through leasing arrangements. The Commission
has for many years permitted brokering of FM subcarriers and excess
digital television bandwidth. Moreover, we permit stations to enter
into time brokerage agreements on their main broadcast channels.
Subject to our attribution rules, as noted below, broadcasters will
have the flexibility in structuring business arrangements and
attracting capital to make DAB a success. We agree with the SBAs that
the adoption of this policy will allow licensees to recoup some of the
costs associated with the digital conversion, and to increase outlet
diversity. We strongly encourage digital audio broadcasters to enter in
such agreements with ``eligible entities,'' which often include
businesses owned by women and minorities. An eligible entity is an
entity that would qualify as a small business consistent with SBA
standards for its industry grouping. Moreover, the brokering of
individual digital streams will provide a means to overcome some
financial impediments to getting involved in broadcasting and there is
a potential for new market entrants to take advantage of such
arrangements. Whatever the agreement, it is the licensee who remains
responsible for ensuring the fulfillment of all obligations incumbent
upon a broadcast licensee, including ultimate control over program
material aired on its station's facilities.
41. In the DAB FNPRM, we also asked how Section 310(d) of the Act,
regarding transfers of control, should apply to these situations as
well as how the Commission's broadcast ownership limits and attribution
rules would be affected if an unaffiliated programmer, that is also the
licensee of another station in the same market, leases one of the
additional audio streams. Moreover, we asked whether there should be an
overall limit to the amount of programming time a particular radio
station can broker or lease to others.
42. A number of commenters raise issues regarding the interplay
between multiple audio streams, brokering, and ownership issues. For
example, REC Networks assert that when there is a substantial
penetration of DAB receivers in the marketplace, owners of multiple FM
stations in a single market should consolidate their multiple FM
station broadcasts on a single channel, multicast their programming
services using IBOC technology, and then divest their additional
transmitter facilities. The SBAs state that brokering of a multicast
audio stream would not constitute an illegal transfer of control. They
argue that leasing of a digital stream is consistent with longstanding
Commission treatment of time brokerage arrangements. Specifically, PIC
argues, and we agree, that a licensee owning the maximum permissible
number of stations in a particular market should not be allowed to
acquire additional broadcast streams through time brokering agreements.
Under the Commission's established policies for attribution of such
agreements, we count the brokered station toward the brokering
licensee's permissible ownership totals under the local broadcast
ownership rules. Where an entity owns or has an attributable interest
in one or more stations in a local radio market, time brokering of
another station in that market for more than 15 percent of the brokered
station's broadcast time per week will result in counting the brokered
station toward the brokering licensee's ownership caps. We clarify
that, in the multicast context, a station owner who programs more than
15 percent of the total weekly hours broadcast on a digital audio
stream of another station in the market will be considered to have an
attributable interest in the brokered station. The interest
attributable to a station owner in such circumstances is equivalent to
the percentage of total broadcast time that the stream which is
attributable to the station owner constitutes. Under a time brokering
agreement, licensees must ensure that they maintain full, effective,
and ultimate control over all material aired on their stations.
Therefore, time brokering agreements do not raise transfer of control
issues under Section 310(d) of the Act.
c. Datacasting
43. In the analog context, all FM stations are authorized to
transmit secondary services via an automatic subsidiary communications
authorization (``SCA'') under Section 73.295 of the Commission's rules.
Subsidiary communication services are those transmitted on a subcarrier
within the FM baseband signal, not including services that enhance the
main program broadcast service or exclusively relate to station
operations. Subsidiary communications include, but are not limited to,
services such as radio reading services, utility load management,
market and financial data and news, paging and calling, traffic control
signal switching, bilingual television audio, and point to point or
multipoint messages. Some FM broadcasters currently provide emergency
alert system notifications and paging functions under SCA
authorization.
44. Section 73.593 of the Commission's rules pertains to subsidiary
communications services broadcast by NCE FM radio stations. Under our
rules, the licensee of an NCE
[[Page 45677]]
FM station is not required to use its subcarrier capacity, but if it
chooses to do so, it is governed by the SCA rules for commercial FM
stations regarding the types of permissible subcarrier uses and the
manner in which subcarrier operations are conducted. A significant
difference from the commercial FM SCA rules, however, is the
requirement that the remunerative use of an NCE FM station's subcarrier
capacity not be detrimental to the provision of existing or potential
radio reading services for the blind or otherwise inconsistent with its
public broadcasting responsibilities.
45. Similarly, Section 73.127 of the Commission's rules permits AM
broadcast stations to use their AM carriers to transmit signals not
audible on ordinary consumer receivers for both broadcast and non-
broadcast purposes. A station's AM carrier service authorization may
not be retained or transferred in any manner separate from the
station's license. The licensee must establish that the broadcast
operation is in the public interest wholly apart from the subsidiary
communications services provided. In the analog context, the station
identification, delayed recording, and sponsor identification
announcements required by Sections 73.1201, 73.1208, and 73.1212 are
not applicable to leased communications services transmitted via
services that are not of a general broadcast nature. For both AM and FM
services, the licensee must retain control over all material
transmitted in a broadcast mode via the station's facilities and has
the right to reject any material that it deems inappropriate or
undesirable.
46. iBiquity, in a partnership with broadcasters and equipment
manufacturers, has developed IBOC data services for terrestrial radio
stations. The IBOC system permits radio stations to offer varied and
robust datacasting applications. Using an established standard ID3
format (ID3 is a file tagging software used to provide text information
such as artist name and song title information. ID3 also supports text
descriptions with ads, such as phone numbers and Web addresses.),
information services can be used to provide listeners with song, CD
title, and artist information. In addition, information and host
profiles will complement advertisements and talk radio formats.
Synchronized multimedia integration language (``SMIL''), a protocol
used by iBiquity as the foundation for advanced application services
(``AAS''), allows for the creation and delivery of new data services in
the future. Some possible commercial applications envisioned by
iBiquity include: (1) Enhanced information services such as weather and
traffic alerts delivered to DAB receivers as a text and/or audio
format; (2) enhanced advertising services; (3) listener controlled main
audio services providing the ability to pause, store, fast-forward,
index, and replay audio programming via an integrated program guide
with simplified and standard user interface options; and (4)
supplementary data delivery that will spur the introduction of
automatic driving assistance applications, navigation and rear-seat
entertainment programming. Robert Struble, iBiquity's CEO, has noted
that the text of advertising messages could be synchronized to display
on a DAB receiver's text screen at the same time as a related
commercial is broadcast. We sought comment on whether we should permit
radio stations to distribute any and all types of datacasting services.
We also sought comment on what data services digital noncommercial
educational stations should be permitted to offer.
47. iBiquity urges the Commission to authorize datacasting services
and to include sufficient flexibility in the datacasting authorization
to promote innovation in this area. iBiquity states that there is
tremendous opportunity for the development of low-cost innovative
datacasting services. iBiquity submits that the greater capacity and
reliability of data services based on the IBOC system will help ensure
that data services are introduced. It suggests that promotion of
datacasting will help introduce new services to the public and will
also provide added value for consumers who invest in IBOC receivers.
NAB similarly asserts that datacasting services are still in the
nascent stage, and that the Commission's main goal at this time should
be to encourage and enable broadcasters to innovate and experiment with
these aspects of digital radio. NAB maintains that providing
broadcasters with flexibility in this area will expedite the emergence
of DAB. Bloomberg states that the Commission must not unnecessarily
limit the ability of the DAB platform to carry program-associated data
or other additional, innovative data services. It argues that the best
way to encourage investment, and thereby spur terrestrial radio
broadcasters to make the conversion to DAB, is to provide broadcasters
with the utmost flexibility to develop new digital applications. The
SBAs state that the Commission should permit licensees to provide for
datacasting, within the constraints of the IBOC technical standards,
mainly because it would enhance the multiplicity of information
sources. NPR states that the opportunity to offer datacasting services
will motivate stations to develop new services beyond what is available
today. It expects stations to use their technical capabilities to
provide homeland security-related services, addressing local, regional,
or national events and emergencies, and provide expanded weather
alerts, traffic safety, and other public safety services.
48. Consistent with our decision with regard to audio multicasting
services, we conclude that permitting broadcast licensees flexibility
with regard to the provision of datacasting services is in the public
interest. We will permit radio stations to provide any type of digital
datacasting service, consistent with existing broadcast policies and
rules applicable to analog SCA services, as long as it does not
derogate the mandated stream of free audio programming. Our aim is to
promote innovation and experimentation that will lead to applications
that will serve the public, such as song and artist information as well
as enhanced news, weather, and emergency updates. We note that, for
reasons discussed infra, we will currently only allow datacasting that
is subscription pursuant to an experimental authorization granted by
the Commission.
2. Ancillary Subscription Services
49. Radio stations may wish to offer certain digital audio or data
content under a subscription model. In this context, ancillary
subscription services may be available for a fee or the listener may
simply need to enter a code to access the service. IBOC DAB has the
potential to limit access to certain channels by receiver serial
number, just like satellite radio receivers are presently able to do.
In the DAB FNPRM, we sought comment on whether we should permit
ancillary subscription services. One proposal offered in the DAB FNPRM
was to permit ancillary subscription services as long as they do not
derogate the free services a radio station broadcasts. We also asked
whether we should impose spectrum fees for that portion of digital
bandwidth used for ancillary subscription services. Commenters
generally urged the Commission to permit ancillary subscription
services, but argued against the imposition of fees associated with the
offering of such services. iBiquity argues that broadcasters can
currently provide both datacasting and supplemental audio channels
using SCA analog frequencies without incurring additional spectrum fees
and the same approach should be applied to digital services. NAB states
[[Page 45678]]
that it would be inappropriate to consider fees at this time because a
fee requirement would have the effect of discouraging innovation and
new services that would benefit the public. Nevertheless, we remain
concerned that pay services, left unrestricted, could overwhelm free
over-the-air services, to the detriment of the listening public. We
expect terrestrial radio service to remain a free over-the-air service
and, therefore, the amount of capacity devoted to ancillary
subscription services must be limited. We thus seek further comment on
ancillary subscription service issues in a Second Further Notice of
Proposed Rulemaking, found below. Until this Rulemaking is completed
and a determination is made regarding assessment of the five percent
fee, discussed infra, we will only allow ancillary subscription
services pursuant to an experimental authorization granted by the
Commission. We would grant such authorizations for uses that serve the
public interest, including current subcarrier services like radio
reading services.
3. Noncommercial Educational Stations
50. NCE radio stations face unique opportunities and challenges as
they move to implement DAB. The Act states that a ``noncommercial
educational broadcast station'' must be ``owned and operated by a
public agency or nonprofit private foundation, cooperation, or
association'' or ``owned and operated by a municipality and which
transmits only noncommercial programs for educational purposes.'' In
1981, Congress amended the Act to give NCE stations more flexibility to
generate funds for their operations. As amended, Section 399B of the
Act permits NCE stations to provide facilities and services in exchange
for remuneration as long as those uses do not interfere with the
station's ``provision of public telecommunications services.'' Section
399B also requires that public stations engaged in revenue generating
activities comply with accounting procedures designed to separately
identify these commercial revenues and costs, and it prohibits
Corporation for Public Broadcasting funds from being used to defray any
costs associated with these activities. Section 399B, however, does not
permit NCE stations to make their facilities ``available to any person
for the broadcasting of any advertisement.'' Section 73.503 of the
Commission's rules addresses the licensing requirements and service of
NCE FM stations. Under our rules, an NCE FM broadcast station will be
licensed only to a nonprofit educational organization and upon showing
that the station will be used for the advancement of an educational
program. Although the Commission does not reserve frequencies for NCE
use in the AM service, and thus has not codified noncommercial
eligibility rules for this service, the Commission has treated AM
stations that satisfy the NCE FM eligibility rules as noncommercial AM
stations. Under Section 73.621 of the Commission's rules, public
television stations are required to furnish primarily an educational as
well as a nonprofit and noncommercial broadcast service. Section 73.621
of the Commission's rules provides that ``noncommercial educational
broadcast stations will be licensed only to nonprofit educational
organizations upon a showing that the proposed stations will be used
primarily to serve the educational needs of the community; for the
advancement of educational programs; and to furnish a nonprofit and
noncommercial television broadcast service.''
51. In 2001, the Commission concluded that an NCE television
licensee must use a substantial majority of its digital television
capacity for nonprofit, noncommercial, educational broadcast services.
In addition, the Commission held that the statutory prohibition against
broadcasting of advertising on NCE television stations applies to
broadcast programming streams provided by NCE licensees, but does not
apply to any ancillary or supplementary services presented on their
excess DTV channels that do not constitute broadcasting. Like
commercial DTV stations, NCE DTV licensees must pay a fee of five
percent of gross revenues generated by ancillary or supplementary
services provided on their DTV service. In Office of Communication,
Inc. of United Church of Christ v. F.C.C., the U.S. Court of Appeals
for the District of Columbia Circuit upheld the DTV NCE A&S Order. In
the DAB FNPRM, we sought comment on what, if any, special rules or
considerations should apply to NCE radio stations in light of our
decision regarding NCE DTV stations and the D.C. Circuit's UCC
decision. We also sought comment on how we can ensure NCE radio
stations remain noncommercial in nature as the radio industry converts
to DAB.
52. NPR favors a flexible use policy for NCE station digital
bandwidth. It states that it does not expect the remunerative use of
digital bandwidth to result in a profusion of commercial service
offerings by NCE radio stations. NPR further states that it expects any
subscription or other services provided by NCE stations to relate to
each station's NCE mission. For instance, although subscription
services are not anticipated for several generations of digital radio
receivers, some NCE radio stations may experiment with offering
``pledge-free,'' but otherwise identical, versions of their free over-
the-air services to those listeners who financially support the
station. NPR adds that since the authorization of enhanced underwriting
and remunerative subcarrier services in the early 1980s, the ensuing
diversity of revenue sources has emerged as the key to public radio's
independence from any single revenue source. According to NPR, while
the remunerative use of NCE station facilities and analog spectrum has,
to date, provided only modest amounts of revenue, the remunerative use
of digital technology will enable NCE stations to better weather the
periodic downturns in corporate and foundation underwriting, membership
dues, and, in the case of public radio, State and Federal funding.
53. PIC argues that NCE radio stations, like NCE television
stations, should be obligated to ``use their entire digital capacity
primarily for a nonprofit, noncommercial, educational broadcast
service,'' meaning a ``substantial majority'' of the entire digital
capacity. PIC urges the Commission not to repeat the ``error'' it made
in authorizing NCE DTV stations to offer remunerative services. PIC
also asserts that the ``over commercialization'' resulting from
remunerative activities will discourage public support for public
broadcasting. PIC additionally claims that allowing NCE radio stations
to offer advertising supported non-broadcast services violates the
intent underlying the original reservation of spectrum and will reduce
``ratio of noncommercial-to-commercial programming.''
54. NPR objects to PIC's suggestions, stating that NCE television
stations are subject to a more exacting regulatory mandate to furnish
``primarily'' a non-profit and noncommercial television broadcast
service. NCE radio stations, on the other hand, are licensed ``for the
advancement of an educational program.'' NPR notes that the Commission
adopted a higher standard for NCE television stations because such
stations use greater amounts of spectrum, have more extensive coverage
areas, and are far fewer in number. NPR also asserts that requiring NCE
radio stations to reserve a ``substantial majority'' of their entire
digital capacity for a free NCE service would significantly restrict
station flexibility to determine the appropriate mix of services, and
how much capacity to devote to each, based on the specific
[[Page 45679]]
needs of their community of service. NPR states, for example, that such
a ``substantial majority'' requirement would prevent stations from
dividing the 96 kbps bitstream into two 48 kbps service streams. This
is an approach that WAMU-FM is pursuing, as it has found that splitting
the bandwidth evenly into 48 kbps each was ``extremely good'' for both
the main and the supplemental channel. According to NPR, a minimum
quantitative requirement, and one requiring a ``substantial majority''
of the bitstream, in particular, would countermand the inevitable
improvement in audio coding technology that will otherwise permit
higher quality audio using fewer kilobits.
55. We defer consideration of the issues discussed above to a later
date. As noted above, we have decided to further examine the offering
of subscription services in a Second Further Notice of Proposed
Rulemaking. In addition to our concern about maintaining the free
nature of all terrestrial radio services, we wish to preserve the
noncommercial educational nature of NCE service. We will address both
issues after considering the comments in response to our Second Further
Notice of Proposed Rulemaking. In any event, we hold that an NCE radio
station is obligated, like its commercial counterpart, to provide at
least one free over-the-air digital programming stream that is
comparable to or better in audio quality than its analog signal.
4. Low Power FM
56. In 2000, the Commission authorized the licensing of two new
classes of FM radio stations, one operating at a maximum power of 100
watts and one operating at a maximum power of 10 watts. We note that a
100-watt Low Power FM station can serve an area with a radius of
approximately 3.5 miles. The Commission has yet to authorize any 10
watt stations in the LPFM service. Both types of stations, known as low
power FM (``LPFM'') stations, were authorized in a manner that protects
existing FM service. The Commission stated that LPFM stations would be
operated on a NCE basis by entities that do not hold an attributable
interest in any other broadcast station or other media subject to our
broadcast ownership rules. The Commission established the new LPFM
service to create new broadcasting opportunities for locally-based
organizations to serve their communities. In the DAB FNPRM, we sought
comment on the conversion of LPFM stations to digital operation and the
potential impact of such a conversion on other stations.
57. iBiquity states that LPFM stations should have the option to
convert to digital operations. It states that IBOC-based equipment can
operate at the 100-watt power levels authorized for LPFM service.
iBiquity asserts that in the case of 10-watt stations, however, the
extremely low power level of those stations may make digital broadcasts
infeasible. The IBOC system broadcasts the digital signal at one
percent of the station's analog power level. In the case of a 10-watt
LPFM station, that digital power level would fall below the noise floor
and would be difficult for any digital receiver to recover; however,
this would not be the case with 100-watt LPFM stations. iBiquity notes
that because these LPFM stations are required to comply with the
Commission's adjacent channel interference restrictions, the
introduction of digital broadcasts by these stations should not create
harmful new interference.
58. We find that if an LPFM station intends to transmit in digital,
and is technically capable of doing so, there should be no regulatory
impediments preventing its adoption of the IBOC technology. We
recognize that LPFM is a new service which involves non-commercial,
community-oriented stations and that these stations have limited
resources. We are committed to working with these stations to address
issues regarding their transition to digital as they arise. We note
that in 2005 the Commission released a Second Order on Reconsideration
and Further Notice of Proposed Rulemaking, which further advanced the
introduction of LPFM service in numerous areas across the United
States. This Second Order addressed technical, operational, and
ownership issues necessary for the further development of the service.
In the Second Order on Reconsideration, the Commission modified its
rules governing minor changes and technical minor amendments for LPFM
stations. We also clarified the definition of locally originated
programming for purposes of resolving mutually exclusive LPFM
applications. In the Further Notice of Proposed Rulemaking, the
Commission sought comment on a number of technical and ownership issues
related to LPFM.
5. Licensing Procedures
59. Under Section 73.1695 of the Commission's rules, the Commission
considers whether a proposed change or modification of a transmission
standard for a broadcast station would be in the public interest.
Sections 73.3571 and 73.3573 of the Commission's rules discuss the
processing of AM and FM broadcast station applications, respectively.
In the DAB FNPRM, we sought comment on what, if anything, the
Commission should do to amend or replace these procedural requirements
in the context of DAB. With regard to mandatory paperwork, Section
73.3500 of the Commission's rules lists the applications and report
forms that must be filed by an actual or potential broadcast licensee
in certain circumstances. In the DAB FNPRM, we sought comment on which
forms and applications must be modified because of DAB. We note that
the following forms may be at issue: (1) Form 301--Application for
Authority to Construct or Make Changes in a Commercial Broadcast
Station; (2) Form 302-AM--Application for AM Broadcast Station License;
(3) Form 302-FM--Application for FM Broadcast Station License; (4) Form
340--Application for Authority to Construct or Make Changes in a
Noncommercial Educational Broadcast Station; (5) Form 349--Application
for Authority to Construct or Make Changes in an FM Translator or FM
Booster Station; and (6) Form 350--Application for an FM Translator or
FM Booster Station License. In the DAB FNPRM, we sought comment on any
specific changes to these forms. We find that certain changes to our
licensing processes are necessary to accommodate DAB operations. Rather
than amend the administrative licensing requirements and generate new
forms now, however, we will delegate the authority to make such
changes, to the extent possible, to the Media Bureau. This delegation
permits the Bureau staff to make changes on an expedited basis as
circumstances warrant, subject to Office of Management and Budget
approval under the Paperwork Reduction Act.
D. Programming and Operational Rules
1. Public Interest Issues
60. The DAB FNPRM sought comment on a number of policies and
requirements impacting the public interest. Such subjects as
sponsorship identification, political advertising, and cigarette
advertising were raised for comment. The Commission received extensive
comment on several issues, including radio reading services, the
emergency alert system, and station identification. Therefore, these
subjects are discussed separately below.
a. Public Interest Obligations
61. It is incumbent upon the Commission to ensure that broadcast
radio and television stations serve the
[[Page 45680]]
``public interest, convenience and necessity.'' To ensure that
broadcasters' service meets this high standard, both the Congress and
the Commission have devised various program-related and operational
duties that licensees must discharge. Broadcasters, for example, are
required to air programming responsive to community needs and interests
and have other service obligations. We remain committed to enforcing
our statutory mandate to ensure that broadcasters serve the public
interest and remind broadcasters of the importance of meeting their
existing public interest obligations. We also encourage them to
increase public disclosure of the ways in which they serve the public
interest. Our current requirements, including those implementing
specific statutory requirements, were developed for broadcasters who
were essentially limited by technology to a single, analog audio
programming service and minor ancillary services. The potential for a
more flexible and dynamic use of the radio spectrum, as a result of
IBOC, gives rise to important questions about the nature of program-
related and operating obligations in digital broadcasting because the
scope of those responsibilities has not been defined.
62. In the DAB FNPRM, we sought comment on how to apply such
obligations to DAB. We also tentatively concluded that the conversion
to DAB will not require changes to the following requirements: (1)
Sections 312(a)(7) (Section 312(a)(7) provides that ``[t]he Commission
may revoke any station license or construction permit for willful or
repeated failure to allow reasonable access to or permit purchase of
reasonable amounts of time for the use of a broadcasting station by a
legally qualified candidate for Federal elective office on behalf of
his candidacy.'' This right of access does not apply to candidates for
state or local offices.) and 315 (Section 315(a) of the Act, as
amended, provides that ``if any licensee shall permit any person who is
a legally qualified candidate for any public office to use a
broadcasting station, he shall afford equal opportunities to all other
such candidates for that office in the use of such broadcasting
station.'') Section 73.1940 of the Commission's rules defines ``legally
qualified candidate'' as any person who has publicly announced his or
her intention to run for nomination or office, is qualified under the
applicable local, State, or Federal law to hold office for which he or
she is a candidate, and has qualified for ballot placement or has
otherwise met all the qualifications set forth in the Commission's
rules. In addition, both the Act and the rules narrowly define the term
``use'' and exclude from the definition candidates' appearances in bona
fide newscasts, interviews, documentaries, and the on-the-spot coverage
of news events. Licensees have no power of censorship over the material
broadcast under the equal opportunity provisions of Section 315(a). Two
years ago, Congress amended the lowest unit charge provision of Section
315, codified the Commission's existing political file rule, and
expanded that rule to require that a broadcast's station's public file
contain information regarding certain issue advertising. The Supreme
Court upheld these amendments to the Communications Act in McConnell v.
FEC), of the Act and Sections 73.1940-44 of the Commission's rules--
political broadcasting; (2) Section 507 of the Act and Section 73.4180
of the Commission's rules--payment disclosure; (Section 507 of the Act
states that ``Any employee of a radio station who accepts or agrees to
accept from any person (other than such station), or any person (other
than such station) who pays or agrees to pay such employee, any money,
service or other valuable consideration for the broadcast of any matter
over such station must, in advance of such broadcast, disclose the fact
of such acceptance or agreement to such station.''). The requirement,
in industry parlance, addresses ``payola'' and ``plugola.'' Payola
occurs when a station fails to announce the receipt of something
valuable in return for the inclusion of material in a broadcast.
Plugola describes a situation in which a station fails to identify an
outside business interest of the licensee, its parent, its affiliates,
or an employee in the broadcast of particular materials.) (3) Section
508 of the Act--prohibited contest practices; (Section 508 of the Act
addresses prohibited practices in contests of knowledge, skill, or
chance. Under the Act, it is unlawful for any person, with intent to
deceive the listening or viewing public, to supply to any contestant in
a purportedly bona fide contest of intellectual knowledge or
intellectual skill any special and secret assistance whereby the
outcome of such contest will be in whole or in part prearranged or
predetermined.) (4) Section 317 of the Act and Section 73.1212 of the
Commission's rules--sponsorship identification (Section 317 of the Act
and the Commission's rules state that all matter broadcast by any radio
station for which any money, service or other valuable consideration is
directly or indirectly paid, must announce that such matter is paid for
or furnished by the paying party.); (5) Section 1335 of Title 15 and
Section 73.4055 of the Commission's rules--cigarette advertising;
(Section 1335 of Title 15 of the U.S. Code, and the Commission's
implementing regulations, makes it illegal to advertise cigarettes and
little cigars on any medium of electronic communication subject to the
Commission's jurisdiction. Thus, application of this rule to DAB is
statutorily required.) and (6) Section 73.1208 of the Commission's
rules--broadcast of taped or recorded material. Under Section 73.1208,
any taped, filmed or recorded program material in which time is of
special significance, or by which an affirmative attempt is made to
create the impression that it is occurring simultaneously with the
broadcast, must be announced at the beginning as taped, filmed or
recorded. The language of the announcement shall be clear and in terms
commonly understood by the public. The purpose of this rule is to avoid
public confusion by informing the listening audience that the material
presented is not being broadcast in real time. However, we sought
comment on how such requirements should be applied to multicast
services and whether the requirements apply to subscription services.
63. In its comments, PIC outlines certain areas in which the
Commission should take action to ensure digital radio stations
adequately serve the public interest. Specifically, PIC promotes the
following six principles: (1) Free, over-the-air radio is a vital
national interest that must be preserved and protected for civic,
public safety, informational, and cultural reasons; (2) broadcasters
must add as much additional capacity for the provision of new and
independent voices or for serving underserved communities as they add
for other purposes, such as offering commercial services that increase
format diversity or subscription services; (3) radio must use digital
technology to improve its offering of emergency information to all
audiences, including those listening to subscription services, no later
than it deploys other new services; (4) core statutory obligations must
apply to all newly-created digital channels, and need modest alteration
for a digital environment; (5) benefits that accrue to digital audio
broadcasters must be accompanied by specific public interest
obligations enforced through Commission rules and renewal processing
guidelines; and (6) the Commission must ensure that
[[Page 45681]]
technology advancements support a broader benefit to the public. For
example, PIC suggests that a broadcaster's statutory obligations should
apply to all DAB streams (i.e., free, subscription, and multicast
streams). PIC also recommends that the Commission develop a flexible
``menu'' of additional public interest obligations and impose such
obligations when a broadcaster chooses to implement subscription or
other non-advertising based services. PIC advocates that this menu
should place the highest priority on offering capacity for audio
programming to non-affiliated noncommercial programmers, ``small
disadvantaged businesses,'' and commercial programmers serving
underserved audiences. The menu should also include options to offer
additional news and public affairs programming, and to offer public
interest data services. WRAL-FM suggests that all radio and television
stations should be required to meet certain minimum standards of public
interest performance. It states that a voluntary code of conduct should
be adopted to encourage higher than minimum standards for the broadcast
industry and all stations should be required to report quarterly on
their public interest activities.
64. NAB states that existing public interest obligations generally
should apply to hybrid radio stations. NAB asserts, however, that it is
premature for the Commission to impose more specific or additional
public interest obligations on new multicast audio services or on
datacasting services. NAB argues that the proposals made by PIC lack
justification, are impracticable and overly burdensome, and present a
number of policy, statutory and constitutional problems. With regard to
subscription services specifically, NAB notes that the Commission has
in the past declined to impose traditional ``broadcast type'' public
interest obligations on subscription services (including video and
audio program services), especially when those services are in their
nascent stage of development. The NAB, citing Subscription Video,
asserts that the Commission has declined to impose traditional
broadcast regulations on subscription services carried on FM subcarrier
frequencies, such as background music programs. NAB argues that the
Commission should refrain from applying the various ``broadcast type''
public interest requirements to IBOC radio subscription services, at
least until those services, if any, have matured. In any event, NAB
states that this proceeding, which is focused on radio stations'
implementation of IBOC, is not the proper vehicle for rewriting the
Commission's broadcast public interest regulations that apply to both
television and radio stations. NAB states that the proposals made by
PIC and other commenters are being specifically, thoroughly, and more
properly addressed in one or more pending proceedings focusing on
broadcasters' public interest obligations.
65. We conclude that applying statutory and regulatory public
interest requirements currently imposed on analog radio to digital
radio is both necessary and the proper course of action. Specifically,
the following requirements apply: (1) Political broadcasting; (2)
payment disclosure; (3) prohibited contest practices; (4) sponsorship
identification; (5) cigarette advertising; and (6) broadcast of taped
or recorded material. Further, we will impose these requirements on all
free over-the-air digital audio programming streams. The application of
these requirements to subscription services is addressed in the Second
Further Notice of Proposed Rulemaking, below.
66. Additionally, radio stations operating in a digital format must
comply with all other public interest obligations applicable to radio
broadcasters while operating in that mode. That is, a radio station
providing digital audio programming service analogous to the analog
audio service subject to regulation by the Commission must comply with
such regulations that apply to that service, unless otherwise specified
or clarified in this Second Report and Order. The Commission's station
log and public file requirements, under Section 73.1820 and Sections
73.3526 and 73.3527, respectively, are some of the rules that apply in
this context. Other statutory requirements and Commission regulations
that apply to DAB, but need further explanation, are discussed below.
We again remind broadcasters of the importance of meeting their
existing public interest obligations and encourage them to increase
public disclosure of the ways in which they serve the public interest.
67. While we move forward and apply existing public interest
obligations to all free digital broadcast streams, we will not adopt
new ``public interest'' requirements in this Second Report and Order.
The commenters have raised important and complex issues concerning how
broadcasters' public interest obligations should be tailored to the new
radio services made possible through digital technology. Given the
substance and scope of the proposed requirements, we conclude that it
is best to defer consideration of any new public interest obligations
(of the type envisioned by PIC, for example) so that we can, instead,
promptly establish basic operational requirements in this proceeding.
Radio stations using IBOC DAB technology, at this stage in the
conversion process, are generally offering basic hybrid service where
the digital signal replicates the programming of the analog signal.
Thus, for the immediate future, we do not expect novel public interest
problems to arise in this context.
68. The Commission will issue an annual report as to how the new
digital radio services are being rolled out, whether multicast streams
are being offered, and the extent to which programming on digital radio
and on the multicast streams are fostering the services described in
paragraph 37. We will obtain data for the report by periodically
surveying digital audio broadcasters as to the status of their new
services.
b. Station Identification
69. Under Section 73.1201 of the Commission's rules, broadcast
station identification announcements must be made at the beginning and
end of each time of operation, and as close to the hour as feasible, at
a natural break in programming. Official station identification
consists of the station's call letters immediately followed by the
community or communities specified in its license as the station's
location. The name of the licensee or the station's frequency or
channel number, or both, as stated on the station's license may be
inserted between the call letters and station location. In the DAB
FNPRM, we sought comment on whether the station identification rules
should apply to all digital audio content of a radio station.
Specifically, we sought comment on how a station should identify audio
channels other than the main channel. We asked whether there should be
separate call letters for separate streams. We also sought comment on
how any proposed rule should differ, if at all, for AM radio stations.
There are rules for simultaneous AM (535-1605 kHz) and expanded band AM
(1605-1705 kHz) broadcasts. If the same licensee operates an AM
broadcast station in the 535-1605 kHz band and an AM broadcast station
in the 1605-1705 kHz band with both stations licensed to the same
community and simultaneously broadcasts the same programs over the
facilities of both such stations, station identification announcements
may be made jointly for both stations for
[[Page 45682]]
periods of such simultaneous operations.
70. PIC states that clearly understandable station identification
rules, differentiating between multiple channels offered by the same
licensee, and identifying the owner and location of the owner of the
station, are necessary to allow the public to identify the source of
the programming. It further states that the Commission should expand
the call letters that a station uses to identify itself to allow
listeners to easily remember which station and channel they are tuned.
PIC adds that call letters are an important mechanism the public and
the Commission use to identify particular broadcast streams, especially
in the indecency context.
71. iBiquity argues against any proposal to create a separate
station identification requirement associated with digital broadcasts.
iBiquity argues that because hybrid radio stations (that do not
multicast) broadcast identical programming throughout the day, there is
no need for additional identification requirements. iBiquity asserts
that broadcasting a separate digital call sign would require
significant system and equipment modifications that will deter
conversions to digital broadcasts.
72. The SBAs state that multicast programming streams should not be
subject to station identification requirements. They argue that such
requirements are unnecessary for listener recognition and Commission
enforcement efforts. A radio station will voluntarily identify its
channel position to listeners to develop market recognition. According
to the SBAs, stations now identify themselves, their call sign,
identifier slogan, community of license and dial position (e.g.,
``Z105.3'') far more often than the Commission's rules require. They
assert that further station identification requirements, which reduce
broadcast flexibility, are not needed to ensure listener recognition of
particular broadcast channels. Additionally, with new digital
technologies, the call letters of the licensee can be embedded into the
bit-stream of a channel. Thus, the Commission will have a means to
easily identify a station and monitor its compliance with broadcast
rules. The SBAs posit that DAB technology permits a visual
identification on all receivers (through an identification included in
the transmitted bitstream), eliminating the need for an hourly aural
identification.
73. We find that station identification requirements for DAB
stations are necessary to facilitate public participation in the
regulatory process, a key element in the Commission's supervision of
broadcast licensees. Accordingly, we will implement the following
regulations. First, both AM and FM stations with DAB operations will be
required to make station identification announcements at the beginning
and end of each time of operation, as well as hourly, for each
programming stream. Second, proper identification consists of the
station's call letters followed by the particular program stream being
broadcast and the community or communities specified in the station's
license as the station's location. Stations may insert between the call
letters and the station's community of license the station's frequency,
channel number, name of the licensee, and/or the name of the network,
at their discretion. Third, a radio station operating in DAB hybrid
mode must identify its digital signal, including any free multicast
audio programming streams, in a manner that appropriately alerts its
audience to the fact that it is listening to a digital audio broadcast.
This requirement can be met through auditory means (i.e., voiceovers),
textual means (i.e., datacast text appearing on the receiver's
readout), or any other reasonable means of communication. As stations
convert to a digital format and elect to provide multicast programming,
thereby increasing the number of program streams potentially available
to the public, clear identification of the station providing the
programming, as well as the particular program stream being broadcast,
becomes increasingly important, both for listeners and for stations
themselves. These policies and rules are similar to those adopted by
the Commission for DTV stations and support our goal of applying
similar rules to similarly situated broadcasters.
c. Emergency Alert System
74. The current emergency alert system (``EAS'') requirements are
codified in part 11 of the Commission's rules and, inter alia, mandates
the delivery of a ``Presidential message'' in the case of a national
emergency. Along with its primary role as a national public warning
system, EAS and other emergency notification mechanisms, are part of an
overall public alert and warning system, over which the Federal
Emergency Management Agency (``FEMA'') exercises jurisdiction. EAS use
as part of such a public warning system at the state and local levels,
while encouraged, is merely voluntary.
75. Section 73.1250 of the Commission's rules further specifies the
substance and scope of the emergency information being broadcast. Under
our rules, and if requested by government officials, a station may, at
its discretion, and without further Commission authorization, transmit
emergency point-to-point messages for the purpose of requesting or
dispatching aid and assisting in rescue operations. If EAS is activated
for a national emergency while a local area or state emergency
operation is in progress, the national level EAS operation must take
precedence. Emergency situations in which the broadcasting of
information is considered as furthering the safety of life and property
include, but are not limited to the following: tornadoes, hurricanes,
floods, tidal waves, earthquakes, icing conditions, heavy snows,
widespread fires, discharge of toxic gasses, widespread power failures,
industrial explosions, civil disorders and school closing and changes
in school bus schedules resulting from such conditions. AM stations
may, without further Commission authorization, use their full daytime
facilities during nighttime hours to broadcast emergency information
when necessary for the safety of life and property, in dangerous
conditions of a general nature, and when adequate advance warning
cannot be given with the facilities authorized. All activities must be
conducted on a noncommercial basis, but recorded music may be used to
the extent necessary to provide program continuity. In the DAB FNPRM,
we tentatively concluded that Section 73.1250 should apply to all audio
streams broadcast by a radio station because the emergency information
mandate can only be fulfilled if it is broadly applied.
76. The SBAs state that it is in the public interest to extend the
emergency alert system to all audio streams broadcast by a radio
station. NPR states that each free over-the-air audio program service
should participate in the EAS system. Using relatively inexpensive
distribution amplifiers and switching devices, NPR states that radio
stations should be able to carry EAS or other emergency information
virtually instantaneously via each free over-the-air program channel.
However, NPR does not believe stations should be compelled to offer
additional, unspecified ``emergency'' or other services as a condition
to offering any data services. NAB argues that any questions regarding
EAS equipment requirements for DAB should be set aside until a later
date.
77. Subsequent to the release of the DAB FNPRM, the Commission
adopted a Notice of Proposed Rulemaking seeking comment on rule changes
for the emergency alert system. In that
[[Page 45683]]
proceeding, the Commission asked how the EAS system can be improved to
be a more effective mechanism for warning the American public of an
emergency. The action originated, in part, from recommendations of the
Media Security and Reliability Council (an FCC Advisory Committee) and
the Partnership for Public Warning. The Commission specifically sought
comment on IBOC DAB and how the EAS system should apply to additional
digital multicast programming streams. In November 2005, we revised our
Part 11 EAS rules to apply to all radio stations operating in a digital
mode and required such stations to air all national EAS messages on all
audio streams, including subscription services. We found that all
listeners should be informed of critical emergency information
regardless of which audio stream they are listening to. We also
clarified that if DAB stations choose to participate in state and local
EAS activations, they must comply with Part 11. The Commission stated
that such rules will become effective on December 31, 2006.
78. With regard to Section 73.1250, we note that a digital
simulcast of an analog radio signal will, by virtue of the IBOC system
design, be transmitting EAS information. Thus, listeners of the free
digital simulcast will be able to access important emergency
information per the existing requirements. As for multicast digital
audio programming streams, we will apply the mandates of Section
73.1250 to all DAB audio streams in accordance with the revisions made
to our Part 11 requirements. The public benefit of the Commission's
emergency information requirements can only be realized if the rule is
applied in this manner.
d. Radio Reading Services
79. Radio reading services for the blind (``RRS'') have been one of
the critical public interest services provided by radio stations and
others across the country. Radio reading services are conducted by
nonprofit organizations that read printed materials over electronic
media for persons who are visually impaired. Radio reading services
operate on FM radio subcarrier channels, usually under a leasing
arrangement. Alternatively, RRS use cable television systems, a
television station's second audio program (``SAP''), or the main
channel of an AM or FM radio station. RRS represents the most frequent
use of subcarrier channels on noncommercial stations. In 1983, the
Commission held that public radio stations, subject to Section 399B of
the Act, using subcarriers for remunerative activities must ensure that
neither existing nor potential RRS are diminished in quality or
quantity by the pursuit of commercial subcarrier undertakings. The
Commission held that a station using one of its subcarriers for
commercial purposes would be obliged to accommodate RRS on its other
subchannel to ensure the availability of alternative subchannel
capacity for such services. In the DAB R&O, we raised concerns about
the level of interference to analog SCA services and its potential
impact on RRS. In the DAB FNPRM, we sought further comment on measures
to protect established SCA services from interference.
80. Protecting Analog Radio Reading Services From Interference.
According to iBiquity, previous field tests presented to the Commission
and the NRSC demonstrate that, except in limited circumstances, DAB
stations operating on second-adjacent channels will not cause harmful
interference to analog radio reading services and other SCA services.
iBiquity asserts that since the scaling of the HDC codec to obtain
additional capacity for multicasting or datacasting only impacts the
audio of the main channel signal, and not the bandwidth occupancy, it
cannot change the interference potential from the digital signal.
Although using the extended hybrid mode increases the bandwidth
occupancy, it extends inward toward the host signal rather than outward
toward adjacent channel stations. Thus, iBiquity argues the use of the
extended hybrid mode cannot increase interference to adjacent channel
SCA signals. iBiquity states that although the extended hybrid mode
could possibly increase the potential for interference to the host
station's existing analog SCA services, the host station has the
ability to address this situation.
81. In 2002, NPR commissioned a study to estimate the number of
listeners potentially affected by additional interference from IBOC in
the top 16 radio markets. The results show that, on average, additional
interference from IBOC could affect 2.6 percent of eligible radio
reading service receivers within an FM station's service area. Harris
points out that the NPR study used mathematically averaged receiver
performance data to estimate interference potential in the top 16 radio
markets. Harris emphasizes that actual interference is not widespread,
and that any possible degradation to radio reading services may be
ameliorated, at least in part, through antenna alignment, substitution
of a higher quality analog receiver, or carrying the programming on a
digital SCA channel. Harris states that it will be testing the use of
the extended hybrid digital system to provide for a digital transition
of RRS. Harris recommends that the Commission adopt and enforce the
revised FM RF mask proposed by iBiquity to further mitigate
interference to SCA services, other digital services, and second
adjacent channel analog FM services.
82. These RR Services provide tremendous value and we wish to
encourage their development in a digital environment. Based on the
record, it does not appear that interference generated by IBOC is
likely to cause significant harm to analog SCA reading services.
Nevertheless, the Commission staff will act on complaints in the rare
cases in which interference is shown to cause a problem. In the
meantime, we encourage NPR and other parties to continue independent
testing that will provide us with data on possible interference in
particular circumstances in specific areas. We will defer considering
Harris' recommendation on the RF mask until such test results are made
available.
83. Digital Radio Reading Services. IAAIS urges the Commission to
adopt rules requiring digital radio stations to carry digital RRS.
IAAIS essentially argues that before any radio station offers income
generating secondary audio streams, it should be required to first
provide digital bandwidth for RRS. IAAIS suggests that digital RRS will
be best accommodated on the extended hybrid mode where the IBOC codec
can easily process human speech. IAAIS additionally states that the
digital information sent to radios can be accessed only after
authorization, thus protecting the reading service copyright exemption
for use of the thousands of print materials read aloud. iBiquity
opposes IAAIS's request that the Commission require digital radio
stations to offer capacity for RRS. iBiquity asserts that the radio
reading services do not need a dedicated 20 or 24 kbps channel to match
their current service. iBiquity indicates that high quality ``voice''
channels can be attained using 8 or 10 kbps codecs designed for those
low bit rates. In some cases, those codecs can support voiceover
programming with background music. Although this class of codec is not
designed for higher quality music, iBiquity asserts that high quality
music programming would be beyond the mission of the reading service
stations. iBiquity states that it will identify a suitable solution
that can function at 12 kbps. NPR asserts that it is inappropriate to
consider IAAIS's proposals at this stage of the DAB
[[Page 45684]]
conversion process because more testing of digital RRS needs to be
undertaken before regulations are considered. We decline to impose a
digital RRS requirement, or place conditions of the type suggested by
IAAIS, on radio stations at this time. The Commission does not require
radio stations to offer analog RRS and there is no substantial evidence
in the record supporting enhanced RRS requirements for DAB. Moreover,
we find that any type of RRS requirement would run counter to our
flexible bandwidth policy. However, we reiterate our recognition of the
value of such services and encourage their deployment in the digital
environment. We also decline to adopt new policies addressing the
interplay between remunerative services offered by NCEs and the
availability of RRS, similar to the requirements in Section 73.593 of
the Commission's rules, because the business and programming decisions
of noncommercial stations are not yet known. This will be an issue
addressed in a DAB periodic review in the future.
84. Receiver Requirements. IAAIS urges the Commission to require
all digital receivers to include RRS capabilities. In addition, IAAIS
asks the Commission to require tactile controls and other accessibility
features to be built into every digital receiver. iBiquity opposes new
requirements for radio equipment manufacturers, arguing that it would
impair the development of DAB. It further asserts that the imposition
of new and potentially expensive regulations on the design and features
of digital receivers will create a strong disincentive for
manufacturers to introduce digital devices, particularly if these
accessibility features would require significant development work or
redesign of radio receivers. According to iBiquity, these regulations
would not only increase the costs of digital radio for consumers, but
it also would slow the introduction of digital receivers and the IBOC
transition.
85. Our goal is to see RRS services deployed. As noted below,
voluntary industry efforts in this regard are continuing and show
substantial promise. In addition, reception devices for analog RRS are
available as stand-alone equipment for those with visual impairments.
Such consumers may subscribe to RRS services and be able to obtain an
RRS receiver if they so desire. Consumer electronics manufacturers,
however, are under no obligation to build analog audio receivers with
RRS capabilities nor should they be required to manufacture IBOC
receivers with RRS functionalities. IAAIS's proposed mandates would
make it more costly to produce DAB receivers, which in turn, would make
it more expensive for consumers to purchase equipment. We note that
there is no express statutory provision requiring such capabilities.
IAAIS relies on Section 255 of the Telecommunications Act of 1996 as
the basis for some of its requests. This section codifies the
responsibilities of telecommunications manufacturers and service
providers to meet the needs of the disabled. This section, however,
applies to entities regulated under Title II of the Act. It does not
impose any requirements on broadcasters regulated under Title III of
the Act or on manufacturers of broadcast -related equipment. Moreover,
we recognize that any regulation of broadcast reception equipment is
subject to the limitations identified in recent court precedent.
Although we will not require RRS capability at this time, we do not
rule out the possibility of revisiting the issue in the future should
the need arise.
86. Voluntary Industry Efforts. iBiquity states that it has been
working with the IAAIS to ensure that radio reading services are
accommodated as radio stations convert to digital. iBiquity notes that
it is developing a conditional access solution for the IBOC system to
ensure that reading services are able to maintain their copyright
exemption. iBiquity is supplying software, hardware and laboratory
facilities to facilitate additional testing to determine the
appropriate low bit rate codec that can be used for reading services.
iBiquity states that even though it has engineered the HDC codec to
function at bit rates low enough to accommodate reading services, it
has consistently assured the reading services that the IBOC system will
operate compatibly with any low bit rate codec the reading services
select for inclusion in reading service devices. NPR states that it is
exploring the use of the extended hybrid spectrum for the digital
transmission of radio reading services. Pursuant to a Corporation for
Public Broadcasting grant, NPR conducted full perceptual testing of the
latest low- and very low-bit rate digital audio coders that may be used
for radio reading services audio. NPR plans additional tests to measure
the coverage capabilities of extended hybrid operation. With
predictions that the prevalence of visual disabilities will increase
markedly during the next 20 years as the U.S. population ages, NPR
expects NCE stations to continue leading the way in offering assisted
living services, including radio reading services for the ``print-
impaired.'' We are encouraged by the voluntary steps taken by iBiquity
and NPR, so far. We urge these parties to work with IAAIS to forge a
resolution that would benefit all parties involved.
2. Operating Hours
87. In the DAB FNPRM, we asked how the conversion to DAB would
affect the ``minimum hours of operation'' requirement in Sections
73.1740 and 73.561 Under the relevant rules, AM and FM commercial
stations are required to operate two-thirds of the total hours they are
authorized to operate between 6 a.m. and 6 p.m. local time and two-
thirds of the total hours they are authorized to operate between 6 p.m.
and midnight, local time, each day of the week except Sunday. NCE FM
stations are required to operate at least 36 hours per week, consisting
of 5 hours of operation per day on at least 6 days per week. The SBAs
state that multicasting changes the way radio stations operate. It
states, for example, that the Commission may want to support multicast
streams, which do not operate two-thirds of the total hours they are
authorized to operate between 6 a.m. and 6 p.m. and two-thirds of the
total hours they are authorized to operate between 6 p.m. and midnight,
in order to promote more digital multicasting on the air. We find merit
in the SBAs arguments and will permit radio stations to set their own
schedule for DAB hybrid mode broadcasts as well as additional multicast
streams at this stage of the DAB conversion process. We note that
multicasting is at the discretion of the licensee stations; therefore
they should be allowed to schedule separate streams as they wish. This
flexible policy will encourage more radio stations to experiment with
new programming services that interest the public. We will revisit this
issue, if necessary, in future periodic reviews.
3. Territorial Exclusivity
88. In the DAB FNPRM, we sought comment on the application of
Sections 73.132 and 73.232, the territorial exclusivity rules for AM
and FM stations. Under these rules, no licensee of an AM or FM
broadcast station shall have any arrangement with a network
organization that prevents or hinders another station serving
substantially the same area from broadcasting the network's programs
not taken by the former station, or which prevents or hinders another
station serving a substantially different area from broadcasting any
program of the network organization. This section does not prohibit
arrangements under which the station is granted first call within its
primary service area upon the network's programs. The SBAs states that
changes will not be necessary to these
[[Page 45685]]
requirements due to the advent of DAB. With regard to these
requirements, we note that the rules apply to the licensees themselves
and not the content being broadcast. Due to the expansive language
contained in the current requirements, and the pro-competition policies
reflected therein, the territorial exclusivity rules apply to all free
digital audio programming streams. Any novel issues that may arise from
our decision here will be addressed on a case-by-case basis.
E. Technical Rules
1. AM Nighttime Operation
89. In the DAB R&O, we declined to authorize nighttime IBOC
operation by AM stations because there were insufficient test results
in the record to support that action. In 2004, NAB submitted its
analysis of AM nighttime IBOC tests conducted by iBiquity and
recommended that the Commission ``extend the current interim
authorization for IBOC service to permit nighttime AM broadcasts.'' On
April 14, 2004, the Commission issued a Public Notice seeking comments
on the NAB recommendations. Most of the comments received from
broadcasters, such as the SBAs, support NAB's recommendation that the
Commission extend current interim authorizations of IBOC service to
nighttime AM broadcasts. Several other commenters, however, object to
nighttime AM IBOC operations citing the potential for increased
interference due to nighttime AM skywave propagation.
90. On balance, we find that the benefits of full-time IBOC
operation by AM stations outweigh the slightly increased risk of
interference. The studies performed by iBiquity and analyzed by NAB
indicate that the greatest potential for interference occurs at the
extremities of the nighttime coverage area of the desired station,
primarily at locations where substantial interference from existing
analog operations is already present. We do not anticipate increased
interference within AM stations' core service areas. Furthermore, the
interference management procedures established in the DAB R&O provide a
mechanism whereby particular instances of interference can be readily
resolved. Therefore, we will extend the permissible hours of IBOC
interim operation for AM stations to include all hours during which a
given station is currently authorized for analog operation, subject to
the notification procedures established in the DAB R&O. In order to
avoid unnecessary and repetitious notifications, we will not require
those AM stations which have already notified the Commission of the
commencement of daytime IBOC operation to file any further
notification; authority for nighttime IBOC operation is automatically
conferred upon those stations by the action taken herein. AM stations
which file IBOC notifications with the Commission after the effective
date of this Second Report and Order will be presumed to have commenced
IBOC operation for all hours of currently authorized analog operation,
unless the notification states otherwise. We note that many Class D AM
stations are authorized for nighttime secondary operation with
extremely low operating power, in some cases as low as one watt. In
some cases, nighttime IBOC power may be so low as to render IBOC
operation technically infeasible. Nighttime secondary operation for an
AM station is operation with power less than 250 watts and antenna
efficiency less than 241 millivolts per meter at one kilometer for one
kilowatt input. We remind licensees that nighttime secondary analog
operation by Class D AM stations does not carry any minimum operating
schedule requirement, and that interim IBOC operation is entirely
voluntary for all stations at the present time.
2. Dual Antennas
91. In the DAB R&O, we limited interim IBOC implementation to the
systems that the NRSC had tested. With respect to FM antennas, the NRSC
had tested a configuration in which the FM analog and digital signals
were combined and fed into the same antenna. Consequently, FM stations
implementing IBOC were initially required to use the single-antenna
approach. Subsequent testing by NAB, however, showed that separate
antennas could be used for the analog and digital FM signals within
specified limits. NAB stated that the dual antenna approach is less
costly for many FM stations, and may therefore encourage IBOC
development. By Public Notice, we authorized FM stations to use dual
antennas for IBOC pursuant to routine special temporary authorization
(STA) procedures. We raised the issue of dual antennas for further
comment in the DAB FNPRM. Commenters were unanimous in supporting the
expansion of IBOC notification procedures to include dual antenna use,
without the necessity of an STA request. We agree and accordingly
authorize FM stations to implement IBOC without prior authority using
separate antennas conforming to the criteria set forth in the Dual
Antennas Public Notice. Stations must notify the Commission within ten
days of the commencement of IBOC operations, consistent with the
digital notification procedures already in place. In addition to the
information required of all licensees initiating digital operations, FM
licensees using dual antennas shall provide the following information:
(1) Geographic coordinates, elevation data, and license file number for
the auxiliary antenna to be employed for digital transmissions; and (2)
for systems employing interleaved antenna bays, a certification that
adequate filtering and/or isolation equipment has been installed to
prevent spurious emissions in excess of the limits specified in 47
CFR73.317.
3. FM Translator and Booster Stations
92. An FM translator station is a station operated for the purpose
of retransmitting the signals of an FM station or another FM translator
station without significantly altering any characteristics of the
incoming signal other than its frequency and amplitude. An FM booster
station is a station operated for the purpose of retransmitting the
signals of an FM station by amplifying and reradiating such signals
without significantly altering any characteristics of the incoming
signal other than its amplitude. In the DAB FNPRM, we solicited comment
on digital issues concerning FM translators and boosters. Commenters
discussed the following seven issues: (1) Conversion of FM translator
and booster stations to digital operation; (2) permissible uses of
digital translator and booster stations; (3) use of FM translators and
boosters to rebroadcast multiplexed audio streams; (4) use of dual
output digital translators; (5) indefinite continuation of analog FM
translator and booster station operation; (6) modifications of the
currently permitted signal delivery methods for FM translators and
boosters; and (7) requirements related to the simultaneous digital
conversion of licensed main and FM translators and boosters. The latter
issue garnered the most attention from interested parties, where most
agreed that the Commission should not require simultaneous digital
conversion of the primary station and its FM translators and boosters.
93. We will permit the use of digital translator and booster
stations during interim DAB operations. However, we believe that a
stronger record is necessary to address the complicated issues involved
in the authorization of these facilities before adopting permanent
rules for digital translator and booster stations. Pursuant to
experimental authorization issued by the Commission, KCSN-FM and NPR
[[Page 45686]]
conducted field tests in the Los Angeles metropolitan area in December
2004 to evaluate KCSN-FM's signal coverage via mobile reception. NPR
and the station attempted to evaluate IBOC DAB system coverage in terms
of received signal level. The field tests evaluated reception
availability and compared actual data to predictions using a
computerized propagation model. NPR chose KCSN-FM to conduct these
tests because the station operates the nation's first IBOC DAB booster
which presents unique challenges for technical performance. The testing
indicated that the booster generally increased the availability of
KCSN-FM's digital signal, but that there were still coverage issues in
certain service areas. We will not require the simultaneous conversion
of the primary station and its FM translators and boosters. We do not
want to overburden radio stations with more technical requirements than
necessary as they commence digital operations.
4. TV Channel 6
94. Beginning approximately 20 years ago, NCE FM stations operating
on channels 201 through 220 were required to protect channel 6 TV
stations from adjacent channel interference based on the performance
characteristics of analog TV receivers. In the DAB FNPRM, we sought
comment on what, if any, rule changes are necessary to protect channel
6 TV stations from interference from digital radio operations, and if
new rules are needed to protect channel 6 DTV stations. There are
currently 58 licensed analog channel 6 full-service TV stations and 6
licensed analog channel 6 Class A TV stations. There are currently no
licensed or authorized channel 6 digital TV or digital Class A TV
stations.
95. NPR and Paul Delaney assert that due to the low signal strength
of the IBOC digital signal, there is minimal potential for increased
NCE FM interference to analog channel 6 TV stations. Additionally, both
question the continued applicability of the existing TV channel 6
protection requirements in light of the transition to DTV where there
will be few, if any, channel 6 TV stations, and where the use of
digital receivers will provide increased immunity to adjacent channel
FM interference. REC Networks concurs with NPR concerning the re-
examination of the current NCE FM channel 6 protection requirements,
but, it suggests that perhaps some protection of both analog and
digital channel 6 TV stations may be appropriate for NCE FM IBOC hybrid
operations.
96. We agree that the very low increase in power resulting from the
addition of the IBOC digital signal likely will not result in any
increased interference to analog channel 6 TV stations from NCE FM
stations operating on FM channels 201-220, and that the DTV transition
may render this issue moot. Therefore, no changes in Section 73.525
governing TV channel 6 protection are necessary at this time. The
Commission will, however, initiate a separate proceeding to evaluate
the existing NCE FM channel 6 TV protection requirements, and seek
public input on their continued viability, following the completion of
the DTV transition, a review of the immunity characteristics of DTV
receivers, and the widespread deployment of DAB transmitting
facilities.
5. Super-Powered and Short-Spaced Stations
97. Although this issue was not raised in the DAB FNPRM, Livingston
Radio Company and Taxi Productions Inc. (``Livingston'') urge the
Commission to restrict the digital power levels for super-powered FM
stations. A super-powered FM station is a station for which the power/
antenna height combination exceeds the class limit set forth in 47 CFR
Sec. 73.211. Such stations were authorized before the current class
limits were adopted, and have ``grandfathered'' status. Livingston
asserts that super-powered stations cause more interference than
stations that comply with class limits. Therefore, according to
Livingston, IBOC operations by super-powered stations must be limited
in order to avoid excessive interference to nearby stations on adjacent
channels. Livingston urges the Commission ``not to extend superpower
privileges into the IBOC digital environment,'' and suggests
determining digital signal power based on class maximum facilities.
Similarly, Press Communications, LLC (``Press'') suggests that the
Commission adopt limits on IBOC operation by short-spaced FM stations.
98. Several commenters disagree with Livingston's proposal. WPNT,
Inc., for example, states that ending the grandfathered status of
super-powered stations would simply benefit some broadcasters at the
expense of others. Cox Radio, Inc. and Bonneville International
Corporation assert that termination of super-power status is outside
the scope of this proceeding, and that the Commission would violate the
Administrative Procedures Act if it were to adopt rules without first
seeking comment from the public. We agree that the consideration of
super-powered status is beyond the scope of this proceeding, and,
therefore, decline to adopt special restrictions on digital operations
by super-powered stations here. In any event, we do not see a
compelling reason to restrict digital operations by short-spaced FM
stations, as Press suggests. We will continue to evaluate any
complaints of possible IBOC interference on a case-by-case basis as we
stated in the DAB R&O.
6. Expansion of IBOC Notification Procedures
99. We are hereby changing the procedures for approving IBOC
operations to allow broadcasters to take advantage of technical
improvements as they develop, rather than waiting for Commission action
and rules to do so. In the DAB R&O, we permitted radio stations to
implement IBOC operations without prior authority, provided that the
IBOC configurations were substantially the same as those tested by the
NRSC. The IBOC DAB service is developing rapidly, with new modes of
operation such as multicasting, datacasting, and dual antenna operation
all commencing after the DAB R&O was adopted. As test results have been
added to the record in this proceeding, the staff has sought comment
and subsequently issued Public Notices authorizing IBOC operations that
differ from the configurations originally tested by the NRSC. Stations
wishing to implement multicasting or dual antenna operations have,
however, been required to request prior authority to operate from the
Commission. We believe that DAB will continue to evolve rapidly in
tandem with modifications by iBiquity to the IBOC system. In the
interests of efficiency, we delegate to the Media Bureau the authority
to issue Public Notices, seek public input, and review the range of
permissible IBOC operations as circumstances warrant. After appropriate
notice and comment, the staff is authorized to act on delegated
authority on implementing new IBOC notification procedures to cover new
IBOC configurations. Expansion of the notification procedures will
allow stations to implement digital operations without unnecessary
delay.
7. Receivers
100. According to iBiquity, its systems provide extensibility in
that the first-generation receivers are designed to operate both in the
interim hybrid and in all-digital modes. In the DAB R&O, we stated that
this is an area in which definitive evaluations can only be undertaken
after we resolve a number of all-digital issues, such as issues
relating to signal architecture. Recognizing the
[[Page 45687]]
flexibility of the IBOC model, and the possibility of new services, we
stated that we will address receiver issues in more detail at a later
date. We sought comment on whether the issues raised, and the policies
proposed, in the DAB FNPRM require us to address receiver issues at
this stage of DAB development. We asked, for example, how the adoption
of a high quality audio requirement would affect receiver
manufacturer