FCC Releases Detailed Digital Audio Broadcast Rules

Although the Commissioners themselves voted two months ago to approve the mostly-unrestricted nationwide rollout of HD Radio, the actual regulatory text was just released yesterday. The 74-page document includes basic operating parameters, a second Notice of Proposed Rulemaking on DAB, and Commissioners’ statements (recycled from their March meeting).
A very basic synopsis of the of the rules can be found at the Broadcast Law Blog. On first-read, it’s hard not to notice that the FCC overwhelmingly references just three major stakeholders in the DAB debate: the National Association of Broadcasters, iBiquity, and National Public Radio. The agency consistently defers to industry technical data to justify its decisions, mainly involving studies conducted by iBiquity and “analyzed” by the NAB.
Otherwise, I noted several interesting passages, taken roughly in the order in which the FCC wrote them.
1. The FCC’s taken what seems to be a bass-ackwards approach to potential interference issues and which service to favor – analog or digital – during the transition between the two, which could still take decades. Surprisingly, while iBiquity proposed the FCC favor the protection of analog service, the agency did not agree:
iBiquity…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….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.
However, since there is no mandated transition schedule for radio, stations remain free to choose whether to go digital or not.
2. Extended-hybrid FM operation allows for “up to 50 kbps” of bandwidth to be provisioned for non-audio services without compromising the 96 kbps main digital audio signal quality. However, stations have the option of reducing main program audio bandwidth to free up capacity to provide other services like datacasting, and as of now there are no restrictions on how stations can use their bandwidth, other than guaranteeing that stations will convey their analog signal as their main digital program stream.
However, when it comes to defining comparable audio quality between the two, the FCC hedges, which may give broadcasters more latitude with which to free up bandwidth capacity for non-audio services: “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.”
3. AM stations are permitted to commence digital broadcasts on a 24/7 schedule; the FCC again cites industry testimony to reassure us that interference will not be a major issue.
4. Stations will be permitted to use their digital broadcast capacity “as the marketplace dictates,” though if stations decide to lease their capacity to third parties they are strongly encouraged to consider “‘eligible entities,’ which often include businesses owned by women and minorities” as favored candidates for leasing arrangements. This is a wishy-washy attempt to encourage new entrants into radio’s digital future without actually mandating anything.
5. Entities that lease at least 15% of the weekly digital broadcast time on a station will be considered as having an ownership stake in that station. This should discourage larger conglomerates from snapping up excess capacity on the stations of weaker competitors. For example, if Clear Channel already owns eight stations in a market, it would be prohibited from renting out more than 15% of the excess capacity from competitors. This effectively prohibits companies like Clear Channel from circumventing existing station ownership caps by effectively renting out other stations full-time, though it does move the HD Radio environment in the direction of more program consolidation regardless.
6. Stations are permitted to provide “any type of digital datacasting service…so long as it does not derogate the mandated stream of free audio programming.” The FCC seems to favor the provision of free datacasting services; it will currently only allow subscription-based datacasting pursuant to an experimental authorization.
7. “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.” This will be a major focus of its Second Notice of Proposed Rulemaking (discussed below).
8. Interestingly, iBiquity says that the as-yet unapproved 10-watt LPFM station class will not be able to adopt its HD technology, given the “extremely low power level” of these stations. If such stations will effectively become obsolete in an all-digital future, this may explain why the FCC has refused to sanction their proliferation.
9. The FCC will require multicasting stations to apply the same public interest obligations that govern their analog broadcasts to their digital streams. These include regulations on political broadcasting; payment disclosure, sponsorship identification, and cigarette advertising; contest restrictions; and the broadcast of pre-recorded material.
10. The FCC 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” as outlined above. However, it will “obtain data from this report by periodically surveying digital audio broadcasters,” not by actually actively conducting any independent investigation of its own.
11. Translator stations are given the green light to deploy IBOC on an interim basis, though the FCC believes 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.”
12. Further development of the FCC’s DAB rules will be delegated to the Media Bureau, so that full Commission action will not be necessary to authorize the deployment of things like new features and modes within the HD Radio environment.
13. The FCC continues to basically ignore the wholly proprietary nature of iBiquity’s HD Radio protocol:
We find that iBiquity has abided by the Commission’s patent policy up to this point in the DAB conversion process. Therefore, we do not believe that it is appropriate at this time for us to adopt regulations governing IBOC licensing and usage fees. If we receive information that suggests we need to explore this issue further, especially in connection with the adoption of the (all-digital) standard, we will take appropriate action at that time.
However, the document the FCC references with regard to its “patent policy” is 41 years old. I haven’t had the chance to track it down to see if it has any teeth, and it’s hard to see how a policy written in 1966 can be effectively germane today, especially with regard to intellectual property issues involving software, which didn’t even exist back then.
14. There remain outstanding issues between the United States and its neighbors both to the north and south about HD Radio’s effect on Canadian and Mexican radio stations. The government of Canada has suggested that the imposition of HD Radio may violate international treaties on just what the broadcast bands can be used for. The FCC doesn’t really seem to care that much: “While we are optimistic that we will be able to resolve any outstanding issues with Canada and Mexico or other countries, these issues remain subject to ongoing negotiations.”
With respect to the FCC’s Second Notice of Proposed Rulemaking on HD Radio, one of its primary goals will be to determine the limits of datacasting. It first suggests capping a station’s bandwidth capacity for offering things other than free audio content. The starting figure it plans to work from is within the 20-25% range: “we will proceed cautiously to ensure that free over-the-air service is preserved.”
The NPRM also proposes some interesting questions that are not exclusive to the digital radio environment. For example, it proposes requiring stations to keep a digital copy of their public file online for public access at any time. And it seeks comment on “whether it is appropriate to review the rules that have facilitated the development of automated broadcast operations.”
Is there any reason that, in light of recent industry experience, the Commission should revisit its determination that stations may reliably and confidently use unattended and remotely controlled technical operations without jeopardizing the technical integrity of the radio service? Have changes in remote operation impacted the requirements that the Commission should adopt in this area?
It cites two examples of where radio stations failed to activate the Emergency Alert System in local emergencies, including the infamous train derailment and toxic cloud that engulfed Minot, North Dakota in 2002, killing one and injuring thousands.
An appendix lists the names of those who filed comments throughout the DAB proceeding to-date. It is interesting to see how the number dwindles as time moves on and “facts on the ground” – the actual deployment of HD Radio in increments – take hold. More comments will be solicited on the second NPRM, the filing window for which will most likely open later this summer.