Broadcast Law Blog

Broadcast Law Blog

Online Public File for Radio – and Satellite and Cable – Moves Closer to Reality – FCC Issues Formal Notice of Proposed Rulemaking

Posted in AM Radio, FM Radio, Noncommercial Broadcasting, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism

The online public inspection file for radio is moving closer to reality at an unusually fast pace.  Yesterday, the FCC issued a Notice of Proposed Rulemaking, seeking to expand the online public file requirements that now apply to broadcast TV stations to radio (see our summary of the obligations here, and a presentation that we did on those requirements, here).  The rulemaking proposal also looks to adopt online public file obligations for cable systems, satellite television systems, and Sirius XM.  Comments will be due 30 days after the NPRM is published in the Federal Register. 

The NPRM proposes a phased-in approach to these obligations for radio.  It would first require the online public files only for stations in the top 50 Nielsen (formerly Arbitron) markets which employ five or more full-time employees.  The Commission chose these stations to begin the process, reasoning that they are subject to the EEO rules and would thus have EEO reporting obligations (which are already online for most station, albeit on their own station websites), and would have more resources to meet any obligation that the rule imposes.  The Top 50 markets were also the starting point for the roll out of these obligations for TV stations, and are likely also in areas where there is significant political broadcasting activity.  The NPRM asks whether a six month period to implement the new requirements from the effective date of any set of new rules would be appropriate. Continue Reading

FCC Issues $25,000 Fine to Radio Station Owner for 3 STLs that were A Half Mile from Their Licensed Location

Posted in FCC Fines, General FCC

An FCC Regional Director of its Enforcement Bureau this week issued a Forfeiture Order fining a New Mexico broadcaster $25,000 as three of his Studio Transmitter Link auxiliary stations were operating from an unauthorized location – each located about half a mile from where they were supposed to be according to their FCC licenses.  While the amount of the fine may have been increased as the licensee, when notified of the problem following an FCC inspection, filed an application to correct the coordinates, but that application was dismissed by the FCC and never re-filed – so that the same issues of unauthorized operation remained in place when the FCC re-inspected the stations a year later.  But the amount of the fines for a seemingly small problem evidences the seriousness with which the FCC is treating inaccuracies in broadcast auxiliary station licenses.

We have written about these issues before, here and here, and in another recent case the FCC proposed to fine a TV licensee $84,000 for a similar violation.  So check your auxiliaries now, and make sure that they are properly licensed to avoid the potential of a big fine from the FCC in the future. 

FCC to Look at Program Producer Responsibility for Captioning of Video Programming – Likely Extension of New Rules on Captioning Quality

Posted in Digital Television, General FCC, Programming Regulations, Public Interest Obligations/Localism, Television

The FCC this week issued a Second Further Notice of Proposed Rulemaking, suggesting that certain responsibilities for the captioning of video programming be reassigned from the Video Programming Distributor (the TV station or cable system) who has the direct contact with the viewer, to the producer of the programming as that is where the captioning usually is added to the programming.  In asking questions about whether to look at reassignment of some or all of the legal obligations for captioning, the FCC also suggested that, were it to take such an action, program producers might need to register with the FCC so that complaints about their captioning could be directed to the proper location.  As the new quality captioning system is driven by consumer complaints, the FCC suggests that, if programmers are not registered with the FCC, consumers will not be able to express their concerns about the quality of captioning.  By asking about a possible reallocation of captioning responsibilities, and with captioning quality regulations about to go into effect in January, it appears as if the deadline for meeting the new rules seeking to insure the quality of captioning of video programming will be postponed – and we are now hearing that March 16 is the likely new date for the new captioning quality obligations to take effect

The new captioning quality obligations were to take effect on January 15 (or a later date if the requirements had not been approved under the Paperwork Reduction Act by that date).  They required that broadcasters insure that program captioning was of good quality, looking at quality goals including the following:

  • Accurate: Captions must match the spoken words in the dialogue and convey background noises, music and other sounds to the fullest extent possible.
  • Synchronous: Captions must coincide with their corresponding spoken words and sounds to the greatest extent possible and must be displayed on the screen at a speed that can be read by viewers.
  • Complete: Captions must run from the beginning to the end of the program to the fullest extent possible.
  • Properly placed: Captions should not block other important visual content on the screen, overlap one another or run off the edge of the video screen.

According to this week’s Further Notice of Proposed Rulemaking, many VPDs suggested after these quality rules were adopted in February, that it was really the program producers who insured that the captions were included in the programming, and they should be responsible for the quality of those captions.  In reaction to those comments, the FCC has now issued this further notice.  Watch for the comment date on this Further Notice (which will be set when the document is published in the Federal Register) at which time we understand that it is likely that a formal extension of the effective dates of the captioning quality rules will be issued.  So keep watching for these announcements.

FCC Fines Station $7000 for Violation of Main Studio Rule – Good Reminder on Broadcast Main Studio Requirements

Posted in AM Radio, FCC Fines, FM Radio, Public Interest Obligations/Localism, Television

The FCC issued a Forfeiture Order this week, fining a station $7000 for violations of the main studio rule. The facts of the case were set out in a Notice of Apparent Liability issued back in February, where the licensee had claimed that its studio was in a location that was shared with another broadcaster who had agreed to lease it space.  The supposed landlord, however, said that the lease agreement had expired and the licensee had no employees or equipment at the location of the studio. While the initial proposed fine was to be $17,500 for both the failure to have a main studio and to have a public file, the Forfeiture Order reduced the fine as the landlord acknowledged that the public file was at the studio location, even if there were no licensee employees there.  The decision reiterates what the FCC is seeking when it looks to determine if a licensee is in compliance with the main studio rules.

The decision recites the Commission’s policy for a main studio, stating: 

The Commission has interpreted Section 73.1125 to require broadcast licensees to “equip the main studio with production and transmission facilities that meet applicable standards, maintain continuous program transmission capability, and maintain a meaningful management and staff presence.” Specifically, the Commission has found that a main studio “must, at a minimum, maintain full-time managerial and full-time staff personnel.”

It goes on to set out that, in situations where studios are shared by different licensees, it is looking for evidence (like a written contract) that the landlord’s equipment is actually available for use by the licensee sharing the facilities.  We have written about the main studio obligations before, here.  To stay compliant, make sure that a station’s main studio is staffed during normal business hours, has at least two employees (one of whom is a management employee) who report there on a daily basis as their principal place of business, and has equipment ready and available so that the licensee’s employees can originate operations from the main studio at any time.  This licensee’s fine is a good reminder to all other broadcasters to observe these requirements. 

Typo in Geographic Coordinates Can Sink FCC Radio Application

Posted in AM Radio, Broadcast Auctions, FM Radio, FM Translators and LPFM, Noncommercial Broadcasting

In a case decided last week, the FCC decided to clarify its policies on typos in FCC applications for radio stations.  While one might not think that a typo is such a big idea, in connection with FCC application filing windows, when multiple applicants may be seeking the same frequency or channel in the same general location, and only one application can be granted, it can be crucially important.  The decision cites numerous cases where applicants typed in one set of coordinates, and those coordinates were different than what could be derived from information elsewhere in the application (e.g. from the coordinates of ASR for the registered tower on which the applicant planned to locate its antenna).  To clarify its policies, the Commission stated that, in the future, any typo in site coordinates in the “Tech Box” of an application would be given full effect, even if the correct coordinates could be discerned from other information in the application if the correction of the coordinates would prejudice any other application by another applicant.  So, where there are mutually exclusive applications for the same channel, and one has a typo in its Tech Box listing coordinates that would place the proposed stations in a location that would not work for the given channel (or would be less favorable in a comparative analysis), the typo will cause that applicant to be dismissed. 

This decision was made in the context of a number of applications for new noncommercial FM stations filed in the last noncommercial FM window.  While in this case, the FCC reinstated the applications with typos as its policy on typos had been ambiguous, it made clear that the applicants would not be treated so leniently in the future.  The Commission also made clear that this policy would apply to any radio application using FCC Form 301 (the construction permit application for commercial FM stations), Form 318 (application for construction permit for LPFM stations), or Form 340 (application for construction permit for noncommercial FM stations).  Specifically, the Commission will rely on the antenna location coordinates specified in Item 3 of the FCC Form 340 Tech Box for NCE stations, in Item 2 of the FCC Form 318 Tech Box for LPFM, and in the Tech Boxes of FCC Form 301 for full-power commercial stations (for AM: Section III, Item 4b for daytime coordinates, Item 5b for nighttime coordinates, and Item 6b for critical hours coordinates; for FM: Section III-B, Item 3 for antenna location coordinates and Item 4 for proposed allotment or assignment coordinates).  The information in these application sections (or in any equivalent form adopted in the future) must be accurate, as that will be the information on which the FCC relies to process the application no matter what may be stated elsewhere in the application.  So be careful in completing your applications, or your application may face the consequences. 

Putting Details to the Incentive Auction – FCC Asks for Comments on Fact Sheet on Auction Structure, and Prepares for Meetings with Broadcasters

Posted in Broadcast Auctions, Digital Television, Incentive Auctions/Broadband Report, Television

The FCC adopted proposed auction procedures for its incentive auction at its meeting on Friday, and thus far has released a Fact Sheet on these procedures by which it plans to buy back spectrum from broadcasters and resell it to wireless companies for wireless broadband uses.  The tentative procedures, along with the recent “Greenhill Report” setting possible prices to be paid to television stations who are willing to surrender their channels for the FCC to resell to wireless companies (see our summary here), are setting the stage for a series of meetings with broadcasters to attempt to convince enough to participate in the auction to satisfy the FCC’s goals for the auction – goals that also became a bit clearer from Friday’s releases.  Further information on the auction procedures is expected soon in a more detailed Public Notice fleshing out the proposals outlined in the Fact Sheet so that comments can be filed by the end of January. 

The fact sheet is not the detailed notice of auction procedures that some broadcasters may be familiar with from participating in past broadcast auctions – that will apparently come soon in the Public Notice that it summarizes.  But it does provide an outline of proposed general principles that will be applied to the incentive auction.  Initially, it proposes that the FCC would set opening prices for each station – prices at which the FCC would offer to pay the licensee to give up its spectrum.  The prices would be set based on an analysis of two factors: (1) the impact that the station would have on the repacking of the broadcast spectrum after the auction because of the interference that it causes and (2) the population covered by the station.  If a station agrees to move to the VHF band instead of surrendering its licenses altogether, it would receive somewhere between a third and a half of the opening price if it accepts a high VHF channel, and between 67 and 80% of the opening price for a low VHF channel.  According to the fact sheet, the prices that will initially be offered to the broadcaster will be initially set high, and will be lowered as the auction progresses until the prices reach a point where there are just enough broadcasters willing to take the lowered offer to clear the amount of spectrum that the FCC needs to fill the demands of the wireless users.  There has also been introduced the concept of a “dynamic reserve price,” setting a limit on how much the FCC is willing to pay some stations for giving up their spectrum, which could conceivably result in the amount that they are offered being lowered even when it is known that they cannot be repacked into the amount of the spectrum that remains available in the smaller post-auction TV band.   How much spectrum must be cleared for the auction to go forward? Continue Reading

The End of the Mattoon Waiver? – FCC Decisions Confirming Its Use Only for the Rebroadcast of AM Stations and Prohibiting Intermediate Site Changes

Posted in AM Radio, FM Radio, FM Translators and LPFM

In 2011, licensees of FM translators who wanted to move those translators to areas where there was a need for their service thought that the FCC had done a great thing by authorizing the use of the “Mattoon” waiver (see our article here).  The Mattoon waiver allowed the processing of an FCC application to move the location of a translator as a minor change (meaning that it could be filed at any time, rather than having to wait for a window for the filing of major changes and new translator applications – the last of which opened in 2003) if the current and proposed interfering and protected contours of the stations overlapped.  Without the waiver, the rules deem a minor change to occur only when the protected 60 dbu contour of the station from the proposed and exiting sites overlap, allowing much smaller moves. But, as we have written before, the FCC now seems to be backing off the use of these waivers, and two recent decisions raise the question of whether the policy is doomed (as the Commission proposed in its AM improvement proposals, which we summarized here).

The use of the waiver in many cases eliminated the need for multiple “hops” of translators to get them from existing locations to the sites at which a broadcaster wanted to use them to provide service.  These hops would move the translator from the locations at which it was licensed to a new site, only to file another application as soon as the initial move was granted to move the translator yet again to get them to the location where a broadcaster wanted to use them to provide service.  In some cases, multiple intermediate hops were necessary to move the translator to the site at which its use was ultimately desired.  The Mattoon waiver allowed many site moves to be accomplished through a single application rather than requiring multiple hops, each of which cost the broadcaster time and money in filing multiple applications and in actually building the translator at multiple sites, and also saved the FCC the time and effort to process each of the applications necessary to approve these intermediate stops for the translator.  Continue Reading

A Week of Emergency Alert System Actions at the FCC – Fines Including One for $46,000 for EAS Tones in a Commercial, and Reviews of Best Practices for the System

Posted in Advertising Issues, Emergency Communications, FCC Fines, Programming Regulations

Perhaps Sunday’s anniversary of Pearl Harbor made the FCC want to make this week one which concentrated on emergency communications issues, or perhaps it is just a coincidence.  But the FCC has been active in the past 7 days dealing with emergency communications related items for broadcasters.  On Wednesday, it issued a consent decree by which a broadcaster agreed to a $46,000 fine for the use of EAS tones in a commercial message. This decision follows on the heels of an investigatory letter sent to a satellite radio programmer about the apparent use of a simulated EAS tone in a commercial message when, of course, there was no real emergency.   On Monday, there were two fines for non-operational EAS receivers and EAS recordkeeping failures.  At the end of last week, comments were filed in an FCC proceeding looking at the retransmission of EAS alerts in non-emergency situations, such as when a tone is included in programming on a station, and what can be done to avoid those alerts being sent throughout the system.  Comments are also due by the end of the month on suggested best practices on security for the EAS system, in light of the many issues that have arisen with the hacking of EAS receivers.  Here is a quick look at each of these issues.

The two most recent decisions highlight the severity with which the FCC is treating the use of EAS tones – real or simulated – in non-emergency programming.  We have written about past cases where the FCC has issued very substantial fines for the use of such tones in nonemergency situations, here and here.  In the decision released on Wednesday, the licensee of a Michigan radio station admitted to having broadcast ads for a storm-chasing tour which contained the EAS warning tones.  The National Weather Service received complaints, and in turn filed a complaint with the FCC.  The Consent Decree does not provide much more information, but to indicate that the commercial containing the EAS tones was broadcast on only a single day.  A $46,000 fine for a one-day violation demonstrates the gravity with which the FCC views these violations.  And it is a sense of importance that attaches not just to licensees, but to programmers as well. Continue Reading

FCC Denies Closed Captioning Waiver for Church Service – Clarifying New Standards on “Economically Burdensome” Exceptions to Captioning Requirements

Posted in Digital Television, Noncommercial Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television

We are often asked by television broadcasters if specialty programming – particularly local programming, like a local church’s broadcast of its Sunday morning church service – is covered by the FCC’s closed captioning obligations.  In a decision released on Friday, the FCC staff denied the request of a church for an exemption from the rules requiring the closed captioning of most television programming, and may have helped to make clear an answer to those questions.  This decision also helps to clear up a big question that has been hanging over such programs, for over 3 years since the FCC reversed dozens of prior waivers granted by its staff to nonprofit groups claiming that the captioning would be economically burdensome on their operations (including the waiver that had been granted to this church).  So what factors did the Commission review in denying this “economically burdensome” waiver request?

In 2011, the Commission stated that its staff had to consider the overall circumstances of each petitioner in evaluating economic waivers of the captioning rules, and could not simply rely on the fact that the petitioner was a nonprofit organization the FCC.  After revoking the waivers, the Commission asked the groups whose waivers were revoked to refile their requests with greater detail and support, not simply relying on the fact that the proponent was a nonprofit organization.  Factors to be considered in evaluating any claim that the captioning obligation was economically burdensome include: (1) the cost of the closed captions for the programming and attempts of the programmer to find cheaper sources of captioning; (2) the impact of the captioning obligation on the operation of the provider or program owner; (3) detailed information on the financial resources of the provider or program owner including income and expense statements for the prior two years; (4) attempts to get outside sponsors for the programming or support from the station on which the programming is to be broadcast; and (5) the type of operations of the provider or program owner.  In applying these factors in the decision released on Friday, the FCC staff concluded that the church had not justified a waiver because it had sufficient funds from which to pay the cost of the captioning.  Continue Reading

TV Station Agrees to $115,000 FCC Fine for Not Identifying Sponsor of Program Promoting a Sale at Auto Dealership

Posted in Advertising Issues, FCC Fines, Payola and Sponsorship Identification, Programming Regulations

On Friday, the FCC released an Order and Consent Decree by which Journal Broadcasting agreed to pay a fine of $115,000 and to enter into a compliance program to settle complaints that it had not adequately identified that a program aired on its Las Vegas TV station was sponsored by a local car dealership.  According to the FCC press release issued at the same time as the Order and Consent Decree, the program was labeled a “Special Report,” was hosted by a station employee who stated that she was “reporting on behalf of Channel 13,” was made to look like a news report (with the reporter interviewing various employees of the dealership about their liquidation sale), and was run immediately adjacent to the local news.  The Press Release stated that this action was important to insure “transparency” where consumers are not misled as to who is trying to persuade them about commercial product.  “[A] pseudo news report invites viewers to rely on their perception of the station’s independence and objectivity when, in fact, the message has been bought and paid for by an undisclosed third party,” stated the FCC in the press release.

While the licensee argued that the context of the program made clear that it was a sponsored ad, the Commission’s insistence on the payment of a fine here is evidence of much the same thinking as the decisions the FCC has reached in past cases where there was entertainment or informational programming presented without a sponsorship identification even where the programming was sponsored by a commercial entity.  Even simply providing a recorded program unduly promoting a commercial product has been found to be sufficient to trigger the FCC’s requirement that a sponsor be identified when a station receives valuable consideration for the airing of a program broadcast to the public (see our article here). Continue Reading