As we noted last week, the Commission finally released the text of the multiple ownership rulemaking proceeding. Comments in the proceeding are due on September 22, with reply comments due on November 21. A revised summary of the issues raised in the proceeding is now available on our website.
It’s that time of year again. September is the time of year that Commission licensees, including radio and television broadcasters, get to pay the federal government for the privilege of being a regulated industry. The FY 2006 Annual Regulatory Fees are due to the FCC by September 19, 2006. Payment may be made by check or credit card, and can be submitted either in paper or electronically. Payments not made by 11:59 PM on September 19th will face the addition of a 25% late fee.
The Commission has a helpful web page, which includes instructions for submitting the regulatory fees and a “look-up” database to allow stations to confirm the amount owed for their stations. The site also contains a Frequently Asked Questions section, and links to the database where you can submit the fees electronically. In addition, for those needing more detail, the Commission’s full Order detailing the fees for all types of licensees is available here.
Licensees are warned to submit their fees on time and make sure the payments are accurate. And be sure to keep a copy of all correspondence or electronic confirmations. Historically, the FCC’s recordkeeping regarding regulatory fees has not the best, and the process seems to be conducted by a third-party contractor, further complicating issues. In addition, failure to timely submit the proper regulatory fee can block the processing of future applications. Accordingly, it is better in the long-run to take some extra time to make sure these fees are paid properly, then to try and deal with the headache later.
Yesterday, the FCC released its text of the Notice of Proposed Rulemaking on Multiple Ownership. The text summarizes the findings of the Commission in its 2003 multiple ownership proceeding, the questions about those decisions that were raised by the Third Circuit Court of Appeals, and then basically asks for public comments - without making any specific proposals on how to deal with the issues that have been raised.
With so little guidance from the FCC, this is going to be a wide-open process. The FCC doesn't give any hint on how it is leaning on any issue, nor even suggest how to address many of the open issues. Given the issues that were remanded by the Third Circuit to the FCC, and the broad spectrum of issues raised in the Petitions for Reconsideration (all of which will be considered in this proceeding, but on none of which the FCC made any comment or suggested any way in which they would treat the issues raised), there is almost no ownership rule that is off limits in this proceeding. In fact, the FCC could quite well revisit all the ownership rules decided in the 2003 Order, with the possible exception of the Television national ownership limits which have now been set by statute (though the FCC again raises the question of the "UHF discount" that goes into computing the national cap - asking if that discount should be retained).
A summary of some of the issues involved in this proceedings is contained in our client advisory - Multiple Ownership, Yet Again - sent out after the FCC meeting last month that announced the initiation of the new proceeding.
With so much to consider and so little guidance, this will be a long process.
An article in Saturday's NY Times once again highlights the broadcaster's dilemma in deciding what can and cannot be said on over-the-air without triggering the wrath of the FCC for broadcast indecency. The article also highlights the self-censorship that broadcasters are engaged in to avoid even the potential of the $325,000 fines that Congress has recently authorized the FCC to impose in cases where a violation of the Commission's standards are found.
The Times article talks about the issues now facing PBS in connection with a new documentary being produced by award-winning film maker Ken Burns. Mr. Burns' new multi-part documentary is about World War II, and he has interviewed veterans about their experiences in the war. As might be expected, some of those interviews contain words that the FCC has determined to be actionably indecent whenever they are used on broadcast television. Thus, according to the article, new PBS guidelines would call not only for deletion of the words but, perhaps based on concerns about recent FCC interpretations that have fined stations based on implications of indecent actions even where the actions may not have been shown, pixilation of the mouths of the veterans so that the TV audience cannot lip-read to determine what words were being used.
To some, this legal advice may seem extreme, but with the FCC guidelines and precedent as confusing as it is, and the stakes so high with the new level of potential fines, perhaps this very conservative advice is all that can be given. Some may look at the proposed documentary as essentially identical to the airing of Saving Private Ryan, where the FCC held that the use of these otherwise prohibited words was permissible given the serious nature of the programming and the need to portray the soldiers in a realistic setting. So you would think that a documentary on exactly the same subject, dealing with the topics depicted in the movie, would be entitled to the same treatment. One would think - but then we have the case of PBS' airing of The Blues, a serious documentary about blues singers which used some of the prohibited words to convey the realism of of the blues musicians being portrayed. The significant difference, and the reason for broadcasters' concerns is that, unlike Private Ryan, The Blues drew a fine from the FCC for the use of the words. Our memo of April 2006 discusses some of these issues.
Continue Reading...As the second named tropical storm of this year makes its way up the East Coast, the FCC has warned video program distributors, including television stations and cable systems, to remember the Commission's rules on the dissemination of emergency information. In a public notice issued today, the Commission summarized its rules regarding the visual presentation of emergency information to the hearing and visually impaired. in the last two years, the FCC has been aggressive in penalizing stations which did not make emergency information - information about an imminent threat to health or safety - available visually so that the hearing impaired could understand the message being conveyed. And the rules also require that an audio tone to alert the visually impaired be played if a station presents emergency information by text without interrupting other programming.
Today's reminder ends with information about how to file a complaint against stations who do not comply with the requirements. This seems to be a clear warning to broadcasters that they need to carefully review the requirements, and be ready to comply should disaster strike.
Yesterday, according to press reports, Federal agents arrested the CEO of BetOnSports.com, an on-line sports gambling site. The reports state that others involved with this website were indicted, and those involved in companies which were in charge of promotion of this site were also arrested. Indications are that this may just be the beginning of a Federal crackdown on Internet gambling.
Broadcasters are well aware of Internet gaming sites, as many of these sites have tried to entice radio and television stations to run advertising to promote the sites. Most stations have wisely stayed away from any promotion of actual gaming sites. However, the promotion of the so-called "dot-net" sites, i.e. sites with URLs identical to the gaming site, but ending in ".net" instead of ".com." The dot-net sites have claimed to broadcasters that they are legal because they do not accept bets, instead featuring instructions on how to play various games and allowing people to play the game with free credits assigned by the site.
We have always warned broadcasters to be wary of such advertising. If the broadcaster decides to accept the "dot net" ads, it should do so only after being very careful to be absolutely sure that these sites do not promote gambling - that they are free of links to the associated gambling site and other promotion for those sites. With the government arresting people for promoting gambling sites, extra caution about this advertising is warranted.
Today, the FCC released an Order announcing the rules for the regulatory fees that will be due in September. The exact dates for filing will be announced in a subsequent public notice. But today's Order sets out the amount of the fees that will be due for broadcasters and other services.
For AM stations, these fees will range from $400 to $7375, depending on the Class of Station and the population that the FCC estimates that the station serves. For FM stations, the rates range from $575 to $9750. UHF Television stations will owe between $1775 to $20,750, while VHF stations will pay between $3400 and $64,775. Satellite television stations, which simply rebroadcast the signals of other stations, need pay only $1150.
All fees are based on the status of the station as of October 1, 2005. So stations which have upgraded in the interim, or have gone from a construction permit to a licensed station after that date, will not have to pay for their new facilities until next year. However, even if there has been a change in ownership since October 1, 2005, the current licensee is responsible for the fee.
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On Thursday, July 13, the FCC was supposed to consider the formal rules for digital radio. As I wrote on July 7, AM and FM stations operating digitally are currently doing so under temporary rules. The Commission was supposed to resolve the many issues surrounding digital radio at this meeting.
The meeting was to begin at 9:30, but the appointed hour came and went with no meeting. Eventually, it was announced that the meeting would be moved to 11 AM and then, just before 11, the FCC announced that they had pulled the digital radio item from the agenda.
It has been widely reported that the item would be considered "on circulation," meaning that the Commissioners would simply review the item in their own offices and cast their vote on paper. When they all had voted, the item would be released. There would be no need for another meeting. The rumor was that the order would be out quickly, perhaps even by the end of last week, but we still have not seen it.
So keep your eyes on the trade press to see what the FCC will decide. But don't hold your breath, as we're still waiting for the text of the FCC's multiple ownership rulemaking - a rulemaking supposedly adopted at the Commission meeting on June 21.
Yesterday was the day that virtually all television stations in the United States were supposed to be operating their digital facilities at substantially full power. For years, many stations have been operating their digital stations with temporary facilities at low power while waiting for the digital television audience to grow. Now, except for those license who have filed with the FCC a showing that financial or technical reasons justify their failure to be at full power, television stations should be reaching virtually their entire audience with a digital signal. This is one of the mileposts in the transition of the nation's over-the-air television industry to digital operations, a process that Congress has mandated be complete by February 2009 - less than three years from now.
On our Digital Media Conference panel the week before last, one of the topics that we discussed was whether the process would really be complete by the February 2009 deadline. After turning on the Wimbledon women's finals this morning, only to find that it was not being broadcast in HDTV, I really wonder if the transition can possibly be completed in less than three years. There is a real chicken and egg issue at play. Sports is clearly one of the big draws of digital television, as the HDTV coverage of a football or basketball is such an impressive sight that, once you get used to watching it in HDTV, you don't want to go back to a standard definition viewing experience. But clearly, the expense and complication of broadcasting in HDTV, and the still small audience watching in HDTV, keep many programs in standard definition formats. Yet those of us lucky enough to be able to afford an HDTV television set remain frustrated when we encounter television programs not taking advantage of the new formats. Here in DC only one of the local newscasts in this major market is being done in HDTV. Little or no news or reality programming produced by the networks is yet in HDTV. If HDTV is not available, what will push the public rush to buy new sets to be ready for the February 2009 conversion deadline?
Continue Reading...The FCC yesterday announced that it will consider Digital Audio Broadcasting at its meeting on July 13. While many radio stations are already operating with Ibiquity's In-Band On-Channel operating system, that operation has been under interim rules adopted by the FCC while the Commission continued to consider the permanent rules for the service. All multicast operations by FM stations have been under "experimental authorizations."
There remain a number of substantial issues to be considered by the Commission. Perhaps the most substantial is whether or not to authorize AM nightime digital operations. Also, there are a number of issues related to other interference issues, as well as the request of the recording industry that the system include an "audio flag" to allow for the adoption of technologies that would prevent copying of music off of the over-the-air digital streams.
Washington rumors have indicated that the Commission's consideration of the rules has been delayed by debates over whether to adopt standards for the public interest obligations of radio broadcasters on their second and third multicast channels. According to these rumors, the Democratic Commissioners have wanted public interest obligations to be in place before the multicast service was authorized on a permanent basis, while the Republicans had preferred to consider those issues on a seperate track. Perhaps, with the third Republican commissioner now in place, any impasse which may have existed can now be resolved.
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