Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

As we mentioned last month, the FCC has been considering a Notice of Proposed Rule Making regarding the effects of communications towers on migratory birds.  The item has made the rounds through the Commissioners' offices, and it appears that the Commission is now ready to act on the item, which has been included on the agenda for the Commission's Open Meeting scheduled for Friday, November 3, 2006.  Back in 2003, the Commission issued a Notice of Inquiry on this matter under then-Chairman Michael Powell, and opened a proceeding as docket WT 03-187.  Now three years later, it appears that the matter has matured into an NPRM, with comments likely due the first part of next year.  It is possible that this rule making could make it more difficult to construct new towers or modify existing ones, so check back after Friday's meeting for a summary of the proposed rule making.

• Email This
• Print
• Comments
• Share Link

In Today's New York Times, a columnist concludes that the FCC's multiple ownership proceeding is "yesterday's news."  Looking at the Tribune Company's recent financial issues and possible sale, the column asks whether anyone should really care about ownership issues in the light of the rapid changes in the media landscape brought about by the digital revolution.  Whether or not anyone cares, the changes in media competition, and potentially in the political landscape after next week's election, may well mean that there will be no significant ownership reform for quite some time, perhaps not until 2009 - after the next Presidential election.

The Times column talks about Tribune's discussions of selling off its television stations as part of a financial restructuring.  (The article does not mention that the New York Times itself is considering the sale of its television stations).  Tribune has certainly been one of the parties pushing newspaper-television cross-ownership relief.  As they look at restructuring, will they pay attention to the FCC's proceedings?  And Clear Channel was one of the parties in the forefront of attempts to further loosen radio ownership restrictions.  They, too, are reportedly considering a financial restructuring or sale.  Will these actions distract two of the most active proponents of relaxing the ownership rules?

In the comments in this proceeding filed last week, ABC Disney essentially took itself out of the proceeding saying that they did not advocate changes in the ownership rules, as they are selling their primary radio assets, are out of newspapers, and are investing in new technologies to get their message out.  With the opportunities of the Internet distribution of video and audio programming, are there other broadcasters, anxious to own more traditional media, who will take the lead in this proceeding?  With over-the-air digital radio and digital television both offering multicast opportunities, do these technologies themselves take some of the urgency out of ownership relief? 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

Entering the last full week before the mid-term elections, broadcasters need to beware of the political broadcasting issues that can arise in the tail end of the campaign season.  With the media expecting political ads to get even dirtier in these final days (see, for instance, the Washington Post's article yesterday - The Year of Playing Dirtier), potential liability looms for broadcasters if they run unfounded third-party attack ads (see our October 18 posting on Dealing With Issue Ads).  But there are other issues of concern.

In this hot political season, in states with closely contested races, equal opportunities requirements can cause advertising inventory concerns during these last days.  When writing new orders for candidate advertising time in these last days, be sure to factor in buys by political opponents who will be entitled to demand equal opportunities - to be provided before the election.  Remember that reasonable access does not demand unlimited access, only what is reasonable under the circumstances.  In determining what is reasonable, a station can look at inventory concerns, as well as the potential for equal opportunities demands from other candidates.  So remember to save room for those equal opportunities requests.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

According to the agenda for its meeting to be held on Friday, November 3, the FCC will finally adopt changes to its rules on FM allotment procedures and on changes in the city of license of broadcast stations.  The FCC issued its Notice of Proposed Rulemaking in this proceeding in June 2005.  This proceeding includes a proposal to make a city of license change a "minor change," which would not require a rulemaking for FM stations, and would not require a window filing for AM stations.  This could speed the processing of such changes, allowing stations to upgrade and otherwise improve their facilities.

The proceeding also deals with a number of other procedural issues, including whether a station should be allowed to change its city of license if it is the only station licensed to a community (generally prohibited under current rules), and whether the proponent of a new FM allotment should be required to file its Form 301 application for a construction permit (and pay the required filing fee) at the same time as it files a Petition seeking the new allotment (intended to encourage only serious applicants for new channels).

Continue Reading...

• Email This
• Print
• Comments
• Share Link

As we predicted in our entry of October 14, the FCC yesterday ruled that the Tonight Show appearance of Arnold Schwarzenegger, who is running for reelection as Governor of California, was a bona fide news interview program exempt from equal time obligations.  As our October 14 posting set out in detail, previous decisions of the FCC had established that many programs that most people would consider to be entertainment qualified as bona fide news interview programs exempt from equal opportunities.  As cited in yesterday's FCC decision, past cases where this ruling has been made include programs such as Donahue, Sally Jesse Raphael, Jerry Springer, Politically Incorrect, Howard Stern and Entertainment Tonight.  As long as the program regularly discusses political or other topical issues, the program content and topics are not controlled by the candidate, and the programming is not presented in a blatantly partisan fashion, a program will be exempt from equal opportunities. 

This decision should give comfort to broadcasters who may have been shy about letting candidates on their talk shows for fear of equal opportunities claims.  If the program discusses topical issues from time to time, it can be considered an exempt program even if the bulk of its content deals with entertainment or other issues.  The FCC is encouraging political speech - in whatever form it may take. 

• Email This
• Print
• Comments
• Share Link

On October 20^th, the Commission issued its Seventh Further Notice of Proposed Rule Making (“NPRM”) requesting comment on the proposed new DTV Table of Allotments, which has been assembled as a result of the DTV channel election process.  This table will ultimately replace the existing table at the end of the DTV transition as the definitive Table of Allotments. 

First and foremost, the NPRM requests that licensees double-check their allotments to make sure that they are accurate, and that the Table reflects any conflict-resolving amendments that may have been made.  Licensees are asked to comment on any inaccuracies or discrepancies. 

Second, a limited group of licensees may request an alternative channel assignment.  Specifically: (1) Licensees unable to construct full, authorized DTV facilities on their designated DTV channel, (2) licensees with irresolvable international coordination problems, (3) licensees with low-VHF channel designations, and (4) new licensees and permittees that attained such status after the start of the election process and that were assigned a new channel, may request an alternative Channel assignment in response to this NPRM, if they wish.  This means that licensees that want to change their DTV allotments, but which are not in one of these four categories (that is to say, the station is technically able to construct its full, authorized DTV facility on its existing tentative channel assignment) may not request a channel change now, but rather must wait until the Table is finalized, and then may seek a channel change through the normal rule making procedures. 

Third, the filing freeze continues to be in effect, and it sounds like it will remain in place until the final table is adopted.  This means that modifications to full power stations that would exceed the contour previously approved for the station and proposed channel changes by Class A stations will continue to be precluded for the near future. 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

On Sept. 29, 2006, the Commission released its Second Order on Reconsideration and Second Report and Order (“Second Order”) on the issue of Children’s Television Obligations of Digital Television Broadcasters.  This Second Order addresses a few open issues from the FCC's earlier rulemaking on children’s programming that culminated with new rules in the fall of 2004. At the end of 2005, just before many of the new provisions were to go into effect, a joint coalition of television broadcasters, programmers, and public interest groups petitioned the FCC seeking to modify some aspects of the new rules.  The FCC put the joint coalition’s proposal out for comment earlier this year and has now adopted a few revisions to its children’s television programming rules, which are discussed further below.  These rules will go into effect in approximately 60 days.  The specific date will be a function of when the Second Order is published in the Federal Register, which has not occurred as of this writing.

In a nutshell, the Second Order:  (1) affirms the requirement that DTV stations broadcasting multiple streams of programming must increase the amount of kid vid programming in proportion to the amount of additional free video provided; (2) does away with limitations on the number of preemptions allowed under the rules; (3) adopts rules limiting the display of websites during children's programming; (4) clarifies the definition of commercial matter; and (5) extends the host selling rules to websites displayed during children's programming.  Please see our recent Bulletin for the full details regarding the changes to the Children's Programming rules. 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

By December 1, 2006, licensees of commercial and noncommercial digital television stations must file an FCC Form 317 electronically reporting on whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2006.  If the station did provide such services and generated any revenue from such services, then the FCC wants to know about it.  More importantly, the FCC wants its 5% cut of the gross revenues derived from such service.  Currently, only licensees are required to file the Form 317, so stations that do not yet hold a DTV license for some reason are not required to file.  The form is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through CDBS.   

• Email This
• Print
• Comments
• Share Link

Just a reminder that comments in the Commission's multiple ownership rule making proceeding are due Monday, October 23rd.  Comments may be filed either in paper, or electronically via the FCC's Electronic Comment Filing System.  And if you're not able to submit your comments by the 23rd, the deadline for Reply Comments is December 21, 2006.  So far the rule making docket is up to 121,557 comments, so make sure to add your voice to the record as the Commission reviews its ownership rules. 

Anti-consolidation forces have been organizing opposition to any liberalization of the ownership rules.  According to press reports, a number of groups held a press conference today to attack any proposals for allowing any more consolidation.  According to another story, these groups plan to file hundreds of pages of studies on the ill effects of media consolidation.  Interestingly, this comes on the heels of reports of NBC's announcement that media competition, including competition from the Internet, has forced it to adopt a new business model, dropping scripted programs from the first hour of prime time, and consolidating and shrinking its news staff.  These contrasting views of the effects of consolidation and the new media environment will no doubt make for a long and contentious proceeding.  Make your voice heard on these important issues. 

• Email This
• Print
• Comments
• Share Link

As we wrote here last week, a station has no obligation, and in fact no right, to edit a candidate's ad, so it has no liability for the contents of that ad. But at this time of year, we are receiving many calls about ads from third party groups who want to address an election, usually supporting or attacking a candidate.  For these non-candidate ads, including all ads dealing with ballot propositions, the station can choose whether or not to run the ad, and has complete editorial freedom to accept or reject an ad based on its content. Thus, as the station can elect whether or not to run an ad, it can be found liable if the ad contains material that is actionable. In fact, there have been cases where a station has been found liable for running a defamatory ad after having been put on notice that the claims in the ad were not true. 

A station has a duty to investigate the truth of an ad from a noncandidate.  Even though the station did not produce the ad, by broadcasting it, the station can be found to have liability.  Where an ad is false and contains any sort of personal attack on an individual or identifiable class of people, there is the possibility of a defamation claim.  When the ad deals with a public figure (such as an attack ad by a third-party group against a political candidate), for there to be liability, not only does the ad have to be false, but the claim must be made with "malice."  Malice can be found if the claim is broadcast either knowing that it was false or with reckless disregard for the truth.  In other words, if just by looking at the spot the station should know that it is false (e.g. a claim that your local Congressman was convicted of treason), the station should not run it.  Even if the ad is not clearly false on its face, if the station is put on notice that the claim is false yet continues to run it without investigation of the truth, then reckless disregard could be shown.

When a third party attack ad is broadcast, a station may well get a letter from a lawyer for the candidate being attacked, claiming that the ad is false, and threatening some action against the station if the ad continues to run.  Once the station is put on notice that the spot may be false, the station has a duty to investigate whether or not it is true before continuing to run the ad.  Most of the groups producing attack ads have information on hand supporting their claims, and they will quickly provide it to the station if asked.  The station should review that material, and discuss it with counsel and their corporate headquarters to determine how comfortable they are with the truth of the ad.  This is often not an easy question, but should be treated carefully to avoid any potential liability for running an ad that is not true.

• Email This
• Print
• Comments
• Share Link

The FCC today released a Public Notice announcing a 60 day settlement window for resolving conflicts between mutually exclusive Low Power Television applications for digital companion channels.  Between now and December 15, applicants in 192 separate groups can file engineering amendments to remove the conflict between their applications.  Parties cannot pay more than the reimbursement of an opponent's out-of-pocket expenses to remove a conflict.  If the conflicts are not removed by the December 15 deadline, applicants in each group will end up in an FCC auction, with the highest bidder getting the rights to build their digital station on the companion channel for which they applied.

These applications were filed in June in response to a window for Low Power Television stations to seek a second channel on which they can begin digital operations.  These channels will allow LPTV stations to begin digital operations while continuing to operate their analog facilities until the end of the digital transition.  LPTV stations not having this displacement channel will, at some point need to "flash cut" to digital - terminating their analog operations completely in order to commence their digital operation.  We reported on this filing window on May 25.

• Email This
• Print
• Comments
• Share Link

In one of those "man bites dog" situations, the FCC yesterday decided a case where a cable television system asked that the FCC add the communities that it serves to a nearby television market so that it could carry a television station from that nearby market.  This is in contrast to the usual market modification cases where a cable system will ask for relief from its television carriage obligations by suggesting that the FCC delete a community from a station's DMA, or where a television station will attempt to add communities to its market to get must-carry rights on a cable system in communities where the station would otherwise not be carried.

This case arose when a cable system located in Oklahoma wanted to carry a television station from Oklahoma City, even though the system served areas of Oklahoma technically in the Shreveport, Louisiana market.  Because a network affiliation agreement did not allow the Oklahoma City station to give retransmission consent to a cable system outside its market, the cable system decided to change the market so that the system would be considered to be in the station's DMA.  A creative though somewhat unorthodox solution to an unusual problem

• Email This
• Print
• Comments
• Share Link

Last week, the FCC had on its open meeting agenda the approval of AT&T's acquisition of BellSouth.  After the Democratic Commissioners were not ready to vote for approval of the transaction, the Commission delayed approval of the deal to give the public the opportunity to comment on some possible conditions to be put on the merger.  Does the process followed in this major Telco merger set a precedent that might be used in major broadcast proceedings, including the current multiple ownership proceeding? 

In the AT&T/Bell South merger, the two Democratic Commissioners objected to approving the deal without conditions.  As AT&T was willing to accept some conditions on the merger, the Chairman decided to ask for public comments on those conditions (see FCC public notices here and erratum here).  This was much the same process that the Democratic Commissioners complained was not followed in the summer of 2003, when the Commission tried to adopt revisions to the multiple ownership rules that were later largely thrown out by the Third Circuit Court of Appeals.  The Democratic Commissioners had contended that the rules adopted in July 2003 should have been been put out for public comment before becoming final - in which case some of the issues that came up in the Third Circuit, such as questions about the Diversity Index, would have been avoided.

As the Commission has now used this process in a major Telco merger, might it follow the same process before adopting any final rules in the Multiple Ownership proceeding?  In many ways, it was the process that the FCC used in adopting the new rules on children's television issues (though the FCC actually adopted new rules, the effect of the rules were stayed, while the Commission considered revisions proposed by major stakeholders before it adopted its revised set of rules late last month).  The Democrats reportedly asked for assurance that, before the Notice of Proposed Rulemaking was adopted in the multiple ownership proceeding, public comment would be sought on any final rules.  As there were three Republicans on the Commission who outvoted the Democrats on the ownership issues (while there were only two Republicans voting on the Telco merger as Commissioner McDowell recused himself ), no assurance of public comment on draft final rules was provided.  But perhaps, as the ownership Notice of Proposed Rulemaking had so few concrete proposals (see our summary of the proposals), this Telco case will signal a new procedure for dealing other major controversial issues. 

 

• Email This
• Print
• Comments
• Share Link

This past week's appearance of Governor Arnold Schwarzenegger with Jay Leno on the Tonight Show raised the question of when the equal opportunities requirements of Section 315 of the Communications Act apply.   While there has been extensive press coverage of the event, seemingly asking why the Democratic candidate is not by law entitled to equal time, the policy of the Commission has been to treat most interview programs, even ones that usually concentrate on entertainment matters, as "bona fide news or news interview" programs, exempt from the equal time obligations.

While, at one time, the FCC had considered only traditional news and news interview programs (like Meet the Press or Face the Nation) to be "bona fide news or news interview programs."  But in the 1990s, the Commission began to realize that political discourse and the coverage of political races often occurred in programs much different than these traditional news programs.  To encourage this expanded coverage of the political process, the bona fide news exemption had to be extended to programs that routinely featured newsmakers, though the programs themselves might more often focus on entertainment or less serious programming.

The morning "news" programs like Today and Good Morning America were quickly recognized as bona fide news interview programs, and then talk programs like Donahue, Geraldo and Sally Jesse Raphael were later recognized to be exempt.  And, as time went on, the Commission recognized that the even programs that were far more entertainment oriented could still have serious discussions (or at least discussions relevant to their particular audiences) about political issues.  Specific exemptions were granted to the Howard Stern program, Imus in the Morning, and to Entertainment Tonight, which all, from time to time, interviewed political figures or other newsmakers about topics of interest to their audience.  And, while many of these programs filed with the FCC asking for specific declarations that the programs were indeed bona fide news interview programs and exempt from the equal time requirements, the exemption applies to any program that meets the FCC's standards, without the need for a prior determination from the FCC that they are exempt.

 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

Google's recent announced plans to purchase You Tube has ignited a veritable blizzard of discussion about potential copyright litigation that could result from the user-generated content that forms the backbone of the You Tube experience.  For broadcasters who have been venturing into the on-line world, this discussion highlights the cautions that they should exercise in dealing with their own websites.

The issue has been raised as so many of the videos posted on You Tube contain copyrighted material, often used without permission from the Copyright holder.  While You Tube has reached agreements with some record labels and broadcast networks for use of their copyrighted material in exchange for some revenue sharing, other rights holders have not yet reached agreements.  Discussions of the purchase and the issues raised by the use of this copyrighted material can be found in many publications, including those in the Wall Street Journal and a discussion with the Electronic Freedom Foundation's Fred von Lohmann on SearchBlog.  These discussions focus on the defense from the Digital Millennium Copyright Act that gives bulletin board-type services exemptions from copyright liability if they do not encourage the violations, and act promptly to remove any material that they have been notified is in violation of the Copyright laws. 

Whether or not the DMCA fully protects Google, the discussion highlights the need for broadcasters to use care in their use of user-generated material on their website.  While broadcasters need not shun all user-generated content, they need to make sure that they have done their diligence.  Broadcasters should review the terms of use on their sites, making sure that they warn those who may post home-grown videos that they should not contain copyrighted material without permission of the owner.  If notified that their sites nevertheless contain copyrighted material for which no permission has been given, they should promptly take steps to remove the offending material.  And, if feasible, the broadcasters should even consider ways to identify infringing material and to remove such material.  And they should watch developments with You Tube and other similar sites.

• Email This
• Print
• Comments
• Share Link

Just a reminder that the new FCC application filing fees go into effect on Tuesday, October 17th.  As we reported earlier, the FCC has bumped its fees up slightly to reflect the consumer price index increases for the last two years.  Accordingly, licensees will find that the fees for applications submitted to the FCC will be slightly higher starting on Tuesday.  Some examples of the increased fees for typical broadcast applications are as follows:

  

Continue Reading...

• Email This
• Print
• Comments
• Share Link

At the FCC's open meeting today, the Commission adopted a First Report and Order and Further Notice of Proposed Rule Making taking the first steps towards permitting "low power devices" to operate in the broadcast television spectrum.  Although the actual Order has yet to be released, the News Release issued today states that the Commission has concluded that fixed (not mobile) low power devices can be allowed to operate on vacant TV channels, and that the marketing of such devices can commence the day after the DTV transition, February 18, 2009.  At the same time, however, the News Release states that the NPRM will invite comment on the rules necessary to protect TV broadcasting and other services from harmful interference, and seek input on whether such devices should be permitted on a licensed or unlicensed basis.  Furthermore, the NPRM will solicit additional information necessary to determine whether personal or portable devices can operate in any of the TV channels without causing harmful interference. 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

The Copyright Royalty Board (CRB) has just announced the required recordkeeping format for Internet webcasters streaming on the Internet. The full text of the decision can be found at http://www.loc.gov/crb/fedreg/2006/71fr59010-9.html

Basically, the requirements set forth by the CRB obligate those streaming their signals on the Internet must keep track of the music that they play for at least two weeks of every quarter, and report that music to SoundExchange in an ASCII format. The CRB found that an ASCII formatted report could be generated by Excel or Quattro Pro spread sheets. The Board's decision also sets forth specifics as to format, headers and other details of the reported information.

SoundExchange had previously prepared model reports for recordkeeping using Excel and has been ordered by the CRB to develop one for Quattro Pro. The Excel model will presumably be modified to come into line with the CRB's decision. A copy of SoundExchange's model can be found at http://www.soundexchange.com/licensee/licensee_cws.html#reporting

Services have been required to keep information about the music that they play since an interim Order issued by the Copyright Office in April 2004. The new Order from the CRB contemplates that the information that has been retained by Internet services be provided using this newly mandated format.

Continue Reading...

• Email This
• Print
• Comments (3)
• Share Link

In a decision released Friday, the FCC's Enforcement Bureau imposed a fine of $7000 on a station for violation of Section 73.49 of the Rules, requiring AM station towers with the potential for RF radiation at their base  to be completely enclosed within a fence or other secure enclosure.  What was notable about this decision is that the FCC rejected claims that the station should not be fined because it did not own the tower.

The Enforcement Bureau found that Section 73.49 imposed a duty on AM licensees, not on tower owners.  Thus, the duty to fence the tower is one that the licensee is responsible for meeting, even if some other party owns the tower.

The FCC noted that for all other towers, the primary duty for maintenance and repair of a tower is on the antenna structure owner, but even then the FCC imposes a secondary duty on the licensee to make sure that all legal obligations are being met.  While the FCC left for another day the issue of what would happen if a licensee did not meet that secondary duty in some case not involving an AM station, they made clear that, for AM stations, the licensee cannot delegate the responsibility for the fencing obligation.

• Email This
• Print
• Comments
• Share Link

Recently, we wrote about reports that the FCC would be creating an Obesity Task Force.  On September 27, Senator Brownback, FCC Chairman Martin, and FCC Commissioner Tate announced the formation of that task force.  The task force will examine the impact of the media and advertising on children's health.  The press release stated:

“Given the saturation of media in our children’s lives, we need to understand how media impacts their health and behavior,” said Brownback. “I’m pleased that representatives from the public and private sector are coming together to address the rising rate of childhood obesity and its relationship to media and advertising. I hope this task force helps government, parents, and the business community define how to address childhood obesity.”

The full press release can be found here.  This will be a process that broadcasters should carefully monitor

• Email This
• Print
• Comments
• Share Link

The FCC has released its further Public Notice regarding FM Auction No. 68, which consists of nine construction permits left over from two previous auctions.  The auction is set to commence on January 10, 2006, but more importantly, and likely of more interest to most readers, is the fact that in order to give potential auction applicants a chance to submit a short-form application to participate in the auction and to specify particular coordinates, there will be an across-the-board freeze on the filing of minor modifications for FM stations.  Specifically, from November 6 through November 13 the FCC will not accept FM commercial and non-commercial minor change applications.  In addition, the FCC has instituted a freeze, effective immediately, on the filing of counterproposals in proceedings to amend the FM Table of Allotments where such counter proposals would change the channel, class, or coordinates of any of the nine allotments on the block in Auction No. 68.  So FM stations should plan accordingly, and submit their minor modifications prior to November 6th.  A copy of the Public Notice accouncing the freeze is available here. 

With regard to the auction itself, the window for submitting an FCC Form 175 short form application to participate in the bidding runs from noon EST on November 6th until 6:00 PM EST on November 13th.  Upfront payments must be submitted by 6:00 PM ET on December 11th, and the FCC will hold a mock auction on January 8, 2007, to permit bidders to familiarize themselves with the bidding process. 
The auction itself will kick off on January 10, 2007.  A list of the nine construction permits and the opening bids are included as Attachment A to the FCC's Auction Public Notice. 

• Email This
• Print
• Comments
• Share Link

From watching television in almost any state with a contested election, it's clear that it's political season again.  As the ads multiply, one of the most common tactics to disrupt an ad campaign is to write a letter to a  station saying that the ad is untrue and should be pulled.  However, when an ad is purchased by the candidate or his authorized campaign committee in connection with the campaign, and contains the voice or picture of the candidate, the circumstances in which an ad can be pulled are quite limited.  Nevertheless, the questions are rolling in. 

In one race in the Midwest, stations received complaints about a Federal candidate ad that did not contain the full disclaimer required by BCRA (the Bipartisan Campaign Reform Act, which requires the now familiar statement from Federal candidates that “I’m John Smith, and I approved this ad”). A competing candidate urged stations to pull the ad that did not contain that disclaimer. In fact, stations cannot pull the ad that does not contain the disclaimer (as long as it has the FCC mandated “paid for” or “sponsored by” language at the end of the spot). While the candidate may get into trouble with the Federal Election Commission for not having the BCRA language, and the station may deny lowest unit rate if the required language is not on a spot that mentions an opposing candidate, the spot cannot be pulled from the airwaves.

In another race in a Western state, the question was raised about the use of one of the words that the FCC has ruled to be "indecent" in almost any circumstance.  At the NAB Radio Show, the FCC's Bobby Baker was asked if such  an ad could be channeled to the "safe harbor" periods after 10 PM.  Bobby answered that it was possible that such channeling would be permitted, but that the FCC has never addressed that question.  So, for now, the issue is unsettled until someone asks for a declaratory ruling or the issue is otherwise put before the FCC.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

The NAB Radio Show held the week before last, in conjunction with the Radio and Records Convention, was notable in its attention to new media. It’s been years since the NAB has devoted so much time to new media issues (remember the Streaming at NAB sessions that were held at the radio show early in the decade?).  And the new media sessions have perhaps never been as central to the Convention. Sessions on streaming, podcasting, downloads, blogging and just generally dealing with the media competition abounded at the convention.

The emphasis on the new media was perhaps most evident and presented most starkly in a pre-convention Summit put on by Jacobs Media. There, one presenter, Gordon Borrell of Borrell Associates, Inc., talked about the reach of media and information on the Internet, and just how prevalent it has become – even in reaching fighting for local advertising dollars – perhaps the one place that over-the-air broadcasters thought was most securely their own. Mr. Borrell pointed to websites such as those run by the Cape May Herald and the Lawrence County Kansas Journal-World as ones which show the power of the Internet to contribute to or eclipse their traditional sponsoring media (he said that the Lawrence site did over a million dollars a year in on-line revenue),. Even sites with no traditional media  partner, like Hartford.com, were said to be generating hundreds of thousands of dollars in local advertising revenue. What was perhaps most surprising was his assertion that in 40% of markets, there is an on-line site that has greater advertising revenue that the most successful radio station in the market.

Another presenter, Jason Calacanis, CEO of Weblogs,  went so far as to suggest that the principal purpose of today’s radio station should be using the station to drive traffic to the station’s website before the station itself became obsolete. Videos of the Jacobs Media Summit are available on-line, here.  While many others found this view to be extreme (Jack Isquith of AOL Music, in a session on streaming held several days later, talked at one point of the “elegance” of radio’s ability to reach local mass audiences more efficiently than on-line media), the whole convention seemed to be in agreement that radio needs to concentrate on the new media and develop their web presence. 

Continue Reading...

• Email This
• Print
• Comments (2)
• Share Link

The FCC today announced its agenda for its October meeting, to be held next Thursday, October 12.  Three of the items to be considered relate to television and video issues.  The FCC will be seeking comments for its annual report to Congress on the status of competition in the video industry.  At the same time, it will be seeking comments on the competitive practices in the broadband industry - perhaps looking at issues often discussed in the network neutrality debate.  These two proceedings are both Notices of Inquiry - in other words, comments are filed and considered by the FCC, but won't necessarily result in any new rules.  In fact, before adopting rules, the Commission would have to release a separate Notice of Proposed Rulemaking, seeking further public comment before any action is taken.

However, the third proceeding is a Notice of Proposed Rulemaking - and one that has already been controversial.  The Commission will issue a Notice of Proposed Rulemaking on the television "white spaces" proposal.  This proceeding will consider whether to allow wireless companies to operate in the spectrum currently reserved for exclusively for television operations.  In theory, as proposed by wireless and computer companies, devices can be made to transmit broadband wireless communications on television channels that are not in use in a particular location.  The television industry, on the other hand, has expressed great concerns with whether such devices can really operate without interference to present and future television stations.  The concern is especially acute given the on-going digital transition, when any interference to the broadcast signal may further confuse the consumer's adoption of the new technology.

This has already been a very contentious proceeding that television broadcasters will want to closely monitor.  Watch for the specifics of the Commission's proposal next week.

• Email This
• Print
• Comments
• Share Link

Within 10 days of the end of each calender quarter, broadcasters (both commercial and noncommercial) need to place into their public inspection files their quarterly issues programs lists.  We recently published an advisory with details of this quarterly obligation, and a suggested form for the public file report.  Remember that these reports need to be in your file by October 10.

While most broadcasters have recently had their licenses renewed, stations shouldn't think that they don't have to worry about these reports so early in their next renewal cycle.  In fact, in the renewal cycle that is just reaching its end, a number of stations were fined as much as $10,000 for quarterly issues programs list violations that had occurred early in the last renewal cycle.  So what you do now will save you money down the road.

• Email This
• Print
• Comments
• Share Link