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The FCC today issued the long-awaited text of its decision on Digital Audio radio - the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future - 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues - some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas - one to be used solely for digital use - upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below. 

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Although the FCC has not issued a public notice announcing that the revised form is available, the new FCC Form 398 Children's Television Programming Report is now available on the Commission's web site.  The form is available here, and should be used in lieu of the previous version of the form.  As we've written previously, the FCC revised its Form 398 to reflect the extension of the children's programming rules to digital television.  Accordingly, the Form 398 now solicits information on the children's programming provided on each of the station's digital program streams, as well as on the analog channel.  For stations that multicast multiple programming streams, the quarterly report can require a bit of additional time to prepare. 

Because the revised form was not available in April, when the first quarter reports would have been due, the Commission granted an extension of time until June 10th for television stations to prepare and file their FCC Form 398 Children's Television Programming Reports.  Thus, stations should be sure to complete and file the form with the FCC and place a copy of the report in their public inspection file by June 10th.  Going forward, the quarterly filing deadlines will be back on schedule with the Second Quarter Report due by July 10th. 

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We wrote last month about the fact that the Copyright Office has initiated a major proceeding to reexamine the statutory licenses that allow cable systems and satellite distributors to retransmit the programming of local television stations.  A statutory license allows retransmission of television signals by these multichannel video providers without getting the consent of copyright owners of each and every program (and program elements contained in the programming, e.g. music) that a broadcast station may feature in its programming. As part of this proceeding, the Copyright Office promised to hold public hearings on these licenses. The Office has announced the schedule for these hearings, to be held from July 23  to July 26. Parties interested in participating in the hearings need to register their interest on or before June 15. The Copyright Office’s notice about the hearing, which contains instructions on the process for filing a request to testify, can be found here.

Written comments in this important proceeding are due July 2. The Copyright Office has also encouraged interested parties to file suggested questions to be posed to the participants in the hearing by July 2.  Reply comments in the case are due on September 13.  The Copyright Office has also encouraged parties to respond to the testimony presented at the hearing in their reply comments. 

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The Advanced Television Systems Committee, the technical organization that has guided the technical development of Digital Television in the United States, this week requested proposals for the development of handsets and a delivery system that would allow television broadcasters to deliver their content directly to mobile receivers. This proposal would remedy one of the shortcomings of the current television digital transmission system – that fact that it has been designed for in-home reception. Outlines of the proposal are due on June 21, with detailed technical specifications to be submitted on July 6. A copy of the full Request for Proposal can be found on the ATSC web site, here.

In 2000, while the current 8VSB standard was just beginning to be implemented in the United States, a number of television companies, spearheaded by Sinclair Broadcasting, suggested that the proposed system was not sufficiently robust for mobile applications and otherwise suffered from reception issues.  These groups suggested that a COFDM transmission system similar to that used in Europe be substituted for the US system.  At that time, it was concluded that the digital transition was already too far along to try to change systems, and that the principal use of digital television was for in-home viewing so that the mobile reception benefits, if they could in fact be offered by the COFDM system, did not justify the change in transmission systems.

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The FCC has asked for public comment on a change in its rules which would allow broadcasters to conduct proofs of performance for a new directional AM antenna system to be conducted by a computer modeling system, rather than the extensive system of field tests that currently are required. While generations of broadcast engineers have grown up slogging through swamps, driving through fields and even flying in helicopters to conduct field strength readings to prove that AM antenna systems are operating in compliance with the parameters specified in their applications as submitted to the FCC, this proposed new system would allow all this to be done by computer in most instances. Comments on the proposals can be filed with the FCC on or before July 23, with replies due on August 22.

This proposal was filed at the Commission by a consortium of broadcasters, broadcast engineers and antenna manufacturers who had concluded that the existing process was overly expensive and cumbersome and similar results could be achieved by current computer technology.  Whether the FCC concludes that this is in fact the case will depend on the comments filed in response to this notice. 

As these comments are requested to refresh and update the record in an existing rulemaking proceeding to assess the performance of AM directional antenna systems – a proceeding which was actually initiated by a Petition for Rulemaking filed in 1989 – the FCC could immediately issue new rules following the results of this inquiry. Thus, relief for AM broadcasters, making the process of building AM directional antenna systems much faster and cheaper, may be on the way in the short term.

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Much has been made in the press in the last day about SoundExchange "extending" the Small Webcasters Settlement Act and allowing small webcasters to pay their royalties on a percentage of revenue basis.  However, these reports overstate what happened yesterday. SoundExchange simply made a preliminary, conditional offer to settle the case to the group of independent commercial webcasters that I represented in the Copyright Royalty Board proceeding . The offer is to extend the SWSA with some "tweaks" that are yet to be negotiated. Unless and until a full agreement is reached regarding these "tweaks," and as to other issues that have been raised by the independent webcasters, the rates set out by the Copyright Royalty Board remain unchanged and will go into effect on July 15.

A simple extension of the SWSA through 2010 does raise some issues that have been reported elsewhere, including in the Radio and Internet Newsletter.  An SWSA extension would retain the caps on revenues of small webcasters - limiting their revenues to $1.2 million.  Up to that point, they would be paying 12% of their gross revenues.  But once they earned a dollar more than that cap - the percentage of revenue rate would disappear retroactively for the entire year in which they exceeded the cap and all of  their performances back to the beginning of the year would be subject to the CRB per performance royalties - effectively exceeding the total revenues of the independent webcaster by many multiples. While the $1.2 million cap was fine in 2002 when it was used in the agreement reached pursuant to the SWSA , that was when webcasting was a nascent industry and was simply looking for a way to survive.  It doesn't work in 2007. This cap on revenue would effectively limit the independent webcaster's growth and investment opportunities - as who would invest in an entity with an absolute cap on their financial growth?

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On Friday, the Commission issued two digital television Orders acting on 145 requests for extension of time to construct DTV facilities, and 192 requests for waiver of the "use-it or lose-it" deadlines.  These Orders, available here and here, are the next substantive steps in the DTV transition and resolve requests for extension of time and waivers that have been pending for the past year or so. 

Reasons for seeking an extension of time to construct DTV facilities or a waiver of the "use-it or lose-it" deadline ran the gamut from financial hardship, to equipment delays, to needing to swap a digital antenna for an analog antenna in the top-mount position on a tower.  The Commission emphasized that licensees have had a significant amount of time to plan for the transition and that it is essential that all stations complete the transition to digital in a timely fashion, however, it appeared to be fairly understanding of the circumstances facing stations as it granted the vast majority of the requests, including many for financial hardship.  Only a handful of applications for extension of time or for a waiver of the "use-it or lose-it" deadline were denied, with the bulk of the stations receiving a standard six-month extension of time to construct and to comply with the increased coverage deadlines.  Stations that had pending DTV extension or waiver requests are encouraged to review the orders carefully, as the Commission granted several different categories of extensions depending on the particular facts and circumstances. 

In addition, the Commission simultaneously released its awaited Notice of Proposed Rule Making regarding the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, the details of which will be discussed in a subsequent posting.  This NPRM was adopted at the April Open Commission Meeting and was summarized in earlier blogs, which can be found here. 

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As we reminded broadcasters earlier this month, the first filings of FCC Form 397, the Broadcast Mid-Term EEO Report, will be due to be filed at the FCC on June 1.  This report is filed 4 years after the due date for filing of a station's license renewal application, and is to be filed by all radio station employment units with more than 10 full time employees, and all TV station employment units with five or more employees.  The first reports are due on June 1 by radio groups in Maryland, Virginia, West Virginia and the District of Columbia.  Every two months thereafter, stations in a different group of states will need to file their Mid-Term reports.  Last week, the FCC released a Public Notice clarifying some aspects of the filing process.

The Public Notice addressed two principal issues - (1) what happens when radio station clusters and their associated station employment units include stations in different states with different filing deadlines, and (2) what happens when employment units include both radio and television stations in the same state.  For radio employment units with stations in different states, the FCC reminds broadcasters that they should have made an election about which state's filing deadline to use back in 2003 when the current EEO rules were adopted, and they should have been using that election for each of their public file reports since then.  That same election would control the filing deadline for the Mid-Term report. 

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Three of the FCC Commissioners have responded to the Congressional inquiry about the Commission’s rules regarding junk food advertising about which we wrote here.  This inquiry was initiated by Congressman Ed Markey, Chairman of the House of Representatives Subcommittee on Telecommunications and the Internet. The Congressman's letter had urged the FCC to move quickly to implement rules limiting the advertising of unhealthy food aired during broadcasting directed to children.  The Commissioners' responses uniformly indicate the potential for regulation, depending in part on the outcome of the activities of the industry Task Force formed at the initiation of, and with the participation by, the FCC and Congress. See our reports on the formation of the Task Force, here.  The Commissioners all note that should the Task Force fail to conclude that the industry has achieved satisfactory results through self-regulation, FCC proceedings might be required to insure that children are not unduly exposed to junk food advertisements. 

Two commissioners, Chairman Martin and Commissioner Tate, responded jointly, and indicated that the FCC could explore regulation of unhealthy food, perhaps looking at guidelines adopted in other countries as a model for US regulation.  These Commissioners' statement even address the issue of regulating children's programming on cable television networks, where they claim that there is much exposure to ads for junk food.  These statements make clear that this is not just an issue for the broadcast industry.

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The FCC recently released a decision granting two waivers of its requirement that any communications tower which has lighting requirements and is registered with the FCC be visually inspected at least quarterly to insure that all of the required lights are working. The waivers were granted to American Tower Corporation and Global Signal, Inc., both operators of thousands of communications towers nationwide.  The waivers were based on showings by the companies that the automated systems that they employ to monitor tower lights were sufficiently robust that they could insure that the lights were operational even without visual inspection. The Commission stressed the reliability of the monitoring systems, and the cost savings to the companies, in granting the waivers.

The importance of this decision to other owners of communications towers came in the concluding paragraph of the FCC decision. There, the Commission stated that this decision paved the way for other tower owners to adopt sufficiently reliable systems so that similar waivers could be granted.  Thus, for companies with multiple towers, this decision may give them the incentive to install similar systems and seek waivers of the tower inspection rules. For other companies, this decision reminds them of their visual inspection obligations (and the records that should be kept of such inspections to be available in the event of an FCC inspection).

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The battle over performance royalties for broadcast stations seems to have been officially joined. We wrote last week about the rumors of a coalition of record companies and musicians that was reportedly forming to lobby Congress to enact a performance royalty on broadcast radio for the use of sound recordings, and the NAB’s immediate reaction, writing a letter to Congress to oppose the new royalty. Now, the press reports that the pro-royalty group has responded with their own letter to every Congressman, asking that immediate action take place to impose the royalty. Two letters in one week indicate that this summer may be a hot one for broadcasters on Capitol Hill.

The royalty being discussed would be one new to broadcast radio in the United States, but one well known to non-broadcast digital music providers such as Internet radio – as it is the same royalty that has been the subject of so much controversy since the Copyright Royalty Board released its Internet radio royalty decision in early March, more than doubling between 2005 and 2010 the royalty that those stations pay for the use of sound recordings. The royalty on the use of sound recordings (the song as recorded by a particular artist) is in addition to the royalties that are paid to ASCAP, BMI and SESAC for the underlying musical composition. So, if imposed, this would be a new royalty for US terrestrial broadcasters.

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Two long awaited broadcast items seem to be missing in action at the FCC. Both the final rules on digital radio ("HD radio") and the Commission’s Notice of Proposed rulemaking on using FM translators to fill in gaps of the signals of AM stations, while expected quite a while ago, have still not been released by the FCC. The digital radio item, adopting rules on digital radio, eliminating the need to file for experimental authority for multi-channel FM operations and allowing AM stations to operate digitally at night, was adopted by the FCC at its meeting in March, yet the final text of the decision still hasn’t been released.  As the text has not been released, the effective date of the new rules has not been set.  Those AM stations ready to kick on their nighttime digital operations continue to wait.

As we explained in our previous posting on this matter, here, the digital radio order also contains a Further Notice of Proposed Rulemaking, addressing issues such as the public interest obligations of broadcasters on their multicast digital channels. That was one of the items that was supposedly delayed the action that finally occurred at the March meeting, and perhaps it is delaying the release of the text of the order in this proceeding

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While the FCC continues its series of public hearings on possible revisions to its multiple ownership rules, the issue of newspaper-broadcast cross ownership is now squarely before the FCC in a number of proceedings. For instance, in the applications proposing a transfer of control of the Tribune Company, waiver requests have been filed in the markets where the company owns both newspaper and broadcast properties.  These markets include some of the largest television markets in the country including Los Angeles, Chicago and New York.  As the current rules prohibit the ownership of a daily paper and either a radio or television station in the same market, Chicago, where Tribune owns radio, TV and newspaper properties and has done so for many years, asks for waivers for both stations.  The FCC just designated the application for transfer of control of the Tribune Company as a permit but disclose proceeding, meaning that parties can talk to the FCC decision makers about the case, as long as they file a written disclosure statement with the FCC for inclusion in the record of the case.

 Also, press reports note that the petitions to deny have been filed against applications for the renewal of Fox's television stations in New York, arguing that the combination of  Fox's television stations in the market with the ownership of the New York Post is not in the public interest.

Seemingly, the proposed purchase of the Wall Street Journal by News Corporation, the owners of Fox,  if it were to ever come to fruition, would at least be reviewed by the FCC, as the Journal is published in New York, where Fox owns television stations.  However, FCC precedent established when Gannett purchased a Washington, DC TV station, in the same market where USA Today is published, would seem to set a precedent for the treatment of a specialized national newspaper like the Journal. While published in New York, the Journal really is national in scope - and not focused on local news, sports, entertainment or advertisers in the same manner that a local newspaper would be. 

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In recent years, patent issues have arisen in many areas affecting online media.  In a recent decision, the Supreme Court decided that lower Courts have more discretion to review whether a patent should be rejected for "obviousness."  To be valid, a patent must cover some degree of innovation, and should not be simply an idea that would be obvious to the normal person when looking at a particular situation.  If the claimed invention would be "obvious" to a person looking at the particular circumstances and using common sense, the Court found that a patent could be rejected.  A memo from our law firm on the details of the decision can be found, here.

As set forth in the memo, the extent to which this decision will affect existing patents and pending disputes remains to be seen.  In the on-line media world, patent issues have been arisen for many companies.  For instance, there have been patents claims asserted against companies providing on-demand digital media, pop-up billing screens, ad insertion technologies and even on-line contests.  This decision may not affect these patent claims or any of the hundreds of others that have been the subject of dispute among digital media companies.  But continuing litigation in this area should be monitored to see if developments affect any patent claims that may be asserted against technologies that your company may be employing.

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The Internet Radio Equality Act was introduced in the Senate today by Senators Wyden and Brownback.  The Bill tracks the substance of the Bill that was introduced in the House of Representatives by Congressmen Inslee and Manzullo.  The Senate Bill in addition includes broader provisions providing relief to large noncommercial webcasters who were not specifically addressed by the House legislation.

The Press release on the introduction of the bill can be found here.  In introducing the legislation, the Senators cite the webcasters, the listeners and the musicians who will benefit from the preservation of Internet radio.  Of course, the bill has a long way to go before it becomes law.  See our discussion offered when the House Bill was introduced discussing the process that a bill will follow before it becomes law. 

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A story in the Hollywood Reporter indicates that a coalition of record companies and associations representing performing artists are preparing to initiate a Congressional lobbying effort to push for a royalty for performance rights in sound recordings that would apply to broadcasters' over-the-air transmissions, not just their Internet streams.  Broadcasters currently pay performance royalties  to ASCAP, BMI and SESAC for their over-the-air music programming - royalties that are paid to composers (or music publishing companies) for the use of the underlying musical composition.  Digital operators (satellite radio, Internet radio, digital cable radio) pay royalties for the composition and also pay royalties for the sound recording, i.e. the actual performance as recorded on a record, CD, or digital download.  The copyright for the sound recording is usually held by a record company.  The performance right in a sound recording did not exist in the United States until 1995, and still applies only to digital transmissions.  Obviously, if extended to broadcasting, this could result in huge expenses to broadcasters - amounts for which they probably have not planned.

This is not the first time that such a royalty has been mentioned.  In introducing the PERFORM Act earlier this year, Senator Feinstein of California suggested that this legislation, which makes certain changes in the digital royalty standards that apply to various services as well as to other copyright license provisions, was only a first step in clarifying royalty issues.  In statements made at the time, there were indications that she favored further legislation to adopt a sound recording performance right for broadcasters.  At last week's Future of Music Conference, David Carson, General Counsel of the Copyright Office, also spoke in favor of such a right - suggesting that if SoundExchange collected money from broadcasters they might not need to seek so much from Internet Radio companies (see our coverage of the Internet radio royalty issues, here).

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In addition to preparing their Annual EEO Public File Report by June 1, larger radio stations in Washington, DC, Maryland, Virginia, and West Virginia must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report.

Please note, only radio Station Employment Units located in these four jurisdictions with 11 or more full-time employees are required to file an FCC Form 397 by June 1, 2007.  The Form 397 provides the FCC with copies of the Station Employment Unit’s two most recent Annual EEO Public File Reports (the reports from this year and last year), and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures.  While normally the Annual EEO Public File Report is simply prepared and placed in the station’s public file and on its website (if it has one), at the mid-term of the license term and again at the time the station’s license renewal application is filed, stations must actually provide the FCC with its two most recent Public File Reports.  This allows the FCC and the public to review the station’s compliance with the EEO rules.  

June 1, 2007 is the first time that the Mid-Term EEO Report will be filed by any group of stations, and marks the mid-point in the license term for radio stations in DC, Maryland, Virginia, and West Virginia. Television stations in these states will file a Mid-Term EEO Report this time next year.  A copy of the FCC’s Public Notice reminding stations of this filing requirement and listing the other radio stations that will file such reports in 2007 is available here.

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Annual EEO Public File Report Deadline—June 1

Affected States:   Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming

By June 1, 2007, radio and television Station Employment Units in the states listed above must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.  A Station Employment Unit (SEU) is a group of stations, under common control, serving a common area, and sharing at least one employee.  If an SEU includes stations in different states with different filing deadlines, the SEU can select which filing deadline it will use.  Once selected, the Annual Report filing deadline should be consistently applied for all future EEO Annual Reports. The states with the June 1 filing deadline are:  Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming.

Biennial Ownership Report Deadline—June 1

Affected States:   Radio- Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming;  TV- Michigan and Ohio

In addition, by June 1, 2007, radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming, and television stations in Michigan, and Ohio must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E.

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The FCC last week considered two requests for reconsideration of fines issued to broadcasters for violations of FCC rules relating to their broadcast towers.  While the FCC reduced one fine because of the licensee's inability to pay the amount originally specified, both broadcasters will have to make payments to the Commission because of their failures to meet the FCC's rules regarding the ownership of broadcast towers.  These cases remind broadcasters of their obligations to meet the Commission's tower rules, and should cause all broadcasters to check their compliance. 

In the first case, the FCC reduced the fine of a licensee who had failed to fence its AM station's tower, but only because the licensee proved that it could not pay a higher fine.  But a $500 fine was still imposed as the owner had no fence around a series-fed AM tower.  The FCC pointed out that its rules require that any AM tower that has the potential for an RF radiation hazard at the base of the tower must be fenced. This station had violated that rule.

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In one of those "from the depths of history" moments, the FCC on Friday released a Public Notice asking that the record be refreshed as to whether television stations that program a substantial amount of home shopping programming operate in the public interest, and whether they are entitled to must-carry status on cable systems.  In 1993, the FCC found that these stations did operate in the public interest - providing shopping opportunities to the homebound and alternative programming not available on other stations.  Soon thereafter, a petition for reconsideration of that action was filed, arguing that these stations did not serve the public interest for reasons including the fact that they preempted the use of spectrum by others who could provide better service.  That petition sat at the Commission for the next 14 years.

Now, when home shopping stations have largely disappeared from the television universe, the FCC has resurrected the petition, and is asking for public comment on the issues that it raises, and is even expanding the inquiry.  The Commission asks how many television stations still program substantial amounts of shop at home programming, whether the programming is in the public interest, whether these stations preclude other more worthy uses of the television spectrum, and whether these stations meet their public interest obligations including their obligations under the FCC's Children's Television rules.

Comments are due 30 days after the Notice is published in the Federal Register, and Reply Comments are due 15 days later.

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Last week, House Commerce and Energy Committee Chairman John Dingell reportedly stated that he favored the return of the Fairness Doctrine, and couldn't see why broadcasters would be opposed.  We've suggested reasons, here and here.  But the reports are that Congressman Dingell may try to move legislation to accomplish the return of the Doctrine later this year.

But, in good news for broadcasters, Congressman Dingell said that he didn't foresee any action on violence regulation this year - absent some triggering event - presumably something like the Janet Jackson incident which galvanized Congress into action to raise indecency penalties.  Perhaps one less concern for broadcasters, but the Fairness Doctrine appears to be a real concern to watch.

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In an action announced on the blog of popular Internet radio service Pandora, the service has decided to block Internet radio streams that are requested by users with IP addresses that are not in the United States or Canada.  This action highlights that fact that it is not only the Copyright Royalty Board decision on US royalties that is causing uncertainty for many Internet radio stations.  Royalty obligations for overseas listening also adds to the uncertainty and potential liabilities of these services.  Several US Internet radio stations have in the past received royalty notices from overseas collection agencies, asking for royalties for the use of sound recordings that are streamed to users in their countries.  This had caused other US streaming companies to block access to their services to foreign listeners. As the royalties that are paid to SoundExchange only cover US listening, until there is a reciprocal agreement between these collection agencies allowing one country's agency to collect for worldwide usage and then distribute the money to the appropriate rights holders worldwide, potential liabilities to multiple worldwide collection agencies will persist. 

At last week's Future of Music Policy Day in Washington, DC, SoundExchange President John Simson said that SoundExchange was hosting a meeting in Washington for representatives from a number of international collection agencies in efforts to work out an agreement that would provide a reciprocal collection and distribution agreement for Internet radio services.  In this instance, Internet radio operators should be on the same side as SoundExchange, rooting for its sucess in this negotiation to provide one-stop shopping for royalties for all of their listeners.

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The front page of the Sunday New York Times featured a story titled "Shock Radio Shrugs at Imus's Fall And Roughs Up the Usual Victims."  The story reports on radio station talk programming and how the Times' reporters found numerous instances of what they refer to as "coarse, sexually explicit banter" and "meanness."  The Times reports that these programs could lead the announcers and the stations owners into dangerous territory - either from FCC fines or through advertiser cancellations.  The Times also correctly indicates that the FCC usually does not initiate actions against such programs based on its own monitoring, but instead based on listener complaints - almost an open invitation for such complaints to be filed based on the paper's report.  With reports such as this hitting the popular press, after being brought to the forefront of public attention by the Imus affair, and earlier this year by the Sacramento contest gone wrong for the the Wii (here), can calls for regulation be far behind?

The Times own report asks the question as to whether the FCC or Congress will step up regulation in light of the Imus affair.  Interestingly, it avoids the questions raised by its own reports as to where lines would be drawn in any regulations.  For instance, in the story, the Times identified some programming that might cause concern under FCC indecency guidelines depending on the context in which the cited material was used, the report also cites several instances which assuredly do not fit within any FCC prohibitions.  In fact, some of the samples cited by the article do not seem much more "coarse" than what you might find on some Sunday morning or cable television news-talk programming.  For instance, the Times cites, seemingly as an example of "crude remarks," statements made on the Mancow syndicated radio talk programming, where Mancow allegedly asserted that radical Muslims "would not stop until they had flattened American religion like a steamroller" and then went on to say that he didn't want his children to be killed or "brainwashed" into Islamic beliefs.  While I'm sure that the Mancow language was not the same as that which might be used on a political talk program - aren't similar expressions about the goals of radical Islam often aired on such news talk programs - often by members of the political establishment?  Would the Times want to regulate the discussion of ideas based on how or where they were expressed?  In any content regulation, lines are hard to draw.

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In a letter to FCC Chairman Martin and Commissioners Copps and Tate, Congressman Edward Markey, head of the House of Representatives Subcommittee on Telecommunications and the Internet, has asked that the FCC take strong steps to restrict the advertising of unhealthy food in children's television programs.  While applauding voluntary efforts promised by some broadcasters to include in their children's programing more Public Service Announcements (PSAs) for healthy eating, Congressman Markey urged the FCC to do more by cutting in half to 6 minutes per hour the amount of permissible advertising in children's programming , and by finding that a station had not met its obligations to broadcast educational and informational programming directed to children if the station aired ads for unhealthy foods during a program which would otherwise qualify as a toward meeting the station's obligations.

The letter from Congressman Markey, while citing efforts in other countries to enforce similar regulations, does not address basic issues with each of his proposals.  First, if sponsorship of children's programming is cut in half, won't that also cut the incentive of broadcasters to air such programs?  Cutting sponsorship to the bone would seem to guarantee that broadcasters will do the absolute minimum amount of children's programming required, so that they can air programs where there are no advertising restrictions.

These requirements would also seem to make broadcasters into the food police.  Broadcasters will have to educate themselves as to the nutritional qualities of various food products to make sure that nothing impermissible gets on the air.  And where will lines be drawn?  Could a station safely advertise a fast food store if the ads featured only the salads sold by the store - even where that store might also sell not so healthy alternatives?  If definitions are drawn by numerical limits on contents such as sugar, salt and fat (as suggested by the letter), will these limits necessarily lead to advertising the most healthy foods?  Will broadcasters be forced to substitute for parents in making decisions about what their children will eat?

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This afternoon the Commission released its Notice of Proposed Rule Making (NPRM) regarding the carriage of digital television (DTV) broadcast signals by cable systems.  The NPRM was adopted at last week's FCC open meeting and and seeks answers to essentially two questions:  First, how to objectively define "material degradation" for purposes of determining compliance with the statutory requirement that cable systems carry local broadcast signals without material degradation; and second, how to ensure that the signals of digital television stations are available to analog cable subscribers after the DTV transition is completed on February 17, 2009.  In connection with these two specific issues, the NPRM also seeks input on ways to "promote the goal of . . . transitioning all consumers - including cable consumers - to digital" as a general matter. 

Both issues are sure to draw a significant number of comments, however, the question of how the Commission's cable carriage rules will be modified to address the conversion of local broadcast stations from analog to digital will undoubtedly be a hotly debated issue.  The Commission has taken as its starting point for the discussion of DTV cable carriage the statutory requirement that broadcast stations that are entitled to mandatory cable carriage must be viewable via cable by all television receivers of a subscriber that are connecetd to a cable system by a cable operator or for which a cable operator provides a connection.  To achieve the viewability requirement the rulemaking suggests two alternatives for cable systems:

1. Carry the signals of must-carry stations in analog format to all analog cable subscribers, or
2. For “all-digital” systems, carry those signals only in digital format, provided that all subscribers wtih analog TV sets have the necessary equipment to view the broadcast content. 

Comments will be due on July 16, 2007, with Reply Comments due August 16, 2007, and a copy of the NPRM, which includes the Commissioners' statements on the issue, is available here.  Comments may be submitted in paper, or through the FCC's Electronic Comment Filing System (ECFS) available here.

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As we reported recently (see earlier blog here), at the end of April, the FCC issued a Public Notice asking for information as to the compliance of television broadcasters with their obligations to provide programming that addresses the educational and informational needs of children.  The Commission asks questions in its Notice as to whether television broadcasters are complying with the rules, and whether the rules provide sufficient guidance to broadcasters as to what kind of programming satisfies the rules for educational broadcasting.  That Public Notice was published in the Federal Register today, establishing the dates for submitting comments to the FCC on the issue. 

Accordingly, interested parties have until June 1, 2007 to submit Comments to the FCC, and until June 18, 2007 to submit Reply Comments.  This is a very short period for comments and the clock is now ticking.  So parties interested in providing the FCC with input about the status of children's television programming and compliance with the Commission's children's programming rules are encouraged to start drafting now.  Comments can be submitted in paper, or through the FCC's Electronic Comment Filing System (ECFS) available here. 

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On the same day that many webcasters were on Capitol Hill lobbying for the Internet Radio Equality Act, the Copyright Royalty Board issued its Final Determination of Rates and Terms today, and it was published in the Federal Register.  That action starts the clock ticking on appeals which must now be filed in 30 days.  In the Final Determination, the Board included a few revisions in its initial decision, reflecting the issues that it addressed in response to the Rehearing motions - including provisions adding a transitional period of two years during which webcasters can pay using an Aggregate Tuning Hour formula instead of paying based on each performance.  Surprisingly, the Board also amended the rules that it adopted governing the timing of the first payment under the new royalty rate, making the first payment due 45 days from the end of the month during which the Final Determination was issued.  As the decision was issued today, May 1, that would delay the due date for the first payments under the new royalties until July 15.

The statute governing the Copyright Royalty Board allowed the Library of Congress to review the CRB decision to determine if the Librarian (through the Copyright Office) saw any obvious errors of law.  Apparently, the Librarian found none (though that does not mean that there are not issues that can be raised on appeal), leading to the publication of the decision in the Federal Register.  Appeals are due 30 days after that publication.  On that date, parties file a Notice of Appeal, which provides notice to the Court of Appeals that parties believe that the decision was in error.  After those notices are filed, the Court will set briefing schedules and oral arguments.  The appeal process that can take a year or more before a decision is rendered.

Our previous coverage of the CRB proceeding can be found, here.

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