At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism. At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown. The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations. The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation. From the discussion in the NPRM, new rules will apply to all broadcasters - large and small - and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with. Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.
Among the specific proposals on which the Commission asks for comments include the following:
Community Advisory Boards: The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station's programming. The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board. Other questions include how often the board should meet, and how the board members should be selected (or elected - though by whom, the Commission does not suggest).
Other Community Outreach Efforts. The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters. These would include the following:
- Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
- Focus sessions or town hall meetings
- Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
- Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.
Remote Station Operations. Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation. Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).
Quantitative Programming Guidelines. The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time. Questions include what categories of standards should be established (just local programs - or more specific requirements to set required amounts of news, public affairs and other categories - and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?
Main Studios. The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license
Network Programming Review. The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired. If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?
Voice Tracking. The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.
Local Music. While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music. With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.
Class A TV. The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.
In addition to these specific proposals to be considered in this proceeding, the Commission mentions a number of other proceedings that are either underway or which will be initiated to consider other issues relevant to the consideration of localism in broadcasting. The new proceedings to begin include:
Embedded Advertising. The Commission specifically states in the NPRM that it believes that there are a number of broadcast practices that violate the spirit of the Commission's sponsorship identification rules. On one of these issues, the Commission plans to launch a proceeding to investigate 'embedded advertising," commercial messages that are contained in program content (e.g. when the hero of a TV program sips a recognizable can of Coke or drives a Ford or goes to see a specific new movie). That proceeding was on the Commission's agenda in December, but was pulled at the last minute but apparently will return in the near future.
Network-Affiliate Issues. The Commission for years has had pending before it a petition by a group of owners of network affiliated television stations arguing that network affiliation agreements gave the networks too much power, effectively precluding affiliates from making programming choices that might better serve the interests of their communities. It appears that the Commission will be resolving those issues, perhaps in a new proceeding to specifically consider some of those issues.
In-State Television Signal Availability. The Commission promises to initiate a proceeding to determine if cable and satellite carriers should be permitted (or required) to provide subscribers with service from an in-state television station, even if the subscriber lives in a DMA where all the television stations originate in another state.
FM Channel Availability. The FCC has instructed its staff to come up with a tool to make it easier for the public to determine (on their own without hiring a consulting engineer) if a new FM station can be allotted at a particular community. Look for this tool to appear on the FCC's website in the future.
Other issues will be decided as part of other on-going proceedings. These include:
Enhanced Disclosure Obligations. In a simultaneously released Order, the FCC imposes certain enhanced disclosure obligations on television broadcasters - requiring that new forms be completed quarterly by broadcasters reporting on the types of programming that they broadcast, and requiring that public file information be maintained on the station's website (if the station has a website). The imposition of similar requirement for radio is already under consideration in the Digital Radio proceeding.
Emergency Communications. The obligations of broadcasters to communicate with their audiences in times of emergency, including communications with the hearing impaired and with audience members who do not speak English, are to be considered in an Emergency Communications docket that the Commission states will be decided soon
LPFM Issues. Issues about providing LPFM stations with more protections from interference from full power stations, and a potential preference against FM translator stations, will be addressed in a Further Notice of Proposed Rulemaking in which the Commission will soon be receiving comments (see our post here)
Payola, Video News Releases and Sponsorship Identification. The Commission currently has proceedings underway to enforce its payola rules in specific cases, and to gather more information about the use of Video News Releases (VNRs) by broadcasters, as well as certain specific enforcement actions. The Commission intends to pursue these issues
Increase Opportunity for New Entrants. In a separate proceeding adopted at the December meeting, the Commission adopted an order containing specific rules to enhance the opportunities for new entrants into broadcast ownership, thus increasing local media diversity. That proceeding will also raise a number of new issues. The text of the new rules adopted in that proceeding, and its proposals for other new rules, has not yet been released, but a number of localism related issues will be discussed in that proceeding.
Comments on this extensive list of proposals for new rules are due only 30 days after a summary of this proceeding is published in the Federal Register. The Commission has given the public only 30 days to comment on proposals to return the broadcast industry to the regulatory structure of the 1980s. All broadcasters should be paying attention to these proposals, as they will have a direct impact on their bottom line, and will also create numerous traps into which a broadcaster can fall at renewal time. The five and ten thousand dollar fines that we saw in the last renewal cycle for stations that did not complete all of their quarterly issues programs lists may well be nothing compared to fines for violating some or all of these new standards if adopted. Pay attention to this proceeding!