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In a Consent Decree released this week, the Commission agreed to accept a "voluntary contribution" of $16,500 to the government from a tower owner, instead of a fine, for its failure to conduct an Historical Review of the locations of three towers prior to their construction.  Under the Nationwide Programmatic Agreement which implements the National Historic Preservation Act, the construction of most new towers (essentially unless they are in Industrial zones, areas already cleared by a review, in a utility corridor or replace existing towers), require that the owners coordinate with State or Tribal Historical Preservation Officers ("SHPO" or "THPO") to assure that the new construction will not have an adverse effect on any historic site listed on or eligible for listing on the National Register of Historic Places.  The burden is on the tower owner to make sure that the rules for such a review are followed, with the FCC having the power to take action against any applicant who does not conduct such a review.  A full description of the requirements of the Programmatic Agreement can be found on the FCC's website, here.

This decision demonstrates how seriously the Commission takes these requirements.  In this case, the tower owner realized that it had constructed the tower without having done the proper review, conducted that review, found that there was no impact on any historic location, and voluntarily reported its failure to the FCC.  Nevertheless, the Commission agreed to the fine, plus a requirement that the tower owner appoint a compliance officer and submit reports to the FCC of its compliance with the environmental laws for a period of two years.  Constructing a tower?  Make sure that you conduct the proper studies.

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Just prior to the filing of comments in the FCC's Localism proceeding on April 28, one FCC Commissioner has spoken out, condemning these proposals as being unnecessary in a world of vast media competition, and likely unconstitutional.  According to press reports, Commissioner Robert McDowell last week argued that the rules were unnecessary and counterproductive in a world of media plenty.  The Commissioner pointed to all of the competition from digital and traditional media and asked why the Commission should impose on broadcasters rules abolished 20 years ago - rules which will put them at a competitive disadvantage in the new media world.  These are sentiments that we have repeatedly echoed here.

Today, as comments were being submitted to the Commission, a letter from 23 Senators was sent to the Commission making many of the same arguments.  The letter suggests that the Commission was imposing unreasonable costs on broadcasters when these broadcasters have an economic incentive to serve the public or risk the loss of their audience and the resulting loss of advertising and income.  In other words, they are arguing that the Commission had it right 20 years ago when it decided that marketplace competition would insure that broadcasters served the public interest.  This letter is a companion to the letter sent to the FCC the week before last by members of the House of Representatives, about which we wrote here.

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The Public and Broadcasting is a document first written by the FCC in the 1970s to tell the public about how the FCC regulates broadcast stations, and to tell the public how they can get involved in the regulatory process.  Broadcasters must maintain a copy of the manual in their public file, and make it available to members of the public who request it.  For years, the manual was grossly out of date, finally being updated a few years ago.  Today, the FCC issued a Public Notice announcing that they have once again updated The Public and Broadcasting, and that all stations need to place the new version in their public file.  The new version, with a new subtitle "How to Get the Most Service from Your Local Station" can be found here.  Stations should print that document, and place it in their public file.

The manual is updated, and sets out most of the programming and other operational rules that would be of interest to the public.  The manual seems to be objective - pointing out that most programming decisions are left to the broadcast licensee to avoid violating the Freedom of Speech rights of the broadcaster. 

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As part of its efforts to diversify the ownership of the broadcast media, the FCC promised in its recent order on Localism in the media (see our summary here) to have its engineering staff come up with a computer program to help people determine where a new FM station can be allotted by the FCC, opening the process that will result in an auction to determine who gets a construction permit to build that station.  Today, the Commission's staff released a public notice announcing that this new program is now on-line, and that interested people can see where a new FM station will "fit" consistent with all FCC rules that require that certain spacings be maintained between stations on the same or adjacent channels to avoid interference.  The program for determining whether new allotments can be made is available here.  All you need to do is provide geographic coordinates for a potential station, and the Commission's new program will tell you if a new FM station could work there.

As the Commission notes in its Public Notice, the tool will only locate Class A FM stations - the lowest power station - limited to 6 kw of effective radiated power at 100 meters tower height - giving a station a protected coverage radius of approximately 15 miles (though actual coverage may differ depending on factors including terrain and the proximity of other stations).  Also note that simply finding an empty channel does not get you a station.  Instead, a party who finds a channel in an area that they would like to serve must then petition the FCC to "allot" the channel to a specific community that they want to serve.  That proposal is processed by the FCC's staff and, if acceptable, placed on public notice when other parties can comment on the proposal or file counterproposals suggesting the use of the frequency at some other location.  Once the Commission reviews any comments, they will decide whether to allot the channel.  If and when an allotment is made, it still isn't ready for application.  Instead, the FCC saves new allotments and periodically puts out lists of these new allotments available for application - a "window" notice as a precursor to a possible auction.  Interested parties can then file with the FCC indicating interest in the channel and, if more than one person expresses interest in the channel (which virtually always happens), the channel will be auctioned to the highest bidder (though new entrants do get some bidding credits).  All told, the process can take several years from the discovery of the available channel to the award of the construction permit.  But, while the process may not be fast, this new tool provided by the Commission has made it somewhat easier.

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The Senate Commerce Committee held a hearing this week on the Future of the Internet, dealing principally with the issue of net neutrality - whether Internet Service Providers treat all content carried through their facilities equally.  This issue principally involves questions of whether ISPs can charge big bandwidth users for their content to be transmitted through the ISPs facilities, or to be transmitted at preferred speeds.  The testimony of Chairman Martin at the hearing raised several issues - issues both about what he said and what some reports perceived him to say.  Some reports had him saying that the FCC did not need to regulate indecency on the Internet - though I never heard that question asked. But he did say that he did not have trouble with ISPs blocking illegal content such as child pornography and illegal file-sharing, which raises the question of whether some might look to ISPs to become copyright police - blocking access to material that does not have copyright clearances.  And, with the hearing being held on the same day as a media company purchased a company that can identify copyrighted material by reviewing that content when transmitted on the Internet - is that possibility coming closer to being a reality?

In recent weeks, there have been several trade press reports about government regulation of indecency on the Internet.  I've seen at least two trade press reports on Chairman Martin's testimony before the Commerce Committee, claiming that he said that no government regulation of indecency on the Internet was necessary.  I did not hear any reference to indecency regulation in his testimony (a written version of his statement is available here, and you can watch the entire testimony, here).  Instead, that testimony was about whether Congress needed to pass laws to allow the Commission to enforce its net neutrality principles.  Nonetheless, the press seems to believe that Internet indecency is an issue which might be targeted by regulation.  A recent study finding that the majority of Americans think that FCC regulation of indecency should be extended to the Internet has also been cited in several reports.  However, despite the seeming interest in regulation of the Internet, there are serious constitutional concerns about any such regulation.  In fact, as we wrote here, numerous attempts to regulate indecency on the Internet have been overturned by the Courts on constitutional grounds, as the government could make no showing that the regulations were the least restrictive means for restricting access to adult content.

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The FCC has scheduled a Summit on the Emergency Alert System ("EAS"), to be held on May 19.  The EAS system is the alert system used by broadcasters to pass on emergency information from government officials to their listeners.  EAS replaced the Emergency Broadcast System ("EBS") and was intended to be a more reliable substitute for the system originally adopted during the Cold War to convey a Presidential message about a nuclear attack or similar emergency to the entire country.  Over the years, the system has adapted to include information about local emergencies and "amber alerts" about the kidnapping or disappearance of children.  However, especially since 9-11 and some of the hurricanes in the South, questions have been raised about the effectiveness of the system, and means to make the distribution of emergency information more reliable and efficient have been sought.  The FCC currently has a rulemaking pending to determine ways in which that system can be made more efficient - a question sure to be addressed at the Summit.

In the current proceeding on reforming the EAS system, one of the questions that has been asked is how the system should be activated for non-Federal emergencies.  Obviously, the President can still activate the system for a national emergency, but how alerts about local emergencies are initiated is one of the more controversial issues in the proceeding.  Currently, there is no uniform system.  Instead, each state's system may have different points from which an alert can be initiated.  Concerns have been raised that if the ability to initiate an alert is too broadly distributed, alerts may be initiated haphazardly, and if too many alerts are issued, the system will lose its impact and other important programming may be preempted unnecessarily.  Thus, proposals have been made that the alerts should be initiated only by a state's Governor or his or her specifically designated representative. 

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The deadline for submitting comments in the Commission's Localism rule making proceeding is fast approaching.  Comments are due by April 28th, and can be filed electronically through the FCC's Electronic Comment Filing System.  This proceeding contains a number of significant proposals and could possibly re-institute regulations that were lifted from the broadcast industry decades ago.  Formal ascertainment through community advisory boards and possibly other means, requirements for manning main studios during all hours of operation of broadcast stations, imposing quantitative programming requirements, and requiring that main studios be maintained within a station's community of license are just a few of the many proposals the FCC is considering.  See our more detailed summary here.  This proceeding seeks input on these and other potentially burdensome requirements, many of which were eliminated by the Commission long ago, and some of which go beyond what the FCC has ever required before.   Given the potential impact this proceeding could have on broadcast stations, broadcasters are encouraged to file comments in this important rule making proceeding.   When submitting comments, commenters should be sure to reference the docket number for this rule making, MB Docket No. 04-233.

Some members of Congress have already chimed in in this proceeding and submitted comments opposing the Commission's localism proposals.  Over 120 members of Congress signed on to a letter addressed to Chairman Martin urging the Commission to avoid imposing additional regulations on broadcasters and to carefully consider the cost and effect that such regulation would have on the industry.  A copy of the letter is available here.  A summary of the letter posted on Rep. Marsha Blackburn's web site characterizes the localism proceeding as an attempt to "restore a 1970s era regulatory regime for local broadcasters." 

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The FCC Form 355 requiring "enhanced disclosure" by television stations was a frequent topic of discussion at this week's NAB Convention in Las Vegas.  That form will require that television broadcasters report significant, detailed information about their programming, providing very detailed reports of the percentage of programming that they devote to news, public affairs, election programming, local programming, PSAs, independently produced programs and various other program categories, as well as specifics of each program that fits into these categories (see our detailed description of the requirements here).  Obviously, all broadcasters were concerned about how they would deal with the expense and time necessary to complete the forms, and the potential for complaints about the programming that such reports will generate.  At legal sessions by the American Bar Association Forum on Communications Law and the Federal Communications Bar Association, held in connection with the NAB Convention, it became very clear to me that the obligations imposed by these new rules are obligations adopted for absolutely no reason, as the Commission has not adopted any rules mandating specific amounts of the types of programming reported on the form.  In fact, one of the Commissioner's legal assistants confirmed that, unless and until the FCC adopts such specific programming requirements, the Commission's staff will not need to spend any time processing these forms.  Thus, if the form goes into effect, broadcasters will be forced to keep these records, and expend significant amounts of staff time and station resources necessary to complete the forms, for essentially no purpose.

Of course, public interest advocates will argue that the forms will allow the Commission to assess the station's operation in the public interest, and will allow the public to complain about failures of stations to serve local needs.  But, as in a recent license renewal case we wrote about here, the Commission rejected a Petition to Deny against a station based on its alleged failure to do much local public affairs programming as, without specific quantitative program requirements, the Commission cannot punish a station for not doing specific amounts of particular programming. If the Commission adheres to this precedent, it will not be able to fine stations for the information that they put on the Form 355, but only for not filing it or not completing it accurately.  Thus, unless the Commission adopts specific programming requirements, the form will be nothing more than a paperwork trap for the unwary or overburdened broadcaster.  And, as is usually the case with such obligations, the burden will fall hardest on the small broadcaster who does not the staff and resources to devote to otherwise unnecessary paperwork.

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Just over a week ago, the FCC decided to freeze the dismissal of FM translator applications of applicants who had more than 10 applications still pending at the FCC.  As we have written, the FCC had ordered all applicants in the 2003 FM Translator filing window to dismiss all but 10 of their remaining applications.  The Commission took this action in response to the request of advocates of Low Power FM (LPFM) stations, who argued that the numerous pending translators blocked too many opportunities for new LPFM stations.  While translator applicants opposed the Commission's action, and filed Petitions for Reconsideration of that decision and a request for stay of the deadline for selecting the applications for dismissal, the deadline for selection of the applications to be dismissed came and went.  Only after that deadline did the Commission issue a Public Notice announcing that it would not process the dismissal requests until it resolved the pending Reconsideration petitions. 

While the dismissals of applications by parties with more than 10 applications have been frozen, the processing of applications filed by other applicants will be allowed to go forward. So, presumably, unless these applications are mutually exclusive with some of the frozen applications, we will see some new translator applications processed and granted, and perhaps even settlement windows opened in cases where there are mutually exclusive applications by parties with less than 10 applications pending.  For all other applicants, either applications by those with more than 10 pending applications or applications which are mutually exclusive with such applications, they will remain pending until the Reconsideration requests are resolved.  So we should, at long last, see at least some new FM translator applications processed and granted in the near future.

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Website operators who allow the posting of user-generated content on their sites enjoy broad immunity from legal liability.  This includes immunity from copyright violations if the site owner registers with the Copyright Office, does not encourage the copyright violations and takes down infringing content upon receiving notice from a copyright owner (see our post here for more information).  There is also broad immunity from liability for other legal violations that may occur within user-generated content.  In a recent case, involving the website Roommates.com, the US Court of Appeals determined that the immunity is broad, but not unlimited if the site is set up so as to elicit the improper conduct.  A memo from attorneys in various Davis Wright Tremaine offices, which can be found here, provides details of the Roommates.com case and its implications.

In the case, suit was filed against the company, alleging violations of the Fair Housing Act, as the site had pull-down menus which allowed users to identify their sex, sexual orientation, and whether or not they had children.  Including any of this information in a housing advertisement can lead to liability under the law.  The Court found that, if this information had been volunteered by users acting on their own, the site owner would have no liability.  But because the site had the drop-down menus that prompted the answers that were prohibited under the law, liability was found.

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While US webcasters may think that they have legal issues - whether it be the Internet radio music royalties that have been such a concern (see our coverage, here) or the copyright and other liability issues that surround user-generated content on various websites (see our story here), they face nothing like new rules that were recently adopted for webcasters in China.  The new rules require government permits from two separate Chinese government agencies before webcasting operations can begin.  In addition, the rules appear to require ownership and control of webcasting operations by state-owned companies.  A memo on these new rules, prepared by attorneys from Davis Wright Tremaine's Shanghai office, can be found here.

These rules apply to streaming audio and video delivered to mobile and wireless devices.  The rules also require yet another permit for sites that contain news content, and require taping of programs (a proposal made by our own FCC in connection with broadcast programs to monitor for indecency) to monitor for program content that may offend government requirements.  Clearly, it's a different system than that in place in the US - one which website operators interested in an operation in China should study carefully.  Again, details can be found in the memo prepared by the attorneys in our Shanghai office.

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In a recent decision, the FCC interpreted its radio multiple ownership rules in a case involving changes in an Arbitron market.  The FCC's rules restrict the number of radio stations that one company can own in a market based on how many stations are in that radio market.  In situations where stations are rated in an Arbitron market, the number of stations is determined by how many stations are in that Arbitron market, as determined by data compiled by the financial analysis firm BIA.  In this case, while the application to acquire the station was pending, BIA came out with its first list of stations that it considered to be in the newly created Arbitron market.  That list showed that, in the new market, the Buyer already owned more stations than allowed by the rules, so acquisition of this additional station was prohibited.  The case stands for the proposition that, while changes in Arbitron markets that allow an acquisition to take place must have been in place for two years to become effective (to prevent owners from gaming the system by making short-term changes), changes that adversely affect the ability of an owner to acquire a station become effective immediately.

According to the decision, at the time that the application in question was filed, the station to be bought was listed by BIA as being in the Manchester, New Hampshire Arbitron market.  The number of stations owned by the Buyer in Manchester was such that the acquisition of the station was permissible at the time the application was filed.  However, Arbitron announced the creation of a new Concord radio market just before the filing of the FCC application for approval of the transfer of control of the radio station.  Soon after the filing of the application, BIA released its list of stations in the new Concord market, and it included a number of the stations owned by Buyer, including the station it was proposing to acquire.  In the new Concord market, the Buyer would have too many stations to permit the acquisition of this station under the restrictions set out in the multiple ownership rules.

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As we wrote last week, the FCC recently admonished two major broadcasters, each of which had a station group which had not complied with the FCC's EEO rules.  In both cases, the FCC would have issued fines instead of the admonishments had it not been for renewal applications that were granted between the time of the violations and the FCC's EEO audit that uncovered the issues.  This past week, the FCC issued another list of stations that will be audited to determine their EEO compliance.  The list of stations to be audited is here.  The FCC's Public Notice of the audits is here.  As stated in the Notice, the FCC will audit 5% of all broadcast stations and all multi-channel video providers each year.  So expect more EEO audits in upcoming months.  To be sure that you are prepared to meet the FCC's requirements for EEO compliance if your station is audited, see our EEO Compliance Guide, here.

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As we posted earlier, television stations must file an FCC Form 388 with the FCC reporting on their DTV educational efforts by April 10th.  That Form is now available on the FCC's web page here.  However, stations should be aware of the unusual filing procedure required for this form.  This form will not be filed through CDBS, but rather will be filed through the FCC's Electronic Comment Filing System (ECFS), which is used for submitting comments in notice and comment rule making proceedings.  The ECFS submission page is available here.   Thus, stations will need to prepare the FCC Form 388 using the  Word document available on the FCC's web site, and then electronically submit the completed Word document into Docket Number 07-148 using ECFS.  Although the new rules were only effective for one day of the First Quarter, stations should report any voluntary DTV educational efforts undertaken during the quarter. 

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Quarterly Issues Programs Lists Due April 10th -- This is a eminder to all radio and television stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of January, February, and March dealing with those issues must be prepared and placed in the stations' public inspection file by April 10, 2008. The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion. See our full advisory for further details.

Please note, the New Form 355 for television stations has not yet become effective, but when it does, television stations will be required to use this new form to report on their programming content in great detail.  Stations should prepare for the implementation of this form now. 

Children's Program Reports Due April 10th --  Commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by April 10, 2008. The Reports must also be placed in the stations' public inspection files by that date. Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398. Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by April 10th.

New Form 388 Report on DTV Educational Efforts Due April 10th -- Last, and definitely not least, by April 10th full power television stations must electronically file the newly minted Form 388 reporting on their efforts to inform viewers about the DTV transition.  Although the FCC's new rules mandating educational efforts by TV stations were only effective March 31st (the last day of the quarter), the FCC nevertheless is requiring that all stations file a report detailing their DTV education efforts during the First Quarter of 2008.  Thus, stations will largely be reporting on any voluntary educational efforts undertaken in the first quarter (PSAs, news programs, etc.), as well as electing which of the three Options that they intend to employ for their DTV educational efforts going forward.  More information is available in our recent advisory. 

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