September 2008

Today’s announcement from John McCain that he is suspending his Presidential campaign to work on issues dealing with the economic bailout, and that he will not participate in Friday’s scheduled Presidential debate if the bailout package has not been enacted, raises an interesting question about the application of the FCC’s equal opportunities rules.  If Barack Obama were to appear at the debate and answer questions, and that appearance was televised, would the stations that carried the debates later be subject to a claim for equal opportunities by the McCain campaign?  Under FCC precedent, the answer would be "yes."  Debates are exempt from equal opportunities because they constitute on-the-spot coverage of a bona fide news event – one of the exemptions from equal opportunities specified in the Communications Act.  However, as we’ve written before, debates were not always considered exempt and, at one time, if all candidates (including all minor party candidates) were not included in the debate, any excluded candidate could demand equal time.  Thus, debates rarely occurred.  In the 1970s, the FCC loosened the rules to permit debates to be covered as news events, even if minor party candidates were excluded, without triggering equal opportunities obligations – if there were reasonable, objective criteria used to determine which candidates could participate.  However, in doing so, the FCC concluded that, if only one candidate showed up for a debate, it was not a true debate, and thus not exempt from the equal opportunities doctrine.

What would this mean if a station was to cover a debate where Obama showed and McCain did not?  If the McCain campaign were to timely request equal opportunities, stations would have to provide to McCain time equal to the amount of time that Obama appeared on screen, and McCain could do anything with that time that he wanted – he would not have to answer questions from the debate moderator.  Thus, traditionally, if only one candidate shows up for a scheduled debate that is supposed to be broadcast, the debate (or at least the broadcast) is canceled.Continue Reading If John McCain Doesn’t Show Up, Would Equal Opportunites Issues Prevent the Debate from Going On?

Tomorrow’s FCC meeting was to consider the proposal to allow AM stations to use FM translators on a permanent basis (see our post here).  However, it is not going to happen – the FCC released a Public Notice today removing that item from the agenda for tomorrow’s meeting.  While a number of other items…

Today, the National Music Publishers Association ("NMPA"), DiMA, the RIAA and other music publishing groups issued a press release announcing a settlement of certain aspects of the current Copyright Royalty Board proceeding to determine the royalties due under Section 115 of the Copyright Act for the mechanical royalty for the reproduction and distribution…

On August 26, David Oxenford of Davis Wright Tremaine’s Washington DC office made a presentation to the Christian Music Broadcasters Board of Directors and Managers Meeting in Nashville.  David talked about many issues of importance to broadcasters, including the FCC’s localism proceeding, issues about the relationship between translators and LPFM stations, the FCC…

 As the digital television transition continues to progress, the FCC has been pursuing not only broadcasters who have been slow in building out their digital facilities, but also consumer electronic manufacturers who have not done enough to facilitate the transition. In a letter released this week, Chairman Martin has by letter urged consumer electronics retailers to stock inexpensive converter boxes that will pick up digital signals and allow analog television sets to broadcast those signals, keeping those sets from becoming obsolete. Also, the FCC recently entered into a consent decree agreeing to a fine for Sling Media for not including a digital television tuner in some of its equipment, reminding all consumer electronics manufacturers, including those who install them as an adjunct to their technology, of the need to include such tuners in their equipment.

The issue of the digital converter boxes is an interesting one. When NTIA started issuing coupons to consumers to subsidize their transition to digital, it was hoped that the $40 coupons that consumers would receive would come close to covering the entire cost of the converter box necessary to keep an analog set operational. In fact, in most cases, the boxes have cost more than $40, requiring the consumer to pay at least some of the cost of the box. What has been particularly frustrating has been the announcement that Echostar, the satellite television provider of the Dish Network, had manufactured a highly rated box that would be available at $40, and would also include the ability to “pass through” analog signals – to continue to receive analog as well as digital signals – a particularly important property in markets where there are LPTV or TV translator stations that will continue to operate in analog after the February 17, 2009 deadline for the digital conversion of full-power television stations (see our post here on that issue). However, as the Chairman’s letter makes clear, that box and boxes like it are not available in most consumer electronics stores. Thus, the Commission has urged retailers to stock such devices in these final months before the digital cut-off so that no one is left behind. Continue Reading FCC Tackles Equipment Manufacturers for Not Including DTV Tuners in Their Devices

Failing to meet the obligations set out under the law for required sponsorship identification on Federal political ads could, theoretically, cost candidates significant amounts of money – if stations decide to hold the candidates to the letter of the law. Under the terms of the Bipartisan Campaign Reform Act (“BCRA”), Federal candidates airing television commercials that refer to a competing candidate must specifically state, in the candidate’s own voice, that he or she has approved the ad, while a full-screen image of the candidate appears on the screen. In addition, the name of the sponsoring candidate’s campaign committee must appear in text on the screen for at least 4 seconds at 4 percent of screen height, with sufficient color contrast to make the text readable. If the proper identification is not contained in an ad, the candidates forfeit their right to lowest unit rates for the entire pre-election period (45 days before a primary or 60 days before an election), even with respect to future ads that comply with the rules. In recent days, representatives of Democratic Congressional candidates have reportedly filed complaints that argue that Republican competitors have not complied with the rules in several cases, as their written disclosures did not air for the full four seconds. The challengers argue that television stations must take away LUR for these candidates. While the statute say that the candidates forfeit their rights to such rates, the law is unclear as to whether stations are obligated to deny that rate to candidates after the right has been forfeited – and these cases could resolve this issue.

Television stations undeniably have the power to charge full rates to candidates whose ads have not complied with the requirements of the campaign statute. However, many stations have been reluctant to do so for minor infractions such as the ones identified in this complaint. Why wouldn’t television stations want to charge more money? For several reasons. First, denying one candidate lowest unit rates will no doubt trigger a fly-specking of every commercial by the competitor who filed the complaint against the first candidate, to try to trigger a forfeiture of the second candidate’s right to Lowest Unit Rates, and adjudicating such complaints will no doubt make the station’s political sales process much more difficult and costly to administer. In addition, there is the question of whether, for a minor violation, a station really wants to give the other candidate a political advantage – especially if the candidate who gets charged more more wins the election and gets to vote on laws that may effect business in the future. But can stations legally continue to charge the lowest unit rate even when a candidate has not complied with the legal requirements for sponsorship identification?Continue Reading What Happens if a Federal Candidate’s Commercial Does Not Have Proper Sponsorship Disclosure?

Broadcasting and Cable magazine today reported that the FCC is looking to back off some of the requirements for the "enhanced disclosure" of television broadcaster’s public interest programming (see our summary of the new requirements of FCC Form 355, here).  B&C reports that the FCC may lessen or at least better explain…

It’s been a week since Wilmington, North Carolina became the first television market in the country to have virtually all of its television stations convert to digital – ceasing their analog operations.  The FCC, NAB and local stations all concentrated great resources in Wilmington in order to ensure that the transition was smooth and, while most observers believe that disruption was minimal, there are some who remain concerned about the results of the Wilmington experiment, and whether it can be replicated in other television markets.  While the FCC ramps up its efforts to promote the digital television transition around the country, one Commissioner has suggested several other steps that should be taken (including leaving an analog lifeline for those people who don’t get the message), and Congress is set to weigh in on the issues over the next two weeks.  All in all, the push is on for the February 17, 2009 transition to digital.

One of the most thought provoking commentaries on the transition comes from Harry Jessell, editor of TV Newsday.  In a commentary published last Friday, Jessell computes that the complaints in Wilmington amounted to about 5% of the television households in that market.  If that pattern was to be repeated in all markets around the country, Jessell computes that there would be about 1.7 million homes that will miss the transition and be without TV service on February 18.  Jessell further figures that this is a best case number, as all of the publicity showered on Wilmington will not be available in the remainder of the country, and there will likely be more technical problems in other markets with more irregular terrain than Wilmington (which is mostly flat coastal plain) and where TV towers are in different locations.  Jessell suggests several steps – including staggered cut-off dates to avoid overloading national DTV hotlines, more education on antenna issues (one of the major issues in Wilmington), and more "soft-tests" (stations ceasing analog operations for limited periods to see if their viewers are ready for the transition). It is a commentary worth reading.Continue Reading Digital Television Conversion is a Reality in Wilmington NC – Publicity Ramps Up Around the Country While Issues of Readiness are Raised