October 2009

A jury in Sacramento returned a $16.57 million verdict against Entercom Broadcasting’s local subsidiary in the case involving the death of a contestant in a radio station-sponsored contest.  The contest – drinking water and waiting to see which contestant would win the Nintendo Wii by being the last to have to use the bathroom – led to the death of contestant Jennifer Strange by water intoxication.  The station had argued that water intoxication was not a readily known risk of the contest that could have reasonably been anticipated.  The plaintiff’s case, to refute this argument, included testimony of warnings from on-air station callers of the risks, and health complaints from contestants themselves, which were apparently ignored or minimized by the station employees who were involved in supervising the contest.  This Blog does not purport to address negligence and personal liability questions, which we will leave to others.  Instead, we’ll talk about the lesson to broadcasters and the FCC impact of this case.

First, the decision itself serves as a warning to broadcasters of the need to make employees aware of the ramifications of what goes on at a station.  In a Radio Ink Column today, Publisher Eric Rhoads suggests that broadcasters must be careful in what they do, but also submits that owners and managers cannot take the fun out of radio.  And while I wholeheartedly agree with the last sentiment, the fact that radio can be a fun business is all the more reason that owners and managers need to be careful about what goes on at a station.  While we hate to be the lawyers who ruin all the fun, management does need to make employees aware of the nature of the broadcast medium, and the fact that real people are impacted by whatever is done on the station – whether it be a "joke" on the air which some people find offensive, a dangerous contest, or simply putting off compliance with some FCC rule.  We are in a litigious time, and we have an FCC and a Congress with lots of pending matters that could determine the future of the industry.  While it may seem amazing, a single contest gone wrong or wardrobe malfunction can set the tone for the regulation of an entire industry.  So, while broadcast managers need to avoid being the heavies and playing it so safe that they take the fun out of broadcasting, they do need to impress on employees that they must be aware of the ramifications that their actions can have.  Broadcasting is still a powerful medium, and because of that fact, actions taken by broadcasters can have an impact that is magnified far beyond what might be the case in other media or other industries.  And because it is such a regulated industry, that impact can have huge consequences.Continue Reading $16.57 Million Verdict in Hold Your Wee for Wii Case – What are the FCC Implications and What Should Broadcasters Learn?

On Friday, the Commission formally began a rule making proceeding regarding children and electronic media.  Aware of the vast opportunities, but also the potential risks inherent in today’s (and tomorrow’s) electronic media, the Commission is seeking to gather information about the extent to which children are using media today, the benefits and risks of the various…

An article from TV NewsCheck last week reported on an approach by an FCC representative to television operators, floating an idea that the FCC would "buy" TV spectrum from existing television station operators, and repurpose that spectrum for wireless users – presumably some sort of wireless broadband.  The funds to buy the spectrum would come from the auction of the frequencies.  Over-the-air TV viewers would perhaps be left with a limited over-the-air service.  Today, another article cites a study filed at the Commission that suggests that the auction of TV spectrum could bring in more than three times the value of what that spectrum is for broadcasting.  Could these developments grow into a ground swell that could signal the end of over-the-air television?  Nicholas Negroponte made the much quoted observation almost 15 years ago, before the Internet was the multi-media service that it is today – that communications devices that were wired will become unwired, and those that were wireless would become wired – the "Negroponte Switch" or the process of "unwiring."  But is this switch inevitable for television, and is it in the industry’s best interest?

The theory of unwiring looked at the growing demands of wireless data networks for more and more bandwidth. While voice and data services were, at one time, wired services (the plain old telephone, the fax, even the telegraph), more and more of that information is now being digitally packaged and delivered wirelessly.  At the same time, video programming was delivered through wireless over-the-air television (though no one ever referred to it as "wireless"), but each year is more and more delivered by wired means (by cable companies and what used to be telephone companies).  At this point, estimates are that only a bit more than 10% of television households get their television programming exclusively from over-the-air reception.  Looking at this transition, some have theorized that the progression would continue, and the broadcast services would end up being delivered to fixed locations by wire, while the data services would be delivered wirelessly.Continue Reading Could Calls on the FCC for More Spectrum Lead to the End of Over The Air TV?

Last Friday we posted about the FCC’s announcement that it would open a filing window in December for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Today, the FCC revised the timing of that window and postponed the opening until February 2010.  Accordingly, rather than accepting applications for these vacant noncommercial…

The FCC has released the agenda for its Workshop on the multiple ownership rules (about which we wrote here).  The workshop will span three mornings (November 2-4), and will include live testimony from a different panel each morning.  The first panel will include the academic perspective on ownership rules, the second the view from "public interest organizations", and the third from industry representatives, though the participants on that panel are, at this point, the most unsettled.  The Commission also requests written comments from the public, which can be filed through November 20.  As we wrote when this topic first came up last month, these workshops are the first step in the FCC’s consideration of the multiple ownership rules – a review that it is required to conduct once every 4 years – with 2010 being the year in which such review is required. 

The Commission sets out a series of questions that it would like to have addressed.  These questions include:

  • The FCC is required by statute to consider the rules governing local radio ownership, local television ownership, radio-TV cross-ownership, broadcast-newspaper cross-ownership and the dual network rule.  The Commission asks if it should consider other rules in the context of this proceeding.
  • In assessing ownership rules, should the Commission treat each rule in isolation, or should it look at all media together and attempt to craft more general rules addressing media consolidation as a whole in relevant markets?
  • Should rules that are adopted be "bright line" rules, that limit entities to specific numbers of stations, or should the Commission make a case by case determination of whether a combination is in the public interest, subject to some general principles?
  • Should the Commission address the traditional concepts of competition, diversity and localism to this proceeding, or come up with new ways of looking at these concepts, or different concepts to assess ownership goals?
  •  How should the FCC analyze competition, localism and diversity in today’s marketplace?  What are the relevant markets for analysis?  What metrics should be used?
  • What studies or analysis should the FCC use to inform its decisions on these topics.

Continue Reading FCC Releases Agenda for First Workshop on Revisions to its Multiple Ownership Rules – Localism and Economic Competition Issues Included

Last Thursday, the possibility of more Low Power FM (LPFM) stations came a step closer, as a subcommittee of the House of Representatives Energy and Commerce Committee passed a bill (the text of which is here) which would remove existing Congressional restrictions on the FCC adopting rules to ignore potential interference from new LPFM stations to full power FMs operating on third-adjacent channels.  With this committee approval coming at the same time as the Senate Judiciary Committee’s approval of a bill that would authorize a sound recording performance royalty on radio broadcasters’ over-the-air programming, this was not a good day legislatively for traditional broadcasters.  But it certainly could have been worse, as the LPFM bill does contain new provisions that would serve to extend some protection to existing broadcasters from interference from new LPFM stations.  Perhaps because of these new protections, the committee action was unanimous.

 The new protections built into the bill include the following:

  • Protection for third-adjacent channel full-power FM stations providing reading services for the blind
  • Providing protection for FM translator input signals from interference from new LPFM stations
  • For a year after a new LPFM goes on the air, it must broadcast notices that any listener who experiences interference to another FM station or FM translator from this new LPFM should report that interference to the LPFM station.  In the event that interference is reported:
    • The LPFM must notify the FCC and the third-adjacent channel station that is getting interference
    • The LPFM station must address the interference that arises
    • The FCC is charged with looking for ways to assist the LPFM in remediating interference, including allowing co-location of the LPFM at the same tower site as the FM station or FM translator to which interference is being caused
    • The FCC will investigate allegations of interference from an FM broadcaster or FM translator, no matter how far that interference is from the station, and even if the interference is to mobile reception

The bill does not say, however, what happens if the interference is not remediated.  Under current FCC rules for the FM translator service, a new translator must sign off if interference to existing stations cannot be resolved.  The bill does not specify that remedy for LPFM.  This issue remains to be resolved if the bill eventually passes Congress.Continue Reading House Committee Passes Bill to Allow for More LPFM Stations – With Some Protections for Existing Broadcasters

On Friday the Commission released a further Order confirming certain recent changes to its ownership reporting requirements for commercial broadcast stations and soliciting additional input on the reporting of certain non-attributable interest holders.  Earlier this year, the Commission revised its rules regarding the reporting of ownership interests by commercial broadcasters.  The FCC also recast its FCC…

The FCC today announced the opening of a filing window for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Applications on FCC Form 340 will be accepted from December 11th through December 18th for these vacant FM allotments in the non-reserved band between Channels 221 and 300.  A full listing of the allotments that…