June 2010

As we anticipated, the FCC has suspended indefinitely the opportunity to apply for new, digital low power television (LPTV) stations in non-rural areas, which had been slated to begin on July 26, 2010.  Given the FCC’s new focus on repacking and reallocating the television spectrum for use by broadband competitors, the Commission’s postponement of the…

The long-delayed revised Biennial ownership reports (about which we last wrote here) for commercial broadcast stations, on the new Form 323, are due on July 8, and the FCC is in the process of clarifying what it needs.  The Commission just released a Public Notice reminding broadcasters that the report is supposed to be detailing station ownership as of November 1, 2009 (when the reports were originally supposed to be filed).  Yet, in the 8 months since that date, many stations have changed ownership.  Is a new owner supposed to get the old owner to complete the form?  What if the old owner is off somewhere on a cruise, or simply wants nothing more to do with the station?  The FCC’s Public Notice clarifies (to some extent) what to do in that case – indicating that stations in that situation can file a waiver request, detailing why they can’t provide the ownership information for the owners who held the station license on November 1, 2009, and asking that the FCC waive its rules and excuse the filing of a report for this particular station.  This obligation to file the waiver request is on the current owner.  Note that the FCC does not say that it will grant all such waiver requests, and it specifically excludes from these waiver situations "pro forma" assignments or transfers, i.e. ones where the actual control has not changed but the legal entity holding that control has changed such as in a corporate reorganization where a station license is moved from a parent company to a subsidiary, or from a corporation to an LLC which is controlled by the same individual. 

Another looming issue may also create issues for the July 8 filings.  A group of state broadcast associations and broadcast owners has asked the US Court of Appeals to once again put the filing obligation on hold until the FCC justifies the information that is being collected.  Last week, the Court asked the Commission to justify its requirement that each person with an attributable interest in a station (i.e. anyone who would have to be reported on the Form 323) obtain an FRN (a unique identifier) which can only be obtained by furnishing  a Social Security Number.  While this may indicate that the Court is concerned about forcing every investor and officer and director of a broadcast company to provide this information, even if the Court forbids the collection of that information, it is possible that the FCC would move forward anyway with the Form 323 filing obligation – just removing the FRN from the required filing.  So don’t count on the July 8 deadline being pushed back – start preparing now to be on file by the deadline.Continue Reading July 8 Filing Deadline for Commercial Broadcast Stations Form 323 Ownership Report – Clarifications Issued

The FCC issued a reminder to all video program distributors – including TV stations, cable systems and satellite television providers –  that emergency information must be made accessible to those with hearing or vision disabilities.  For those with hearing difficulty, the Commission reminded providers that they must make information available visually as well as aurally – either through closed captioning or some other method that the aurally impaired can understand the nature of the emergency. For the visually impaired, if the emergency information is provided in a crawl or through some other non-verbal manner, there need to be alert tones broadcast identifying that emergency information is being conveyed so that visually impaired viewers can make arrangements to find out what the emergency is.  With hurricane season upon us, the Commission wanted to remind video service providers of these obligations.

The Commission also reminded service providers and viewers of the new complaint process, about which we wrote here, that sets up a process for viewers who believe that there has not been proper captioning information provided.  This reminder alone should alert broadcasters and other video program providers of the seriousness with which the FCC views these rules.Continue Reading FCC Reminder About Making Emergency Information Accessible to People With Hearing or Vision Disabilities

In an email blast that went out this morning, the musicFIRST Coalition, the group organized to pursue a performance royalty on radio broadcasters for the use of music in their over-the-air broadcasts, announced that they would be holding a rally and concert with a member of the 1960s rock band the Monkees, musically backed by three Congressmen. …

In a recent speech before the Community Radio Conference, FCC Commissioner Mignon Clyburn suggested that the proposal to reallocate Channels 5 and 6 for FM radio use had merit and should be considered further.  That proposal is already before the FCC, and ripe for decision – so it could theoretically be adopted tomorrow.  However, the proposal is not backed by all.  While Commissioner Clyburn may think that the idea bears more exploration, there seems to be significantly more consideration that is necessary before a decision on the pending proposals can be made.  What are these proposals, and what is standing in the way of a reallocation? 

As we have written before, the proposals have been made to take TV Channels 5 and 6, which are immediately adjacent to the FM band, and reallocate them to radio broadcasting.  The pending proposals include suggestions that LPFM stations could be located on the new FM channels that could be created, that new space for noncommercial radio operations could be created and, if they operated digitally, there would even be room to move the entire AM band to Channel 5.  While some have suggested that any relief from such a transition would be long in coming, as radios would need to be manufactured, in fact that process might not be as prolonged as suggested, as the frequencies used by these television channels are already used for FM radio in Asia.  Radios already exist that could pick up these channels (at least for analog reception).  However, television interests have opposed this reallotment, but it may well be the broadband plan which could have the greatest impact on the consideration of this issue. Continue Reading Commissioner Clyburn Suggests TV Channels 5 and 6 Could Be Used For Radio – Will It Happen?

Davis Wright Tremaine attorneys David Oxenford and Rob Driscoll conducted a seminar –  Using Music in Digital Media: Business and Legal Issues – on June 16, 2010 in New York City.  The seminar was presented to attorneys from committees of the New York State and New York City bar associations.  In the seminar, Dave and…

Stations that are licensed as "noncommercial educational" stations are prohibited by the FCC from running commercials – seemingly a pretty straightforward prohibition.  Yet drawing the line between a prohibited commercial and a permissible sponsorship acknowledgment is sometimes difficult in these days of "enhanced underwriting."   In a recent case, the FCC fined a noncommercial radio station $12,500 for repeatedly airing 4 announcements from sponsors that the Commission found to have crossed the line by being overly promotional.  These announcements, which appear to have been recordings of unscripted sponsor acknowledgments, demonstrate how carefully noncommercial stations must police their sponsorship announcements to avoid risking an FCC sanction.

The announcements in these cases are worth reviewing. Some have subtle promotional messages, while the areas of concern are more clear in others.  But in reaching its decision, the Commission goes through a close analysis of the wording of each announcement to see if the announcement contains "comparative or qualitative descriptions, price information, calls to action, or inducements to buy, sell, rent or lease", all prohibited language in a noncommercial sponsorship identification.  So, when one of the announcement referred to "beautiful Harley Davidson light trucks" sold by a local auto dealer who sponsored the station, the FCC found that this was a qualitative claim that went over the line.  Similarly, statements that "we have it here" or "where we are proud to be Mexicans" (these announcements having been run on a Spanish-language station in California) were found to be attempts to qualitatively distinguish this dealer from others, or to be inducements to buy – a prohibited call to action.  And a specific statement that "no downpayment" would be required on a purchase constituted the kind of price information that should not be contained in a sponsorship acknowledgment.  Another announcement for a local tire store had similar problems in the content of the ads, using phrases such as stating that the company "knows about tires" and that the company’s product "reduces [the] loss [of tire] pressure" and "has less risk of suffering damages . . . last longer and [is] not too expensive cause you to save more . . . [and] save more in gas per mileage."Continue Reading Noncommercial FM Station Fined $12,500 for Sponsorship Acknowledgments That Were Too Commercial

The FCC’s Notice of Inquiry (NOI) on Multiple Ownership has been published in the Federal Register, setting July 12, 2010 as the deadline for comments, with July 26 as the deadline for reply filings.   We previously outlined many of the questions asked in the wide-ranging Notice of Inquiry. The questions deal with the entire spectrum of media ownership issues, from asking questions about how the new media landscape changes the considerations given to media ownership restrictions, to inquiries into the way in which the consumer gets needed news and information programming from broadcast outlets, and the impact of consolidation on that information.  Filing comments in this proceeding before the deadline will help to shape the discussion that will occur. The FCC claims to be intent on finishing its review of the ownership during this calender year but, as the comments in this proceeding must be distilled into more specific proposals to be reflected in a subsequent  Notice of Proposed Rulemaking, which must itself be subject to public comment, this would seem a very ambitious task given that there will be less than 6 months remaining after the comments are replies on the NOI are submitted. Nevertheless, the short 30 day comment period on the NOI seems designed to speed review – so time is short for interested parties to draft and submit meaningful comments on the fundamental and wide-ranging questions that are being asked..

Further highlighting the difficulty in completing the ownership review this year, is the FCC’s Public Notice that was just released – announcing that it is seeking bids for nine different studies to review various issues relevant to the media ownership proceeding. According to the Public Notice, studies will look at many of the issues on which the Commission has sought comment in the NOI, including studies of how consumers receive local news and information, the effect that media consolidation affects the diversity of programming and the degree of civic engagement in a community, and even requesting a study to design a model to be used to measure the degree of media consolidation in a market.  the Commission also asked for suggestions as to other studies that it could conduct relevant to this proceeding.  Comments on other potential areas of study are due by July 7.Continue Reading Comments Due July 12 on Multiple Ownership Notice of Inquiry – And FCC Solicits Bids for Proposed Media Ownership Studies

In the last few weeks, I’ve been asked several times by broadcasters whether an ad should be considered an "issue ad."   Usually, the ad in question deals with some sort of faintly controversial issue, and the broadcaster seems torn about how to classify the ad.   In many ways, the answer is almost irrelevant as, other than some public file obligations, whether or not an ad is an issue ad has little practical significance.  Issue ads are not entitled to special rates – lowest unit rates are reserved for candidate ads.  They are not entitled to special placement in broadcast schedules.  As there is no Fairness Doctrine, there isn’t even a requirement that you treat both sides of an issue in the same fashion (except perhaps, where a Fairness obligation may still arise if the issue being discussed is a candidate in an election, when the last remnant of Fairness, the Zapple Doctrine, has not officially been declared dead).  So why worry about whether or not something is an issue ad?

The principal reason is the public file. Commission rules require that the sponsor of an issue ad be identified in a broadcaster’s public file, along with the sponsor’s principal officers or directors.  This is required for any ad dealing with a controversial issue of public importance.  The ad does not need to deal with a political issue, or one to be considered by a government body.  Any controversial issue of public importance merits the public file treatment.  For ads dealing with a "federal issue", one to be considered by the US Congress, any Federal administrative agency or any other branch of the United States government, additional disclosures need to be made in the file (which we have listed before), setting out all the information that you would need to provide with respect to a candidate ad – including the price paid for the ad and the schedule on which the ad will run. Continue Reading So Just What is an “Issue Ad” and Why Should I Care?