February 2012

The FCC has released 16 Show Cause Orders threatening to deprive a number of low power television (LPTV) stations of their Class A status for failure to file Children’s Television Programming Reports.  These orders appear to be implementing a long-rumored get-tough policy on Class A TV stations, as the FCC prepares to clear portions of the TV spectrum to auction it for use by wireless broadband providers, in accordance with the authorizing legislation we wrote about last week. Class A stations are protected from interference like full power TV stations, while other LPTV licensees can be displaced from their current channels by new primary users – potentially including future wireless broadband auction winners. Therefore, if these Class A stations are downgraded to LPTV status, the FCC could displace them as needed for spectrum auctions.  If they retain their Class A status, they are protected like full-power TV stations, and the FCC must attempt to replicate their coverage in any repacking of the spectrum that may occur.

These 16 Show Cause Orders all have essentially the same set of facts as this one.  Specifically, all of the stations failed to file multiple Children’s Television Programming Reports and failed to respond to FCC letters cautioning the stations that failure to file these reports could result in loss of Class A status.  As the FCC notes in all of the Show Cause Orders, Class A licensees are required to comply with many full power TV requirements, including the need to maintain a main studio and a public inspection file, to comply with children’s programming requirements, political programming requirements, station identification requirements and Emergency Alert System rules. Failure to comply with any of these requirements could result in loss of Class A status.Continue Reading Failure to File Children’s Programming Reports Could Cause Loss of Class A Status for LPTV Stations

Political speech has been called the "life-breath of democracy" by the US Supreme Court and receives very strong First Amendment protection.  For that reason, the FCC has said that it will "not attempt to judge the truth or falsity of material broadcast regarding candidates or ballot issues."  That principle is sure to be tested in the wave of negative campaign ads we are likely to see between now and November, many of which will generate "cease and desist" letters from the subjects of those negative ads. Of course, broadcasters and cable operators alike are immune from liability for anything said in the context of a candidate "use" featuring a sponsoring candidate’s recognizable voice or image…the so-called "no censorship" rule.

There is, however, one type of political ad that could create potential liability for the media if allowed to run unchecked:  A third party or PAC attack ad that is defamatory. A defamatory ad is one that exposes the candidate to public hatred, shame, disgrace or ridicule.  Generally, these are ads that allege crime, fraud, dishonest or immoral conduct on the part of the candidate.  Truth is the only absolute defense to a defamatory claim.  Therefore, when defamation is alleged, substantiation should be requested.  Read on for details of a recent case study….Continue Reading Political Ad Content—When Do You Need to Worry?

When building a new radio station, the FCC gives broadcasters three years in which to construct.  The deadline for construction can only be extended for limited reasons (referred to as circumstances that justify "tolling" of the permit) – for a short term equal to the period that an Act of God (e.g. a hurricane, blizzard or flood…

Congress finally has given to the FCC authority to conduct spectrum auctions to reclaim parts of the TV spectrum for wireless users, and most DC-based industry associations, including the NAB, have reacted favorably. For a process that was so controversial, this seems like a very favorable result. Television stations, in particular, will have much relief from concerns about the forced-reallocation of their operations to less favorable spectrum. While most trade press reports have reported on these statements and the very general outlines of the legislation, few have looked closely at the provisions that apply to the broadcaster auctions. Just what do they provide?

The auction provisions were adopted as part of the legislation that just extended the Social Security payroll tax deduction rollbacks, extended unemployment benefits, and fixed certain limitations that had arisen on Medicare reimbursements to doctors. All these benefits needed offsetting revenues to avoid unduly increasing the Federal deficit, and the one seemingly easy place to “find” money, was through spectrum auctions. So Congress ordered the President to identify certain Federal spectrum that could be made available for wireless users, and also authorized the FCC to conduct auctions of broadcast spectrum, but under the very specific guidelines set out below.Continue Reading Congress Authorizes FCC Incentive Auctions to Clear Part of Broadcast TV Spectrum for Wireless Broadband Users – The Details of the Legislation

Another EEO audit was announced by the FCC today – hitting about 200 radio stations and about 75 TV stations this time around. The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and supplemental efforts…

The FCC’s main studio rules require that broadcast stations have a main studio open during normal business hours.  And, when the studio is open, it obviously needs to be manned so that someone is there to meet any visitors who my show up.  And, sometimes, those visitors are from the FCC.  When the FCC shows up, one would think that station employees would go out of their way to greet the inspectors and provide them what they want.  But in two cases decided this week, that simply didn’t seem to be the case, resulting in two notices of apparent liability proposing $10,000 fines.

One case involved a cable system (which also has a public file obligation and a duty to make the file available during normal business hours), whose employees allegedly asked FCC inspectors to return the next day when a supervisory employee would be present.  In a broadcast case, the FCC inspectors found an apparently unmanned building at what was supposed to be the station’s studio site and, when a woman arrived who was apparently the wife of the owner, rather than letting the inspectors in to the building, she told them they would have to call her husband – who did not answer his phone.  In responding to an FCC letter about the inspection that suggested that there was a violation, the licensee said that the inspectors erred by not ringing the door bell, and that employees come and go as they are needed, but are usually there during the day.  After getting that response, the FCC inspectors returned to the station to conduct another inspection, and found no doorbell, and an office that was again empty.  Obviously, these are preliminary findings of liability, and the facts and law, upon further examination, may prove to be different than what the FCC set out.  But broadcasters should take note of the FCC’s actions. Continue Reading When the FCC Comes Knocking, Answer the Door! – $10,000 Fines for Unattended Main Studios

An FCC letter to the licensee of an FM translator owner asking very specific information about a series of applications to move that translator to a larger market raises question as to whether the FCC is shutting the door on moves of translators from one market to another – where they have often been used to rebroadcast the signal of an AM or an FM HD signal, adding new competition.  While this letter does not explicitly say that multi-hop moves of translators are impermissible under FCC rules, the fact that an investigatory letter from the FCC to one applicant is published in the FCC’s general releases indicates that a message is being sent by the Commission.  And the letter questions whether the large move accomplished by a series of small hops is an abuse of the FCC’s processes.  The letter asks for the details of each move in the series – where the station was built, who gave permission to use the transmitter sites that were used, how long the station operated at each location, what primary station’s signal did the translator rebroadcast at each site, and what the applicant’s ultimate purpose in the moves was.  

We’ve written about the FCC’s apparent crackdown on FM translator moves – first by simply slowing the processing of such applications, then entering into a consent decree with a monetary penalty and the forfeiture of a translator license by a translator licensee who apparently did not have reasonable assurance of every transmitter site in a multi-hop move, then suggesting that such moves were an abuse of process (while, at the same time, making more limited moves easier).  Now  it seems to be actually taking steps to enforce the thinking that, where there is an intent to accomplish a "major change by multiple minor change applications", there is an abuse of process.  Thus, the FCC seems to be drawing the noose tighter around the ability to move these stations large distances.

The FCC, when it authorized the use of FM translators for AM stations  did so with the caveat that only translators that had been granted as of the date of its 2009 order would be allowed to be used for such rebroadcasts.  In many markets, this put a premium on existing translators, as there were not enough translators to rebroadcast all the stations that wanted to be rebroadcast – even where the spectrum to locate such translators existed.  A number of broadcasters found translators in other communities that could technically fit in the community where the broadcaster operated, and agreed to buy them if they could be moved.  Outside a "major change window", translators can only be moved by "minor changes", i.e. where their existing contour overlaps the proposed new contour.  During translator windows, larger moves are permitted, but the last translator window was in 2003.  Another is not expected for at least another year or, most probably, two or more.  To get around the limitation on major changes, translator licensees would file a series of minor change applications to move a translator from one site to another (commonly referred to as a "hop"), build the translator at each site, and, through a series of minor changes, ultimately move to the city where there was an AM station or HD signal that wanted to use that translator.  For a time, the FCC seemed fine with this process.Continue Reading FCC Letter Questions Multi-Hop Move of FM Translator – Limits on Availability of Translators for AM Stations?

In every license renewal application, applicants must certify that their operations are in compliance with the RF radiation standards set out in Section 1.1310 of the Commission’s rules. In connection with the renewal applications of two Hawaii FM stations, the FCC issued short-term one-year renewals of the station’s licenses, rather than the normal 8 year renewals. The Commission’s decision chronicles a period that spanned several years where the FCC twice found the stations to be in violation of the RF radiation rules, responding to complaints from those who worked nearby. The first time the station had reported that the problem was corrected, the FCC inspected and found that it still existed. Finally, after these inspections and FCC fines for noncompliance, the stations moved to new sites that resolved the issues.

Beyond the demonstration of how seriously the FCC takes its RF radiation rules, and how broadcasters need to be truthful and accurate in reporting on the state of their compliance, the decision shows the FCC’s process of evaluating penalties when deciding whether to issue a license renewal to an applicant with a history of rule violations. The FCC has several choices when confronted at license renewal time with violations of its rules. In many cases (like public file violations that we wrote about last week), the FCC will simply issue a fine. As in this case, the FCC can issue a short-term renewal. But, in the case of serious violations, the FCC can “designate a case for hearing”, meaning that they send the renewal application to an administrative law judge (a judge who is part of the FCC) to hold a trial-type hearing to determine if the license should be revoked. When is that most serious option pursued?Continue Reading Short Term License Issued to Radio Stations Because of Violations of RF Radiation Rules – Showing the FCC’s Options for Penalties at License Renewal Time

In the wake of Commission’s rejection of hundreds of closed captioning waivers last year, many small television producers are now seeking new waivers for relief from the Commission’s television closed captioning rules.  Last October, the Commission overturned nearly 300 "economically burdensome" captioning waivers on the grounds that the FCC had failed to apply the correct standard of review and…

The FCC today released its further Public Notice in connection with FCC Auction No. 93, which offers for sale 119 construction permits for new FM radio stations in various communities across the country.  Further details about the auction can be found in our earlier post here as well as on the Commission’s auction page here.  In all, 145 applicants…