Last week brought a number of Washington developments that we’ll write about in more detail soon, including the FCC’s decision to relax the limitations on foreign ownership of broadcast stations. But there were also a number of other actions that bear mention – including the decision released late Friday to extend the deadline for the filing of Biennial Ownership reports that are to be filed by all commercial broadcasters – including AM, FM, TV. LPTV and Class A TV station owners. These more complicated versions of FCC Form 323 are filed every other year to assess diversity in the ownership of broadcast stations. These reports were originally to be filed on November 1, but the filing date was extended to December 2 earlier this year (see our article here), due to the recognized complexity of the completion and electronic filing of these forms. Now, after the FCC shutdown deprived broadcasters of several weeks’ preparation time in which the electronic forms were available for use, the deadline has been extended to December 20. The FCC Public Notice warns filers to try to submit their reports before the deadline to avoid potential slowdowns in the electronic system due to an expected heavy volume of users as the deadline approaches.
In fact, the effect that heavy demands on FCC’s electronic filing system was made evident by the FCC’s last-minute decision to extend by one day the last day for filing LPFM applications. That extended deadline passed on Friday, after being extended from the originally announced extended deadline (due to the government shutdown) of Thursday, because glitches in the FCC’s electronic filing system delayed last-minute filings before that Thursday deadline. There has not yet been any announcement of the number of LPFM applications filed in the window, but many think that the number will rival if not exceed the thousands of applications filed in the 2003 FM translator window – applications that the FCC is still processing over 10 years after their filing.
Another long-standing FCC issue has been the standards that the FCC will use in enforcing its policy against broadcast indecency. The FCC still struggles to decide how to enforce its policy after it was determined by the Supreme Court to not have been sufficiently articulated so that a broadcaster can know what is prohibited and what it permitted. We wrote several times about a recent FCC request for public comment on how the Commission can decide which cases are so egregious that they need to be prosecuted in the future (see our articles here and here). But, in a Consent Decree with Liberman Broadcasting released last week, the FCC demonstrated that it was still enforcing that policy despite its uncertainty over the standards to be used, requiring a $110,000 payment and an agreed-upon compliance plan to be instituted in exchange for dismissing pending indecency complaints. The complaints were filed against a Spanish-language television operator who broadcast a specific program that was allegedly indecent. According to the FCC’s Public Notice describing the Consent Decree, the programming “featured pornographic film performers and exotic dancers who engaged in behavior inconsistent with the Commission’s indecency standards for broadcast programming.” A fine of that magnitude demonstrates that the FCC still takes indecency serious despite the ongoing proceedings to define just how its standards will be enforced.
Finally, in connection with another request for public comment, the FCC announced the dates for public comment on the proposal for the elimination of the “UHF discount.” That proceeding proposes to eliminate the current policy of counting UHF television stations as reaching only 50% of a market in assessing compliance with the multiple ownership rules that limit one owner from having attributable interests in television stations reaching more than 39% of the nationwide television audience (see our summary of the FCC’s proposal to eliminate the UHF discount here). The proposed elimination could put the brakes on the acquisition of new television stations by many of the country’s biggest television owners. Comments in this proceeding will be due on December 16, and Reply Comments on January 13.
As with seemingly every week, last week was another busy one for the FCC in dealing with legal issues of which broadcasters should be aware.