Broadcast Law Blog

The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television Channel 6 (and possibly Channel 5) for FM use after the completion of the television digital transition, to allow FM licensees who multicast to sell one of their multicast channels independently of the main channel, to allow certain AM stations with expanded band channels to avoid turning in one of their channels at the end of the 5 year transition period if the licensee is a designated entity (or sells one of its channels to a designated entity), and to provide Class A television stations with must-carry status.  The rulemaking proceeding will also look at whether the current definition of a designated entity (focusing on the fact that it is a small business as opposed to any review of the race or gender of its owners) is the one that the FCC should continue to use.  Thus, this is an important proceeding in which many broadcasters should be interested, and now you have more time to prepare comments on the issues that are raised.

Posted By David Oxenford In AM Radio , Cable Carriage , EEO Compliance , FM Radio , Low Power Television/Class A TV , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

For Tuesday's FCC meeting, the Commission had an agenda crowded with items dealing with the cable television industry.  The issues that were to be discussed may well have provided the controversy that caused the Commission to start its meeting 12 hours after its scheduled beginning.  At the end of the day, two controversial issues were discussed, prompting strong rhetoric from the Commissioners.  Two specific items were adopted over dissent from some of the Commissioners.  In the first, the Commission agreed to collect more information from cable systems about their subscriber numbers to determine if the cable industry has surpassed the 70/70 threshold, (passing 70 percent of all U.S. television households with 70 percent of those households subscribing to cable) which would open a statutory door for the Commission to adopt more intrusive cable regulations.  Second, the FCC slashed the costs of leased access to cable channels, cutting the costs for non-affiliated programming companies that want to lease channel capacity on cable systems to provide their programs.  Details about both of these actions, and some of the discussions about these items, can be found in a Bulletin published by our firm, available here.

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry

As the Commission held its last localism hearing in Washington on Halloween night, FCC Chairman Kevin Martin's views on how the FCC should insure that stations are responsive to their communities became somewhat clearer.  In his opening statement, the Chairman outlined a set of actions that could be taken by the FCC to insure more service to the public.  While emphasizing the importance of efforts to encourage new entrants into broadcast ownership, the Chairman's proposals to add new regulatory requirements, including requiring that a station be manned during all hours of operation, may well have the result of making it more difficult for any new entrant (or for existing smaller operators) to profitably operate their stations.  In addition, he has offered proposals that would seemingly require cable and satellite carriage of in-state television stations not in a system's DMA - a proposal sure to cause concern to stations in DMAs that straddle state lines.

The Chairman's statement includes the following proposals:

• Requirements for uniform filings by broadcasters quantifying their public service - presumably their news and information programming and the public service announcements that they provide
• Requiring that stations have manned main studios during all hours of operations (not just during business hours)
• Allowing flexibility for LPFM stations to be sold, but adopting new rules to insure that such stations are used for local programming, not something provided from a network or other programming source
• Providing television viewers the ability to get an in-state television stations on cable and satellite even if the county in which they reside is "home" to a DMA with stations in another state
• Capping the number of applications accepted from the 2003 FM translator filing window - which might result in the dismissal of hundreds of applications that have effectively been frozen for 4 years

Posted By David Oxenford In AM Radio , Cable Carriage , Emergency Communications , FM Translators and LPFM , Public Interest Obligations/Localism | Permalink | 1 Comments | Email entry

At its Oct. 31 open meeting, the Commission adopted an Order declaring exclusive access and service clauses in video contracts between cable operators and multiple-dwelling units (MDUs) -- think apartment buildings -- to be unenforceable.  According to the FCC, such exclusive contracts can be harmful, and it expects that the rule change will result in greater choice for consumers and competition among video services providers.  The Commission launched a further proceeding to determine whether it should take similar action against exclusivity clauses entered into by Direct Broadcast Satellite television providers, private cable operators, and other multichannel video programming providers.  The further proceeding will also explore whether the Commission should prohibit other types of exclusive arrangements in the provision of video services.  It is unclear when this order will become effective.  The text of the decision has not yet been released, but once the new Order become effective, the rules will apply to existing as well as future contracts as the FCC did not provide any transition or grandfathering period for existing agreements.  Given Chairman Kevin Martin’s sense of urgency for this issue, the FCC is likely to release that text as soon as possible.  Representatives of various interest groups, including cable operators, have indicated publicly their intention to challenge the order in court.  For more details about the Commission's action please see DWT's recent bulletin. 

At the same Oct. 31^st meeting, the Commission also adopted a Second Report and Order extending a number of cable franchising rules that previously applied only to new video competitors to incumbent cable operators.  Earlier this year, the Commission had adopted rules streamlining the local cable franchising process for new video entrants (i.e., telephone companies) and clarifying that certain payments often demanded by local franchise authorities would be considered franchise fees and therefore counted against the 5 percent franchise fee cap.  By its Second Report and Order adopted this week, the Commission decided to extend many of these rules to incumbent cable operators as well.  According to Chairman Martin, extending these rules to incumbent cable operators will help level the playing field between new entrants in the video delivery market and existing operators.  For more details about the Commission’s Second Report and Order, please see DWT’s recent bulletin on the issue. 

Posted By Brendan Holland In Cable Carriage , General FCC , Television | Permalink | 0 Comments | Email entry

Late Tuesday night, in a meeting originally scheduled to start at 9:30 in the morning, the FCC adopted an order establishing the rules governing the carriage of broadcast signals by cable operators after the February 17, 2009 transition to digital television.  While the full text of the Commission’s action has not yet been released (and may not be released for quite some time), based on the FCC’s formal news release and the statements made by the commissioners at the meeting and in their accompanying press releases, we can provide the following summary of these important FCC actions.

First, for a period of at least three years after the February 17, 2009 transition from analog to digital broadcasting, cable operators will be required to make the signals of local broadcast stations available to all of their subscribers by either:  (1) carrying the television station's digital signal in an analog format, or (2) carrying the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content.  This rule reflects a compromise position offered by the National Cable & Telecommunications Association, and is regarded as less burdensome on cable systems then the FCC's original proposal of an indefinite analog carriage obligation. 

Second, the FCC reaffirmed its existing requirement that cable systems must carry High Definition (HD) broadcast signals in HD format, and further that it must carry signals with “no material degradation”, i.e., with picture quality as good as any other programming carried by the operator.  In affirming its "no material degradation" standard, the FCC rejected a proposal by the broadcast industry that would have required operators to pass-through all of the bits in digital television broadcast signal.

Posted By Brendan Holland In Cable Carriage , Digital Television , Programming Regulations , Television | Permalink | 1 Comments | Email entry

The FCC today released its agenda for its September open meeting, to be held on September 11.  As might be expected, the Commission is to consider a number of matters dealing with public safety and homeland security issues for communications companies.   However, the Commission will also be considering a number of items dealing with cable television.  This includes the proceeding on the obligations of cable systems to carry broadcast television stations after the digital transition.  Also to be considered are a proceeding involving the possible extension of the rules restricting cable systems with interests in programming networks from having exclusive rights to that programming, and another proceeding addressing issues left over from the Commission's order adopting rules restricting the ability of local franchising authorities to delay the franchise applications of competitive cable systems (i.e. those that will compete in a franchise area with the existing system).  Comments in each of these proceeding were only received by the FCC in the last few months - so the Commission being ready to act on these matters this quickly is unusual.

Our firm has published memos on each of these issues.  The memo on the post-transition obligation of cable systems to carry television stations can be found here.  A summary of the proceeding on the rights to exclusive cable programming can be found here.  The advisory dealing with the Commission decision on local franchising authorities and their processing of applications for competitive franchises can be found here.  More on these issues after next week's meeting.

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry

We recently wrote about the FCC's proceeding to assess the status of stations that are primarily home shopping in nature - to determine if such stations are serving the public interest and are entitled to must carry status on cable systems.  The FCC has just issued an Order extending the comment deadline in that proceeding.  Comments are now due on July 18, with replies to be submitted on August 2.  With a proceeding with its roots reaching back to 1993 - a few more days to decide the issues involved probably don't make much of a difference! 

Posted By David Oxenford In Cable Carriage , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

We wrote last month about the fact that the Copyright Office has initiated a major proceeding to reexamine the statutory licenses that allow cable systems and satellite distributors to retransmit the programming of local television stations.  A statutory license allows retransmission of television signals by these multichannel video providers without getting the consent of copyright owners of each and every program (and program elements contained in the programming, e.g. music) that a broadcast station may feature in its programming. As part of this proceeding, the Copyright Office promised to hold public hearings on these licenses. The Office has announced the schedule for these hearings, to be held from July 23  to July 26. Parties interested in participating in the hearings need to register their interest on or before June 15. The Copyright Office’s notice about the hearing, which contains instructions on the process for filing a request to testify, can be found here.

Written comments in this important proceeding are due July 2. The Copyright Office has also encouraged interested parties to file suggested questions to be posed to the participants in the hearing by July 2.  Reply comments in the case are due on September 13.  The Copyright Office has also encouraged parties to respond to the testimony presented at the hearing in their reply comments. 

Posted By David Oxenford In Cable Carriage , Internet Video | Permalink | 0 Comments | Email entry

As we have written, here and here, the FCC recently commenced a proceeding to determine if it should adopt rules to require analog cable systems to carry digital television stations after the digital television conversion is complete in 2009.  The proceeding is also to determine what a cable system must do to ensure that there is no material degradation in the signal of a digital television station which is being retransmitted.  Comments in this proceeding are due on July 16.  For more information about the questions being asked in this proceeding, our firm has just released a memo summarizing the issues, which can be found here.

Posted By David Oxenford In Cable Carriage , Digital Television | Permalink | 0 Comments | Email entry

In one of those "from the depths of history" moments, the FCC on Friday released a Public Notice asking that the record be refreshed as to whether television stations that program a substantial amount of home shopping programming operate in the public interest, and whether they are entitled to must-carry status on cable systems.  In 1993, the FCC found that these stations did operate in the public interest - providing shopping opportunities to the homebound and alternative programming not available on other stations.  Soon thereafter, a petition for reconsideration of that action was filed, arguing that these stations did not serve the public interest for reasons including the fact that they preempted the use of spectrum by others who could provide better service.  That petition sat at the Commission for the next 14 years.

Now, when home shopping stations have largely disappeared from the television universe, the FCC has resurrected the petition, and is asking for public comment on the issues that it raises, and is even expanding the inquiry.  The Commission asks how many television stations still program substantial amounts of shop at home programming, whether the programming is in the public interest, whether these stations preclude other more worthy uses of the television spectrum, and whether these stations meet their public interest obligations including their obligations under the FCC's Children's Television rules.

Comments are due 30 days after the Notice is published in the Federal Register, and Reply Comments are due 15 days later.

Posted By David Oxenford In Cable Carriage , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

This afternoon the Commission released its Notice of Proposed Rule Making (NPRM) regarding the carriage of digital television (DTV) broadcast signals by cable systems.  The NPRM was adopted at last week's FCC open meeting and and seeks answers to essentially two questions:  First, how to objectively define "material degradation" for purposes of determining compliance with the statutory requirement that cable systems carry local broadcast signals without material degradation; and second, how to ensure that the signals of digital television stations are available to analog cable subscribers after the DTV transition is completed on February 17, 2009.  In connection with these two specific issues, the NPRM also seeks input on ways to "promote the goal of . . . transitioning all consumers - including cable consumers - to digital" as a general matter. 

Both issues are sure to draw a significant number of comments, however, the question of how the Commission's cable carriage rules will be modified to address the conversion of local broadcast stations from analog to digital will undoubtedly be a hotly debated issue.  The Commission has taken as its starting point for the discussion of DTV cable carriage the statutory requirement that broadcast stations that are entitled to mandatory cable carriage must be viewable via cable by all television receivers of a subscriber that are connecetd to a cable system by a cable operator or for which a cable operator provides a connection.  To achieve the viewability requirement the rulemaking suggests two alternatives for cable systems:

1. Carry the signals of must-carry stations in analog format to all analog cable subscribers, or
2. For “all-digital” systems, carry those signals only in digital format, provided that all subscribers wtih analog TV sets have the necessary equipment to view the broadcast content. 

Comments will be due on July 16, 2007, with Reply Comments due August 16, 2007, and a copy of the NPRM, which includes the Commissioners' statements on the issue, is available here.  Comments may be submitted in paper, or through the FCC's Electronic Comment Filing System (ECFS) available here.

Posted By Brendan Holland In Cable Carriage , Digital Television | Permalink | 0 Comments | Email entry

At it's meeting on Thursday, the FCC announced that it is commencing a proceeding that would require cable systems to adopt measures to insure that over-the-air television stations would continue to be available even to analog cable subscribers after the end of the digital television subscribers.  This might include some sort of dual carriage requirement that a cable system carry both an analog and a digital feed of a television station's signal (which the FCC had rejected for pre-transition cable carriage), or that the system provide a converter box to the analog subscriber.  While the FCC has not released the full text of its Notice of Proposed Rulemaking setting out the details of the issues that it raises, a Public Notice about the proposal can be found here.  A summary of the issues is also available in our firm's bulletin, here.

Watch for more on this proceeding once the full text of the Notice of Proposed Rulemaking is released.

Posted By David Oxenford In Cable Carriage , Digital Television | Permalink | 0 Comments | Email entry

On Thursday, the FCC issued its Report on violent programming on television, finding that such programming has a negative impact on the well being of children, and suggesting that Congressional action to restrict and regulate such programming would be appropriate.  A summary of the findings of the Commission can be found in our firm's bulletin on the Report, here.  As we point out in our bulletin, the Commission did not adopt this report with a united voice, as both Commissioner Adelstein and McDowell expressed concerns about the thoroughness of the report, the practicality and constitutionality of drawing lines between permitted and prohibited violence in programming, and even whether the government is the proper forum for restricting access to such programming or whether this isn't fundamentally an issue of family and parental control. 

The Report suggests that legislative action to restrict violent programming  or to channel it to certain time periods might be appropriate as parents are often not home when children watch television, and technological controls, like the V-Chip, are ineffective as parents don't know that they exist or, if they are aware of the existence of the controls, they don't know how to activate them.  The Commission also suggests that the ratings given to programs are not always accurate.  An interesting alternate take can be found in an article in Slate, here, citing a study not mentioned by the FCC finding that parents, even when carefully educated about the V-Chip and its uses, do not use it.  This seems to indicate that parents are not as concerned about the issue as is the FCC, and suggests that the real motivation is not restricting what is presented to children, but instead what is available to adults.

Posted By David Oxenford In Cable Carriage , Children's Programming and Advertising , Programming Regulations | Permalink | 0 Comments | Email entry

The Copyright Office last week released a wide-ranging Notice of Inquiry, asking many questions about the statutory licenses that allow cable and satellite companies to retransmit broadcast television signals without getting the specific approval of all the copyright holders who provide programming to the television stations. The notice was released so that the Copyright Office can prepare a report to Congress, due June of 2008, in which it will present its views as to whether the various statutory licenses still perform a necessary function, and whether any reforms of the current licenses are necessary. To complete its report, the Notice asks many questions about how these licenses currently work, whether the licenses function efficiently, and whether they should be retained, modified or abolished in favor of marketplace negotiations. The Notice even asks whether the existing statutory licenses should be expanded to take into account the different ways video programming is now delivered to the consumer, including various Internet and mobile delivery systems. Thus, virtually anyone involved in the video programming world may want to be part of this proceeding. Comments are due July 2 and reply comments are due September 13.

The cable and satellite statutory licenses were adopted by Congress to allow these multi-channel video systems to retransmit broadcast  signals. Without these licenses, the individual owners of copyrighted material – including syndicated,  network, sports, and music programming -- would have to be consulted to secure necessary copyright approval before the television signal could be retransmitted. As the multi-channel video providers would, in many cases, not even know who held all these rights, they instead pay a statutory license which is collected, pooled, and then distributed to the various rights holders in proportions agreed to by those copyright holders or, in the absence of agreement, set by the Copyright Royalty Board.

Posted By David Oxenford In Cable Carriage , Digital Television , Internet Video , On Line Media | Permalink | 0 Comments | Email entry

The FCC's agenda for its meeting to be held on Wednesday, April 25, contains four separate items related to the digital television transition.  The issue receiving the most press coverage is the proposal advanced by Chairman Martin that would require the cable carriage of television signals in both analog and digital formats until all cable subscribers have been transitioned to a digital cable format.  As the item addressing this issue is a Notice of Proposed Rulemaking, no final rules will be adopted this week.  Instead, this will be an issue on which parties can comment, and will likely take the FCC quite some time to resolve.  The agenda contains other items that may ultimately be just as important.

For consumers, the Commission will consider new rules on the labeling of television equipment - presumably to warn consumers that they may be buying a piece of analog television equipment that may not work after the February 2009 digital conversion.  Another item will address other technical issues in the digital transition.  The final item is not coming from the Media Bureau which usually considers broadcast matters, but instead from the FCC's Wireless Bureau, which regulates the spectrum at Channel 52 and above (the so-called 700 MHz spectrum) which will be fully reclaimed from broadcasters for wireless services after the end of the digital television transition. The item will consider a number of issues on how operators in that spectrum will be able to operate as they come online.  As there are already uses of that spectrum to provide media services, e.g. QualComm's Media Flo technology about which we wrote here, and other wireless broadband uses are planned, broadcasters should monitor the developments that arise in this area as they may well affect the competitive environment in the years to come.

Posted By David Oxenford In Cable Carriage , Digital Television | Permalink | 0 Comments | Email entry

This week, the FCC released its Order on Video Franchising Requirements, setting out rules that require that municipalities timely process requests by companies for local franchises for multi-channel video systems to compete with existing cable systems.  For details of this ruling and the issues to be resolved in a Further rulemaking proceeding, you can read our firm's advisory summarizing this Commission decision.  We wrote about the significance of this ruling in December.

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry

By now, everyone knows that XM and Sirius have announced plans to merge into a single nationwide satellite radio service provider.  This plan is, of course, subject to approval of the FCC.  The NAB has announced plans to oppose the merger, and Congress today scheduled hearings on the matter, to be held next week.  The obvious issues to be considered by the Department of Justice and the FCC will be whether the merger will be anti-competitive and whether it will serve the public interest.  But there are numerous other legal issues, possibly affecting other FCC proceedings, that may well come out of the consideration of this merger.

For instance, the merger raises the question of whether satellite radio is a unique market that should not be allowed to consolidate into a monopoly, or whether there is a broader "market" for audio programming encompassing not only satellite radio, but also traditional over-the-air radio, iPods, Internet radio, and other forms of audio entertainment.  While the opponents of the merger may argue that satellite radio is a unique market, such a finding may affect the broadcast multiple ownership proceeding, where some broadcasters are advancing arguments similar to the satellite companies in hopes that the FCC will loosen multiple ownership restrictions. 

Another issue that seemingly will be raised by the merger is how important a la carte programming is to FCC Chairman Martin.  The Chairman has been pushing both satellite and cable television companies to allow consumers to purchase only the channels that they want rather than whole packages of channels.  He has argued that consumers could save money by buying only the channels that they want, and consumers could also avoid programing that they don't want (like adult oriented content).  Service providers have countered that forcing the unbundling of program tiers will make it economically unfeasible to offer many of the more niche program channels.  Published reports indicate that part of the merger proposal to be advanced by the satellite companies may include a proposal for a la carte pricing.  Thus, this case may show how important the Chairman really believes such offerings are - and whether that offering may help tilt the public interest considerations in the proceeding.

Posted By David Oxenford In Cable Carriage , Digital Radio , Internet Radio , Multiple Ownership Rules , Programming Regulations | Permalink | 0 Comments | Email entry

The FCC staff seems to be under orders to act on any long pending items sitting on their desks that they can, resulting in a flurry of radio and television license renewal grants, fines, application dismissals, and other decisions, all occurring in recent weeks.  Apparently taking the view that any action is better than inaction, the staff has been granting or dismissing pending items at an unprecedented clip, sometimes to ill effect.  We've never seen so many fines issued in one month - to many stations for filing late license renewal applications, for having inadequate public files, for failure to comply with the children's television requirements of the FCC's rules, and for  violations of the FCC's EEO rules (which we recently wrote about here and here).  The Commission last week also released a number of decisions on cable carriage issues - often dismissing applications as inadequate without asking for any sort of supplemental information which might have resolved the problems with the filings.  It also has been dealing with a number of long-pending requests for extensions of the Digital Television build-out deadlines.

It is not clear if this unprecedented flurry of action is the result of Chairman Martin pushing to make the Commission more efficient and encouraging the staff to work through older items, or if it is tied to the new Democratic-controlled Congress and the concerns over oversight hearings, or if it is just early spring cleaning, but clearly the Commission has been marching to a different drummer in recent weeks.  We’ll keep watching to see if the frenzied pace keeps up, and more importantly, to see if the effort to clean up some of the long pending matters is extended to the various pending rule makings affecting broadcasting.  See our Advisory on possible broadcast issues for 2007 for a summary of all the rulemaking matters that remain pending.

Posted By Brendan Holland In Cable Carriage , Digital Television , EEO Compliance , FCC Fines , General FCC | Permalink | 0 Comments | Email entry

In a decision released last week on an increasingly common issue, the FCC refused to get involved in a retransmission consent negotiation dispute between a cable television system and a television station.  The dispute involved Sinclair Broadcasting's demands for cash consideration for the carriage of its television stations by cable systems owned by Mediacom Communications.  In a Petition filed with the FCC, Mediacom argued, among other things, that Sinclair was not asking for marketplace rates for the carriage of its stations, and thus was violating the duty of the television station to bargain in good faith with the cable system.

In the decision, the FCC's Media Bureau essentially concluded that there was no obligation of a television station to agree to marketplace rates in exchange for its agreement to provide the cable system with retransmission consent.  Essentially, the FCC said that as long as Sinclair did not offer only a take-it-or-leave-it proposal, the FCC would not get involved in deciding whether a proposed price was reasonable or not.  Sinclair owed no duty to disclose its other deals with other systems to establish what was a marketplace price for its signals, as long as it made offers to Mediacom.   If Sinclair wanted to hold out for more consideration than it had ever received from any other cable system before, that was it's decision.  As the FCC put it, one party was incorrectly valuing the television signal - and that party would ultimately pay in the marketplace if the station was not carried. 

This decision seems to signal the FCC's reluctance to get involved in retransmission consent negotiations.  As long as the parties talk, and make proposals to each other, the FCC will seemingly rarely intervene in evaluating the specifics of those proposals.  This decision can be appealed to the full Commission, though it will be interesting to see if the case is decided through that appeal or the parallel antitrust litigation that is going on, or whether the parties will heed the Media Bureau's admonition in the last paragraph of its decision - to reach a negotiated decision that both can live with, one which won't deprive cable subscribers of access to the signals of the television stations that are involved.

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry

Two recent decisions show a stark divide in the approach of the Democratic and Republican FCC Commissioners which may indicate the difficulty of reaching consensus on any of the pressing issues which will be facing the FCC in this new year.  The FCC decision on the AT&T acquisition of BellSouth, approved by FCC action on Friday, was a result of AT&T throwing in the towel, surrendering to the demands of the two Democratic Commissioners who were seeking greater consumer protections before voting to approve the acquisition.  In that case, as one of the Republican Commissioners had removed himself from consideration of the matter due to a conflict from a previous job, the Democrats had an effective veto over any FCC decision. 

In the decision reached right before Christmas, requiring local municipalities to act quickly on new video franchise applications and restricting the conditions that could be put on such approvals, the Commissioners again split on party lines.  The three Republicans argued that the restrictions were necessary to encourage the entry of new competition in the multi-channel video world, resulting in the potential of lower prices to consumers.  Democrats, on the other hand, contended that the rules were beyond the FCC's power.  Beyond what some might see as the role reversal represented by the votes (the Republicans looking out for consumer interests while the Democrats were protecting states rights, with Commissioner Adelstein even quoting Ronald Reagan in his dissent), one wonders why these positions broke down on party line.  If the proposal really did exceed the Commission's power, shouldn't Republicans and Democrats alike refrain from acting?  And if the result of this action was really a benefit to consumers, shouldn't Commissioners of both parties have looked for ways that the rules could be adopted within legal bounds?

The seeming inability of the Commissioners to reach consensus on most big issues does not bode well for prompt action on some of the major broadcast issues facing the FCC.  We've already seen a decision on adopting final standards on digital radio (including authorizing nighttime digital operations for AM stations) postponed for over 6 months, reportedly based on arguments over the public service obligations of multicast channels.  And how will the contentious multiple ownership debate be resolved?  And what will happen should one of the Republican Commissioners leave the Commission during the course of the year?  It certainly will be interesting to see these issues play out during the course of this new year.

Posted By David Oxenford In Cable Carriage , Digital Radio , General FCC , Multiple Ownership Rules | Permalink | 0 Comments | Email entry

The FCC released its Public Notice setting out the agenda for its next meeting to be held on December 20.  Included on the agenda is a Report and Order and Further Notice of Proposed Rulemaking on video franchising reform.  According to press reports, the FCC's consideration may include timelines requiring local franchise authorities to act quickly on requests for new franchises, limits on franchise fees and build-out requirements, and perhaps some requirements that cable programming be made available to new franchisees.  If adopted, these rules may hasten the introduction of cable television-like services by the telephone companies. 

TV broadcasters are very anxiously watching this proceeding, as well as similar reform measures proceeding in many states and on Capitol Hill, as many believe that the existence of competing multichannel video providers give broadcasters more leverage in retransmission consent agreement negotiations.  Already, where broadcasters have tried to hold out for some consideration in retransmission negotiations, the existence of DirecTV and the Dish Network have often become crucial places to direct viewers for their network TV service if that service is taken off a cable system when retransmission consent negotiations break down.  Having more multi-channel video competitors as outlets for its programming may make a television station more bold in holding out in cable retransmission consent negotiations.  More competitors may also make cable systems more reluctant to take the chance of losing a network affiliate because the system refuses to pay consideration in return for retransmission consent.  Thus, the FCC's actions this coming week, while having nothing to do directly with television stations, may nevertheless be very important to their future. 

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry

On Thursday, the FCC released an order agreeing to allow a company to provide Direct Broadcast Satellite service to the United States using Dutch satellites.  If this company were to actually implement this service, it would compete directly with DIRECTV and Echostar (Dish Network), and compete as well in the larger multichannel video space with numerous other companies including cable television and, in many markets, the telephone companies who are now introducing video services. 

The fact that the FCC has authorized this service does not mean it will be introduced.  Satellite services must also secure approvals from international agencies that coordinate uses between different countries, and they must secure the substantial financing necessary to construct and launch the satellite in face of all the other competition that exists in the market.  It will be a process to watch over the coming years to see if this service ever comes to market.  But FCC approval is the first step toward introducing this competitive service.

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry

In one of those "man bites dog" situations, the FCC yesterday decided a case where a cable television system asked that the FCC add the communities that it serves to a nearby television market so that it could carry a television station from that nearby market.  This is in contrast to the usual market modification cases where a cable system will ask for relief from its television carriage obligations by suggesting that the FCC delete a community from a station's DMA, or where a television station will attempt to add communities to its market to get must-carry rights on a cable system in communities where the station would otherwise not be carried.

This case arose when a cable system located in Oklahoma wanted to carry a television station from Oklahoma City, even though the system served areas of Oklahoma technically in the Shreveport, Louisiana market.  Because a network affiliation agreement did not allow the Oklahoma City station to give retransmission consent to a cable system outside its market, the cable system decided to change the market so that the system would be considered to be in the station's DMA.  A creative though somewhat unorthodox solution to an unusual problem

Posted By David Oxenford In Cable Carriage | Permalink | 0 Comments | Email entry