Broadcast Law Blog

In two recent FCC decisions, one dealing with a commercial operator and that other with a noncommercial licensee, the Commission's staff addressed the issue of how large an FCC fine could be imposed on a broadcaster without that fine being subject to reduction because of the licensee's inability to pay.  In the first case, a commercial station was fined for violations of the EAS rules.  As we've written before, EAS seems to be the most common violation found at broadcast stations by FCC inspectors.  However, what is most notable about this decision is not the violation, but the Commission's discussion of the penalty for that violation.  As in many cases, the licensee argued that, as it had experienced several years of financial losses, the amount of its fine should be reduced as the payment of that fine would impose a financial burden on it.  The FCC rejected the argument, finding that as the fine was less than 2% of the licensee's gross revenues, it was not excessive.  The Commission stated that, while profits and losses may be important in determining whether a licensee can pay a fine, in most cases, if the fine is less than 2% of gross revenues, it will not be considered excessive even if the licensee has not been making a profit as it it not a significant overall expense.  Therefore, the Commission refused to reduce the fine because of financial hardship argument.

In the noncommercial case, the applicant claimed that a fine that it was issued for not having any quarterly programs issues lists in it public file should have been reduced because that fine would significantly deplete the station's budget that had been allocated to it by the School District with which it was associated.  However, the licensee only provided the FCC with information concerning the budget allotted to the radio station, and it did not provide any financial information about finances of the licensee school district.  Without that information, the Commission stated that it could not determine that the fine was excessive, so it did not reduce the fine on the basis of financial hardship.  Clearly, the Commission is not anxious to reduce a fine based on the licensees financial inability to pay, so a licensee looking for such a reduction must carefully document its request showing that the fine would impose a financial hardship.

Posted By David Oxenford In Emergency Communications , FCC Fines , Noncommercial Broadcasting | Permalink | 0 Comments | Email entry

The FCC has just issued orders fining two stations, one for $8000 and one for $5000, for not having EAS receivers that were in compliance with FCC rules.  The stations, which are located in the same building, shared one EAS receiver.  According to FCC rules, co-located stations can share EAS receivers when they are also co-owned.  Here, however, the stations were not under common ownership so, under the rules, they could not share the same receiver.  In addition, in connection with the station that received the higher fine, the FCC noted that the receiver was not properly calibrated, having incorrect date and time information - being set permanently on January 10, 1995.  As the system was set up to automatically retransmit the required monthly EAS tests, and those tests would not be properly relayed if they were encoded with a date that the system did not think had yet occurred, the station had not been transmitting the required monthly tests, nor noting the failure to do so in their station log.

In attending several engineering seminars at broadcast conventions in the last few months, I've noted that broadcast compliance inspectors consistently identify non-working EAS receivers as the number one compliance problem at broadcast stations.  And one of the biggest problems is with receivers that either have never had the correct date set, or which have a clock which is malfunctioning so that the correct date and time is not properly updated.  Inspectors have also noted that many times they find EAS receivers not having the proper audio inputs so that they can receive the station that they are supposed to be monitoring, or proper outputs so that they can relay the tests that they do receive.  And, as a station's chief operator is supposed to be weekly checking the station's log, which should include a record of all EAS tests sent and received, these discrepancies should be noted within a few days - yet they often go unnoticed for long periods of time - meaning that the station can also be fined for not having properly maintained their station log.  As these fines can add up, stations should insure that their equipment is working and monitored to avoid making some involuntary contributions to the US Treasury.

Posted By David Oxenford In Emergency Communications | Permalink | 1 Comments | Email entry

I’m writing this entry as I return from the annual convention of the Iowa Broadcasters Association, held this year in Des Moines, Iowa. Anyone who has read, watched or listened to the national news this week knows of the terrible tornadoes that devastated a Boy Scout camp in that state, and the floods ravaging many of its cities and threatening others. I arrived in Iowa on Wednesday having just completed the filing of reply comments in the FCC’s localism proceeding, and after reviewing the many comments filed in that proceeding. After talking with, watching and listening to the Iowa Broadcasters, I was struck by the contrast between the picture of the broadcast industry contained in the Commission’s notice of proposed rulemaking and that which I saw and heard reflected in the words and actions of the broadcasters. I could only think of how the broadcasters of Iowa and the remainder of the country have dealt admirably in their programming with the disasters that nature has sent their way, and with the other issues facing this country every day, and have been able to do this all without any compulsion by the government. Why, when we have probably the most responsive broadcast system on earth, do we need the government to step in and tell broadcasters how to serve their communities?

At dinner on Wednesday, I watched one station general manager repeatedly getting up from his meal to take calls from his station about their coverage of a tornado that had come within a quarter mile of his studio, and how he had to insist that his employees take shelter from the storm rather than continuing to broadcast news reports from their exposed location as the tornado bore down on them. Another told me of how he and another employee had spent the previous day piling sandbags around the station to keep the water from flooding the studio, all the time reporting between every song the station played updates on the weather and travel conditions in their community. Other stations had continued to operate after their tower sites flooded by gerry-rigging antennas on dry land to permit their continued operation. In one of the more minor inconveniences, one station talked about operating for a few days after their city’s waterworks had been inundated by floods , meaning that their studio (and the rest of town) had no running water for drinking or even for flushing the toilets.  Yet, between these inconveniences, large and small, the broadcasters continued their service, without being told how by the government.

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

With the recent spate of severe weather throughout the country, a reminder about the FCC's rules on the presentation of specific emergency information is in order.  The FCC rules requires that any specific emergency information - not a generalized warning, but a specific warning directed at a specific location - must be presented visually as well as in oral form. So if you say that there is a tornado headed to a particular community, and people in the northern portions of the city should head to their basements or an interior room, that information should be presented visually as well as through the statements of the weathercaster who is stating those words.  The nature of the emergency and any information about how to cope with it that is aurally presented must also be presented in some visual manner.  Some time ago, the FCC issued a public notice on this subject.  A correction to that notice, making clear that the emergency information need not be closed-captioned in an emergency, as long as the information is presented in a visual format, is accessible through a previous post on our blog, here.

The Commission made clear that television stations, in emergency situations, need not close caption this information about an immediate and specific emergency, but can present it open captioned, on a chalk board or white board, or in any other way that it is visually apparent to those with hearing difficulties.  The Commission recognized that closed captioning might not be available if an emergency arose outside of the normal news hours, and felt that it was more important that the information be carried than that it be closed captioned.  As the FCC has fined stations for not providing in a visual form this specific information about where there is an emergency and what steps to take to prepare for the emergency, stations should be sure that they are observing these requirements. 

Posted By David Oxenford In Emergency Communications | Permalink | 0 Comments | Email entry

The FCC has scheduled a Summit on the Emergency Alert System ("EAS"), to be held on May 19.  The EAS system is the alert system used by broadcasters to pass on emergency information from government officials to their listeners.  EAS replaced the Emergency Broadcast System ("EBS") and was intended to be a more reliable substitute for the system originally adopted during the Cold War to convey a Presidential message about a nuclear attack or similar emergency to the entire country.  Over the years, the system has adapted to include information about local emergencies and "amber alerts" about the kidnapping or disappearance of children.  However, especially since 9-11 and some of the hurricanes in the South, questions have been raised about the effectiveness of the system, and means to make the distribution of emergency information more reliable and efficient have been sought.  The FCC currently has a rulemaking pending to determine ways in which that system can be made more efficient - a question sure to be addressed at the Summit.

In the current proceeding on reforming the EAS system, one of the questions that has been asked is how the system should be activated for non-Federal emergencies.  Obviously, the President can still activate the system for a national emergency, but how alerts about local emergencies are initiated is one of the more controversial issues in the proceeding.  Currently, there is no uniform system.  Instead, each state's system may have different points from which an alert can be initiated.  Concerns have been raised that if the ability to initiate an alert is too broadly distributed, alerts may be initiated haphazardly, and if too many alerts are issued, the system will lose its impact and other important programming may be preempted unnecessarily.  Thus, proposals have been made that the alerts should be initiated only by a state's Governor or his or her specifically designated representative. 

Posted By David Oxenford In Emergency Communications | Permalink | 0 Comments | Email entry

The FCC's Emergency Alert System ("EAS") is the bane of many broadcasters.  Failing to have operational EAS equipment, or otherwise failing to comply with the requirements of the rules, including failures to conduct the mandatory tests of the system, are among the most common causes of a fine following an FCC field inspection.  To help ensure compliance with the EAS rules, the FCC has issued a series of booklets outlining the EAS obligations not only for broadcasters, but also for cable systems, satellite radio and wireline video providers.  These booklets can be found here.  As the FCC rules require that these booklets be maintained at the location of normal duty operator for a station or systems, all media companies that are subject to the EAS rules should download and post the appropriate booklet at their control points.

The new booklets cover new requirements imposed on broadcasters in connection with their digital operations.  These operations, along with services provided by satellite radio and telephone company video providers, were only recently made subject to the EAS rules (see our post here).  These booklets provide the first full summary by the FCC of the application of the rules to these services.  Thus, operators need to be sure to not only print out and post these booklets, but read them carefully to make sure that their operations are in full compliance.  Do it today! 

(Update - 12/11/2007 - the FCC today issued an order upholding a fine of $8000 to a cable operator who had EAS equipment that was not installed at the time of an FCC inspection.  This demonstrates how costly EAS violations can be)

Posted By David Oxenford In Emergency Communications | 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

The FCC recently issued a Public Notice reminding television broadcasters of the requirement that, after January 1, 2008, television stations (as well as cable and satellite television systems) must, in each calender quarter, close caption at least 75% of their Pre-Rule Programming.  Pre-Rule Programming is that programming first broadcast or exhibited prior to 1998 for analog programming and prior to 2001 for digital programming.  New Programming, that produced after those dates, should already be captioned by stations.  For details of this requirement (including the different rules that apply to Spanish-language programming), see our firm's memo on this subject, here.  Television station operators should review their programming schedules and contracts to be sure that they will be ready to meet these obligations.

The FCC Public Notice also reminds broadcasters that these requirements are different than the obligations of television broadcasters to provide emergency information visually - not closed captioned, but  visible to all.  We have written about how serious the FCC takes these emergency obligations in connection with fines that have been issued to broadcasters for providing on-air information orally without any visual presentation for the hearing impaired .  See, for instance, our entries, here and here.  With hurricane season still in full swing, broadcasters must keep these rules in mind, and remind their on-air staff to remember to comply with these obligations.

Posted By David Oxenford In Emergency Communications , General FCC , Programming Regulations , Public Interest Obligations/Localism , Television | Permalink | 0 Comments | Email entry

As we're approaching the anniversary of September 11, it may be appropriate that the FCC issued an order on Friday upholding a fine imposed on a radio station that did not have an operating EAS system.  The station, while it had a system in place that was capable of transmitting the required EAS tones, had not received any EAS alerts for about a year, and had not entered any reasons for that failure in its station log at any time during the period.  The FCC initially issued an $8000 fine, but reduced the fine to $6400 based on a showing that the station did not have any history of past violations.  However, even though the station was operating at reduced power for a significant period of time due to towers damaged by a storm, the FCC refused to reduce the fine further based on financial hardship as the fine did not exceed 2% of the station's average gross revenue during the previous three years.

The FCC will reduce fines for a variety of reasons - the most common being the past good record of the station.  In most cases, as here, a showing that the station has not previously been fined will be sufficient to demonstrate the past compliance of the station and justify some reduction in the amount of the fine.  Stations also often plead that they cannot afford to pay a fine.  The 2% of gross revenue standard announced by the Commission in this case seems to set the threshold at which the Commission will consider that plea.  To prove that a reduction of a fine is in order, according to this case, a station needs to submit financial statements showing the past three years performance, and demonstrating that the proposed fine will exceed 2% of the station's average gross revenues.

Posted By David Oxenford In Emergency Communications , FCC Fines | Permalink | 0 Comments | Email entry

The FCC today issued the long-awaited text of its decision on Digital Audio radio - the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future - 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues - some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas - one to be used solely for digital use - upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below. 

Posted By David Oxenford In AM Radio , Digital Radio , Emergency Communications , FM Radio , Multiple Ownership Rules , Noncommercial Broadcasting , Payola and Sponsorship Identification , Political Broadcasting , Programming Regulations , Public Interest Obligations/Localism | Permalink | 2 Comments | Email entry

Today, the FCC entered into a consent decree with a San Diego Television station, agreeing to an $18,000 "voluntary contribution" to the US Treasury to settle a complaint against the station for its alleged failure to provide a visual presentation of emergency information to persons with hearing disabilities during local wildfires in October 2003.  The FCC rules require TV stations to provide a visual presentation of emergency information that is being aurally provided, for the benefit of hearing impaired viewers. The presentation can be closed captioning, or presented through any other visual means that conveys to the hearing impaired important details about a current emergency and how to deal with it.  We wrote about this issue last summer, when the FCC released a public notice setting out details of licensees' responsibilities in this area. 

The consent decree also required that the licensee provide closed captioning and other accommodations, including newsroom reminders to contact captioning service during emergencies, a telephone speed-dial button to the captioning service, and distribution of the visual presentation policy to employees every six months.   This is the most recent example of the FCC's continued reliance on enforcement by consent decree.  Consent decrees conserve Commission resources and enforce FCC policy on a going-forward basis rather than merely issuing fines or forfeitures for past behavior.  Also, a licensee does not admit liability.  However, such decrees allow the Commission to impose penalties far in excess of those required by the rules.  For instance, in this case, the agreement to provide a speed dial number and closed captioning of on-the-spot news goes beyond any requirement of the rules.  We recently wrote about the use of consent decrees in connection with huge penalties imposed in connection with payola enforcement and children's television rule violations. 

Posted By David Silverman In Emergency Communications , FCC Fines , General FCC | Permalink | 0 Comments | Email entry

As 2006 hurtles to a close and 2007 looms on the horizon, two quick reminders about a couple of upcoming effective dates.

First and foremost, as of December 31, 2006, the Commission's Emergency Alert System ("EAS") rules will be extended to digital services.  Specifically, as of December 31st, digital television, digital cable, digital radio (including LPFMs), and satellite digital radio, will be required to comply with Part 11 of the Commission's Rules, which require participation in all national EAS activation, and periodic testing of EAS equipment.  More information regarding the EAS rules for digital services can be found in our earlier blog of November 21, below.   

Second, the changes to the FCC's Children's Programming Rules, including the rules governing DTV multi-casting, become effective January 2, 2007.  These new rules are summarized in our earlier entry of October 24, below, and in our recent Bulletin.  Most notably, the rules affirmed the requirement that DTV stations broadcasting multiple streams of programming must increase the amount of kid vid programming in proportion to the amount of additional free video provided.  Accordingly, DTV stations that are multi-casting programming on multiple streams should ensure that they have enough children's programming lined up by January 2nd to meet the new requirements.

Posted By Brendan Holland In Children's Programming and Advertising , Digital Radio , Digital Television , Emergency Communications , General FCC | Permalink | 0 Comments | Email entry

Just a reminder that as of December 31, 2006, the Commission's EAS rules will be extended to most digital services.  Specifically, as of December 31st, digital television, digital cable, digital radio (including LPFMs), and satellite digital radio, will be required to comply with Part 11 of the Commission's Rules, which require participation in all national EAS activation.  Furthermore, like their analog brethren, digital services will be required to conduct monthly and weekly tests of the EAS procedures consistent with the Commission's Rules. 

Digital television and digital radio airing multiple streams of programming are required to make EAS messages available to viewers and listeners on all program streams, including both free and subscription based channels.  Stations airing multiple programming streams have a bit of flexibility to determine how the message will be provided over the multiple streams.  For example, DTV stations and HD Radio stations can either transmit the emergency signal separately over each stream, or carry the message on one stream and force tune the other streams to that main channel. 

Participation in state and local Emergency Alert Systems by digital television and digital radio remains voluntary, but if stations elect to participate in such activations, they must comply with the Part 11 EAS rules.  Also, it is noted that  Direct Broadcast Satellite television has been given slightly longer to comply with the EAS rules, and must comply with these rules by May 31, 2007. 

Posted By Brendan Holland In Digital Radio , Digital Television , Emergency Communications , General FCC | Permalink | 0 Comments | Email entry

Apparently the FCC misspoke when it emphatically stated on July 20, 2006, that “critical details of emergency information must be closed captioned” (emphasis in the original) by stations that cannot use the electronic newsroom technique to caption their news live programs.  (See our July 20^th blog below for further details.)  Upon further reflection, the Commission has revised its stance, and now recognizes the potential problem with requiring stations to live-caption all emergency information - if live-captioning resources are not available when the emergency news breaks, it could force a television station to choose between not providing emergency information or covering the news anyway but breaking the FCC’s closed captioning rules.   

Posted By Brendan Holland In Emergency Communications | Permalink | 0 Comments | Email entry

As the second named tropical storm of this year makes its way up the East Coast, the FCC has warned video program distributors, including television stations and cable systems, to remember the Commission's rules on the dissemination of emergency information.  In a public notice issued today, the Commission summarized its rules regarding the visual presentation of emergency information to the hearing and visually impaired.  in the last two years, the FCC has been aggressive in penalizing stations which did not make emergency information - information about an imminent threat to health or safety - available visually so that the hearing impaired could understand the message being conveyed.  And the rules also require that an audio tone to alert the visually impaired be played if a station presents emergency information by text without interrupting other programming. 

Today's reminder ends with information about how to file a complaint against stations who do not comply with the requirements.  This seems to be a clear warning to broadcasters that they need to carefully review the requirements, and be ready to comply should disaster strike.

Posted By David Oxenford In Emergency Communications | Permalink | 0 Comments | Email entry