Broadcast Law Blog

In several recent speeches and press releases, FCC Commissioner Jonathan Adelstein has challenged the FCC to do more in the regulation of children's programming.  In a recent Press Release, the Commissioner outlined proposals including the following:

• Improve the V-Chip and other program blocking technologies
• Improve ratings information for television programming - including potentially having third parties review programming for its suitability to children as opposed to the television programmers themselves doing the ratings
• In the context of a proceeding on Embedded Advertising that has been rumored for quite some time, look at how such advertising is used in children's programming
• Restrict interactive advertising directed at children.
• Convene a summit to explore these issues

In addition to these proposal, the Commissioner gave a recent speech to the Media Institute in which he expanded on these ideas, and also lengthened this agenda to include further Commission action to define and restrict violent programming.  He also expressed his regrets over the recent decision overturning the FCC's fines for fleeting expletives and urged that action be taken to overturn this decision (see our post here on the FCC's appeal of that decision).  And in yet another recent speech, he emphasized the proceeding on Interactive advertising in children's programming, remarking on how the Commission has a pending proceeding that has been pending and unresolved for several years.  He cited the Commission's tentative conclusion to ban such ads, as broadcasters form a "portal" for children's entrance to the Internet.  While the Commissioner expressed that the FCC had little jurisdiction to do much on the Internet itself (but see our recent post as asking whether the FCC may soon get more power over the Internet), he felt that restrictions on the links to the Internet from television programs would be useful in protecting children. 

Posted By David Oxenford In Advertising Issues , Children's Programming and Advertising , On Line Media , Programming Regulations | Permalink | 0 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

In recent months, the broadcast industry has experienced one of the most active periods of regulatory activity in recent memory. Since November, the FCC has adopted enhanced disclosure obligations concerning the public interest programming of television broadcasters and requirements for an on-line public inspection file; rejected most calls for increased deregulation of broadcast ownership (allowing only the cross-ownership of broadcast stations and newspapers in the largest markets); established specific prohibitions against advertising practices that involved “no Spanish, no urban dictates”; placed mandatory disclosure obligations on television broadcasters in connection with promotion of the DTV transition; proposed rules that could favor low power FM stations over improvements in full-power broadcast services and existing FM translator licensees; and proposed sweeping regulation of broadcasters which could potentially require specific amounts of nonentertainment programming by all stations, restrict the flexibility of broadcasters' location of their main studios, require 24-7 live staffing for all stations that operate on that basis, and perhaps even evaluate the music selection process of radio operators. Rumored to be in the offing are proposals to regulate embedded advertising, to adopt enhanced rules on sponsorship identification in connection with video news releases and payola-like practices, and perhaps even expand EEO reporting requirements (as the FCC recently asked for public comment on the employee-classification information for its long-suspended requirements for the filing of FCC Form 395 – the Annual Employment Report in which stations categorize all their employees by their employment duties, race and gender). And Congress has not been idle, with proposals introduced for the adoption of a performance royalty on over-the-air radio for the use of sound recordings, hearings about potential restrictions on prescription drug advertising, and a proposal to roll back the limited ownership reform adopted by the Commission in December.

With all this activity in a six month period under a Republican administration with a Republican majority on the FCC, during a time of great turmoil in the broadcast industry itself, as television prepares for the digital transition and broadcast revenue growth is slow or nonexistent (based on a variety of factors including general economic conditions and competition from the plethora of new media choices), many broadcasters are wondering what’s going on? And some fear even more changes could come about in any new administration that may come to Washington after the November elections, no matter what the result of that election. The one candidate with the most experience in the regulation of broadcasting, Senator McCain who has chaired the Senate Commerce Committee which regulates the broadcast industry, has by no means been a captive of the broadcast industry – leading efforts to enhance the use of LPFM and at one point pushing a spectrum tax proposal for television broadcasters for the use of the digital spectrum.

Posted By David Oxenford In Advertising Issues , Digital Television , EEO Compliance , FM Translators and LPFM , General FCC , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 3 Comments | Email entry

The Public and Broadcasting is a document first written by the FCC in the 1970s to tell the public about how the FCC regulates broadcast stations, and to tell the public how they can get involved in the regulatory process.  Broadcasters must maintain a copy of the manual in their public file, and make it available to members of the public who request it.  For years, the manual was grossly out of date, finally being updated a few years ago.  Today, the FCC issued a Public Notice announcing that they have once again updated The Public and Broadcasting, and that all stations need to place the new version in their public file.  The new version, with a new subtitle "How to Get the Most Service from Your Local Station" can be found here.  Stations should print that document, and place it in their public file.

The manual is updated, and sets out most of the programming and other operational rules that would be of interest to the public.  The manual seems to be objective - pointing out that most programming decisions are left to the broadcast licensee to avoid violating the Freedom of Speech rights of the broadcaster. 

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

The deadline for submitting comments in the Commission's Localism rule making proceeding is fast approaching.  Comments are due by April 28th, and can be filed electronically through the FCC's Electronic Comment Filing System.  This proceeding contains a number of significant proposals and could possibly re-institute regulations that were lifted from the broadcast industry decades ago.  Formal ascertainment through community advisory boards and possibly other means, requirements for manning main studios during all hours of operation of broadcast stations, imposing quantitative programming requirements, and requiring that main studios be maintained within a station's community of license are just a few of the many proposals the FCC is considering.  See our more detailed summary here.  This proceeding seeks input on these and other potentially burdensome requirements, many of which were eliminated by the Commission long ago, and some of which go beyond what the FCC has ever required before.   Given the potential impact this proceeding could have on broadcast stations, broadcasters are encouraged to file comments in this important rule making proceeding.   When submitting comments, commenters should be sure to reference the docket number for this rule making, MB Docket No. 04-233.

Some members of Congress have already chimed in in this proceeding and submitted comments opposing the Commission's localism proposals.  Over 120 members of Congress signed on to a letter addressed to Chairman Martin urging the Commission to avoid imposing additional regulations on broadcasters and to carefully consider the cost and effect that such regulation would have on the industry.  A copy of the letter is available here.  A summary of the letter posted on Rep. Marsha Blackburn's web site characterizes the localism proceeding as an attempt to "restore a 1970s era regulatory regime for local broadcasters." 

Posted By Brendan Holland In Programming Regulations | Permalink | 0 Comments | Email entry

The FCC Form 355 requiring "enhanced disclosure" by television stations was a frequent topic of discussion at this week's NAB Convention in Las Vegas.  That form will require that television broadcasters report significant, detailed information about their programming, providing very detailed reports of the percentage of programming that they devote to news, public affairs, election programming, local programming, PSAs, independently produced programs and various other program categories, as well as specifics of each program that fits into these categories (see our detailed description of the requirements here).  Obviously, all broadcasters were concerned about how they would deal with the expense and time necessary to complete the forms, and the potential for complaints about the programming that such reports will generate.  At legal sessions by the American Bar Association Forum on Communications Law and the Federal Communications Bar Association, held in connection with the NAB Convention, it became very clear to me that the obligations imposed by these new rules are obligations adopted for absolutely no reason, as the Commission has not adopted any rules mandating specific amounts of the types of programming reported on the form.  In fact, one of the Commissioner's legal assistants confirmed that, unless and until the FCC adopts such specific programming requirements, the Commission's staff will not need to spend any time processing these forms.  Thus, if the form goes into effect, broadcasters will be forced to keep these records, and expend significant amounts of staff time and station resources necessary to complete the forms, for essentially no purpose.

Of course, public interest advocates will argue that the forms will allow the Commission to assess the station's operation in the public interest, and will allow the public to complain about failures of stations to serve local needs.  But, as in a recent license renewal case we wrote about here, the Commission rejected a Petition to Deny against a station based on its alleged failure to do much local public affairs programming as, without specific quantitative program requirements, the Commission cannot punish a station for not doing specific amounts of particular programming. If the Commission adheres to this precedent, it will not be able to fine stations for the information that they put on the Form 355, but only for not filing it or not completing it accurately.  Thus, unless the Commission adopts specific programming requirements, the form will be nothing more than a paperwork trap for the unwary or overburdened broadcaster.  And, as is usually the case with such obligations, the burden will fall hardest on the small broadcaster who does not the staff and resources to devote to otherwise unnecessary paperwork.

Posted By David Oxenford In Programming Regulations , Public Interest Obligations/Localism , Television | Permalink | 2 Comments | Email entry

Annual EEO Public File Report Deadline - April 1

Affected States:  Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas

By April 1, 2008, radio and television Station Employment Units (SEU) in the states listed above must: (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file of each station comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website. The Annual EEO Public File Report summarizes the station's or the SEU's EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  The states with the April 1 filing deadline are: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas.

In addition to preparing the Annual EEO Public File Report by April 1, larger radio stations in Indiana, Kentucky, and Tennessee must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report. Please note, only radio station SEUs located in these three jurisdictions that have 11 or more full-time employees are required to file an FCC Form 397 by April 1, 2008.

Biennial Ownership Report Deadline - April 1

Affected States:   Radio: Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee; Television:  Texas 

By April 1, 2008, radio stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee, and television stations in Texas must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC. Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E. Ownership Reports are filed every other year, reporting on changes in the licensee’s ownership and updating the information requested by the form.

The timing for the filing of the Biennial Ownership Report and the preparation of the Annual EEO Public File Report is based on the anniversary of the filing of the station's license renewal. In turn, the renewal cycles are organized by state and type of service, and are staggered based on the FCC's prearranged schedule. Periodically, we will remind groups of stations as to their upcoming deadlines, and stations should be vigilant to make these required filings. 

Copies of our complete reminder memos containing additional information on each of these filing requirements can be found here (Ownership) and here (EEO).

Posted By Brendan Holland In EEO Compliance , General FCC , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

The Commission's Localism Report and related Notice of Proposed Rule Making seeking comment on a slate of proposed new rules has been published in the Federal Register.  Accordingly, Comments in this rule making proceeding must be filed with the Commission by March 14 and Reply Comments must be filed by April 14.  This is a very short period of time in which to comment on a number of significant proposals that are poised to return the broadcast industry to the regulatory structure of the 1980s.  As we reported earlier, the Commission proposes to re-regulate broadcast stations, and the NPRM suggests a number of substantive rule changes, such as effectively re-instating ascertainments, eliminating the unmanned operation of broadcast stations, imposing quantitative programming requirements, and requiring that main studios be maintained within a station's community of license.  This NPRM proposes a number of potentially burdensome requirements, many of which were eliminated by the Commission long ago, and many of which go beyond what the FCC has ever required.

Given the potential impact that the FCC's proposed rules could have on broadcast stations, broadcasters are encouraged to file comments in this important rule making proceeding. 
Comments can be filed with the Commission in paper or electronically through the FCC’s Electronic Comment Filing System.  When submitting comments, commenters should be sure to reference the docket number for this rule making, MB Docket No. 04-233.  

Posted By Brendan Holland In AM Radio , Digital Television , FM Radio , FM Translators and LPFM , General FCC , Programming Regulations , Public Interest Obligations/Localism , Television | Permalink | 0 Comments | Email entry

The FCC today adopted a Report on its Localism proceeding, accessing the evidence that it gathered in its three year long investigation of whether broadcasters were adequately serving the interests of their local communities.  We wrote long ago about some of the specific issues that the FCC was reviewing in this proceeding - everything from the public interest programming of broadcasters to their music selection process to their response to local emergencies.  Among the report's conclusions were findings that not all broadcasters were adequately assessing the needs of their communities or serving the public interest through coverage of local news and other local events.  Because of these perceived weaknesses in broadcaster performance, the FCC adopted a Notice of Proposed Rulemaking, much as we expected in our post here, tentatively concluding that re-regulation of the broadcast industry was necessary, bringing back some form of ascertainment and some specific quantifiable requirements for public interest programming. 

As in the case of the Multiple Ownership order adopted today (summarized here), the full text of the FCC Report and the Notice of Proposed Rulemaking has not been released.  Instead, only a short Public Notice, and the statements of the Commissioners at the meeting, are available to determine what was done.  From these notices, it appears that three tentative conclusions were reached.  They are, as follows:

• More Low Power TV stations should be able to get Class A status, meaning that they are no longer a secondary service that can be "bumped" by a new full power television station or by changes to the facilities of a full-power station
• Each licensee should be required to establish a community advisory board made up of specific groups of community leaders, with whom the station would meet on a regular basis to assess the needs of the community
• The FCC's license renewal standards should contain specific quantitative requirements for public service programming

While these may sound like noble decisions, there are many details and much history that the Commission needs to address before these proposals become final FCC rules.

Posted By David Oxenford In Payola and Sponsorship Identification , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

The FCC today adopted new requirements for television broadcasters to quarterly file a report with the FCC quantifying their service to the public.  The order also requires that stations keep their public file on their website, if they have a website.  Broadcasters will also be required to broadcast twice each day a notice as to how listeners can find their public file.  This order resolves some of the issues raised in a rulemaking proceeding (about which we wrote here) begun over 7 years ago as part of the rules to govern TV's digital transition.  Yet these new rules apply to analog as well as digital television operations.  In fact, the public file rule goes into effect 60 days after the publication of the FCC's order in the Federal Register.  

The new FCC form will replace the Quarterly Issues Programs lists prepared by licensees since the mid-1980s.  The Quarterly Issues lists were originally adopted to replace more detailed reporting requirements which forced broadcasters to collect and file the same types of information that the FCC is now requesting.  While the new forms are not yet released, from the discussion at the FCC meeting, it appears that they will require the following information:

• Details about civic and election coverage provided by the station
• Information about programming from independent producers that is aired by the station
• Information about the number of Public Service announcements (PSAs) aired by the station
• A description of efforts that the station has undertaken to serve its community
• Specifics about emergency information provided by the station
• Information about how emergency and other information is provided to viewers with disabilities
• There was also some discussion that indicated that the reports would require information about how stations ascertain the needs of their community that are addressed in their programs.

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

The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27.  The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling - including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations.  The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business - even though comments on the Commission's proposals on this matter were received just a month ago.

First, the Commission is to release an Order on Low Power FM.  We have written about some of the issues that could be decided previously - including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).

On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators.  We wrote about the proposals - made as part of the Commission's DTV proceedings (though to be applicable to all TV stations), here.  Proposed rules included the standardization of quarterly issues programs lists, making station's public fies available on the Internet, and quantifying other public interest obligations. 

Posted By David Oxenford In EEO Compliance , FM Translators and LPFM , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

In a very unusual, if not unprecedented case, the FCC announced a Public Forum on the license renewal application of WWOR-TV to assess the service provided by that station to the citizens of New Jersey.  While the FCC has in the past held evidentiary hearings on license renewal applications, those hearings were trial-type, adversarial proceedings held on specific issues before administrative law judges - not amorphous public proceedings on general questions about the service provided by the station.  This proceeding seems much more akin to the "localism" hearings that the FCC has been holding around the country (including the most recent held in Washington on Halloween), only in this case it is not conducted to come up with some general policy guidelines, but instead it is to assess whether a broadcast license worth hundreds of millions of dollars should be renewed.  While the revocation of a license for failure to serve the public interest under the license renewal standards that have been in effect for the last 11 years is unprecedented, this process may be one that other stations could face were proposals of certain Congressional and FCC proponents of license renewal reform to get their way.

As we wrote here and here, some have suggested that the FCC's license renewal process should be fundamentally reformed.  There have been suggestions that license renewal, which once occurred every three years for broadcast stations but now comes up but once every eight years, should return to that shorter cycle.  And some have suggested that the license renewal process should have more "teeth" to assess a broadcaster's performance (see, for instance, the statement of Commissioner Copps at the FCC Localism hearing in Portland, Maine in June). These teeth have been suggested to include everything from specific quantitative showings of public interest programming by the broadcaster, to local public hearings to assess the level of that service for some or all broadcast stations.  How the FCC would have the resources to conduct hearings for any meaningful number of broadcast stations is unclear - but the suggestion has been made by various proponents of license renewal reform. 

Posted By David Oxenford In Programming Regulations , Public Interest Obligations/Localism | Permalink | 1 Comments | Email entry

On Monday, the FCC issued a $4,000 fine to a cable operator for the use of a so-called Video News Release, or VNR, in a news segment focusing on consumer issues.   The facts in this case are very similar to the facts in dozens of other inquiries involving broadcast television stations that remain pending before the Commission, and this decision could very well signal the beginning of a number of forfeitures aimed at cracking down on the (until recently) common practice of using video material provided for free by third-parties without providing attribution or a sponsorship identification.  The decision was issued by the Enforcement Bureau and not the full Commission, and goes to lengths to explain that the sponsorship rules apply to cablecasting material aired by cable operators, and that the use of even a free video (i.e. with no consideration promised or paid to the cable operator or broadcaster) can require a sponsorship ID, even if no political or controversial issue is involved. 

In this case, a cable network aired potions of video from a VNR produced on behalf of a product called "Nelson's Rescue Sleep."  No consideration was given or promised to the cable operator, but the VNR was provided to the cable operator for free.  The sponsorship ID rules typically come into play when money, services, or other valuable consideration is given in exchange for airing the particular material.  Normally, the phrase "services or other valuable consideration" does not typically include services or property furnished without charge or at a nominal fee, such as the VNR.  In this case, however, the FCC concluded that the video was furnished in consideration for the product being identified to a degree greater than what was reasonably related to the use of the product or service in the broadcast. The VNR was included in a news segment about non-prescription sleep aids, but the segment did not contain any other sleep-aid products.  And (because it was a VNR for the product itself) the segment dwelled on and discussed at length the underlying product "Nelson's Rescue Sleep." Citing to a 44-year old FCC Public Notice that provided guidance to broadcasters in the early 1960s about the sponsorship ID rules, the FCC found that the use of the VNR in this situation obviated the exception for free material and that a sponsorship identification should have been included.   A copy of the FCC's decision is available here. 

The FCC's forfeiture order was adopted exactly one year to the day that the material was aired by the cable operator, and thus, seems to have been issued now so as to avoid the possibility that the statute of limitations prevent the Commission from issuing a fine.  Although this is the first such VNR fine against either a cable operator or television broadcaster, it seems likely that more such decisions will be forthcoming.  Indeed, Commissioner Adelstein, who has championed this novel interpretation of the sponsorship identification rules, was quick to issue a statement applauding the Enforcement Bureau for its decision.  Given that the decision seems to cross into the territory of a cable operator's or broadcaster's editorial and journalistic discretion protected by the First Amendment, one can imagine that the cable operator (and any broadcasters fined in the future) will attack vigorously the FCC's interpretation of its sponsorship ID rules with respect to VNRs.

UPDATE:  On Thursday (September 27, 2007), the Commission issued a further decision involving the same cable operator, fining the operator an additional $16,000 for four more VNR incidents similar to the one discussed above.  In each instance, the cable operator included video that was received for free in a program aired on the system without attribution or a sponsorship identification.  The Commission concluded that the free video clips contained extensive images, discussion, and mention of the particular product, which triggered the sponsorship ID rules.  A copy of that decision is available here. 

Posted By Brendan Holland In Payola and Sponsorship Identification , Programming Regulations , Television | Permalink | 0 Comments | Email entry

At last Thursday's Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate's positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television - after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We've already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit's decision throwing out the FCC's fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.

Posted By David Oxenford In Advertising Issues , Children's Programming and Advertising , Indecency , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | 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 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

If you are a broadcaster, you know that it's not going to be a good day when you walk into a hearing on the possible extension of the performance royalty in sound recordings to over-the-air broadcasters and see buttons saying "I Support a Performance Right NOW" on the lapels of every other witness on the panel - including the Register of Copyrights, Marybeth Peters.  But that was the scene in Washington, as the House Judiciary Committee's subcommittee on Courts, the Internet and Intellectual Property held a hearing as to whether the right to collect a royalty for the public performance of a sound recording (the actual song as sung by a particular artist, as opposed to the underlying musical composition) should be paid by broadcasters.  Broadcasters in the United States have paid only a royalty on the public performance of the composition (to ASCAP, BMI and SESAC), and have never paid a royalty for the public performance of the sound recording.  The lack of a sound recording royalty has always been justified in the past on the theory that the artists and copyright holders in the sound recording benefit more than composers through the airplay of the sound recording, as they receive the bulk of the proceeds from CD sales, and the performers benefit from the promotion of live performances.  As they benefit from the promotion provided by the airplay of the song, there is no need for any sort of performance royalty.  As the music and radio businesses have both thrived in the United States - more so than anywhere else in the world - it seemed that this arrangement was mutually beneficial.

But, in recent years, the consensus over this mutually beneficial arrangement seems to have broken down.  Starting in 1995, a performance right in sound recordings has been imposed on digital services, including the royalty on Internet radio which has recently been so controversial (and about which we have written so much, here).  And, with the recent downturn in the record companies' business, additional sources of revenue are being sought - thus the RIAA and SoundExchange, the collective that receives sound recording performance royalties, have started a Congressional push to require the collection of royalties from over-the-air radio.  And that push was reflected in the hearing held on Tuesday before a House Committee that seemed clearly to favor the imposition of this royalty on broadcasters.

Posted By David Oxenford In Broadcast Performance Royalty , Intellectual Property , Internet Radio , On Line Media , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

In the broadcast world, if you stick around long enough, what was once big and then faded away will no doubt come around once again.  Whether its the resurrection of prime time games shows that faded in the 50s to become big again today, or the regulatory landscape - it all comes around again.  In comments made to an oversight hearing of the US House of Representatives yesterday, Chairman Martin stated that there is an item circulating through the FCC proposing to require that broadcasters file in their license renewal applications more detailed information about the types of public interest programming they provide.   Until the mid-1980s, broadcasters had to specify the percentage of their programming that was comprised of news, public affairs and "other" public interest programming, as well as the number of public service announcements that the station broadcast.  These specific requirements disappeared in the "deregulation" of the 1980s, but from the statements made yesterday, they may now be making a return if Chairman Martin and the Democratic Commissioners can agree on a set of rules to be imposed on broadcasters.

We've written about various proposals to require specific, quantifiable public interest obligations of broadcasters in the context of the recent digital radio order.  We also wrote about the long-outstanding proceeding to quantify public interest obligations of television broadcasters that was mentioned in a recent decision denying a license renewal challenge (and implying that a decision was coming soon).  Whether the Chairman's mention at yesterday's hearing of the upcoming "item" was a reference to these two proceedings, or to some entirely new effort to re-regulate broadcasters, remains to be seen.  But the "post-card" renewal that was adopted in the 1980s, which has continued to grow in size and complexity over the intervening years, may well grow significantly in the near future.

Posted By David Oxenford In General FCC , Programming Regulations , Public Interest Obligations/Localism | Permalink | 2 Comments | Email entry

The Senate Committee on Commerce, Science and Transportation today held its hearing on the Impact of Media Violence on Children.  Senator Rockefeller opened the hearings with a statement addressing what he sees as an unprecedented level of violent content in the media and citing studies that show that exposure to such violence is detrimental to children.  Rather than giving parents more tools to reduce or restrict their children's access to violent programming, Senator Rockefeller asserted that parents want violent and sexual content off the air entirely.  In no uncertain words, the Senator blamed the entertainment industry in general and television in particular for failing to put the interests of children ahead of their own profits.  Faced with the industry's failure, Senator Rockefeller plans to reintroduce his bill from last year proposing to define and restrict violent programming in a manner similar to the way in which indecency is regulated on broadcast television.  While other senators shared Senator Rockefeller's concerns about sex and violence in the media, many expressed concern over the constitutional issues involved in trying to regulate violent programming on broadcast television. 

Although FCC Chairman Martin was unable to attend today's hearing, the Committee heard testimony from a panel that included Tim Winter of the Parents television Council, Peter Liguori of Fox Broadcasting, Dr. Dale Kunkel from the University of Arizona, Jeff J. McIntyre of the American Psychological Association, and Laurence H. Tribe of Harvard Law School.  The panel members' statements, as well as the statements prepared by several members of the Committee are available here.  As should be clear from the composition of the panel, there is much debate about whether exposure to violent images creates violent children, whether violent programming can be regulated by the government consistent with the constitution, and whether the entertainment industry is liable for the perceived debasing of American culture.  Clearly, this hearing was not going to resolve those weighty issues in the span of a morning, however, it is obvious that the debate about violence on television will be around for another session of congress, and may very well become an issue in the upcoming election year.  

Posted By Brendan Holland In Programming Regulations | Permalink | 0 Comments | Email entry

As we reported earlier, even though it has been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence, the FCC only recently adopted rules to officially implement the increased fines.  The rule to implement the statutory mandate was published in the Federal Register today, setting July 20th as the effective date for the new higher fines.   A copy of the Federal Register publice notice is available here (just below the list of millet and soybeans).  Once the increased fines become effective, the Commission's stick for discouraging speech that it might deem to be indecent will be a whole lot bigger.  It will be interesting to see if the Commission elects to impose a substantial forfeiture using the larger fines while various aspects of its indecency regime remain under review. 

Posted By Brendan Holland In FCC Fines , Indecency , Programming Regulations | Permalink | 0 Comments | Email entry

The FCC, after taking two years off, is looking to finish their field hearings on Localism by scheduling a hearing in Portland, Maine on June 29.  This hearing is not one of the six hearings to discuss possible new multiple ownership rules, but instead a continuation of the hearings started by Chairman Powell after public controversy over the 2003 multiple ownership rules.  In an ironic twist of fate, this public notice was released on the Friday before the National Association of Broadcasters Educational Foundation hosts their Service to America Awards Dinner to honor broadcasters and the public service commitment that they have to their communities.  Thus, while the FCC is looking in the hinterlands for evidence of the responsiveness of the broadcast industry to the needs of their listeners, some of the best evidence of that service was on display some 12 blocks from the FCC's headquarters.

The Localism hearings were part of a larger proceeding begun in response to the controversy after the 2003 multiple ownership rules.  When the Democratic Commissioners, Congressional legislators from both parties, and a variety of citizen's groups from across the political spectrum complained about how the public's input was not sought before the rules were adopted, the FCC tried to respond to some of those complaints by putting out a Notice of Inquiry on Localism.  The proceeding was to assess how well broadcasters were serving their communities, and the Notice asked for public comment on a grab bag of issues including the following:

• whether a broadcaster's public interest obligations should be quantified (bringing back obligations abolished in the 1980s that required specific amounts of the programming of broadcast stations to be devoted to news and public affairs programming), 
• should broadcasters be required to play specific amounts of local music,
• is payola a major issue,
• whether more programming should be devoted to political campaigns, 
• whether the voices of minorities were being heard on the airwaves.
• if the FCC should authorize more LPFM stations and take other steps to make airtime available to new entrants

Posted By David Oxenford In General FCC , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

We wrote yesterday about the Second Circuit Court of Appeals ruling throwing out two FCC indecency fines.  Further details on the legal reasoning in that decision are given in our firm's advisory published today. The decision also provoked heated reactions from two of the FCC Commissioners.  Commissioner Copps issued a statement warning broadcasters not to engage in gratuitous sex and violence on television.  Chairman Martin's statement was even more aggressive - using the "F-word" and the "S-word" freely - without resorting to the euphemisms that we employ here to avoid triggering spam blockers - for the shock value to emphasize how he believed that a liberal court overlooked the what he thought was a common-sense FCC decision with which most people would agree.

 It seems unlikely that there were many broadcasters waiting for this decision to give them the green light to run out and start gratuitously airing sex and violence.  Look at basic cable.  Years ago, court rulings held that indecency rules did not apply to cable television.  Yet, as I'm writing this, the Daily Show on Comedy Central is airing, and all the explicatives that are of such concern to the Commission are edited out of the program - and this is for a program that is not only on cable, but also is airing at 11 PM, in the safe harbor where indecent programming can air even on broadcast television.  And who has seen a rush of indecent programming on broadcast television in those safe harbor hours?  The Court decision only reached the common sense decision that the passing use of an explicative should not jeopardize an FCC license.  No matter what the Commissioners statements may say, the ruling was not one that opens the door to filth flooding the airwaves, but instead it was only one that demanded that the FCC apply logic and consistency in line with constitutional requirements when making its rulings. 

Posted By David Oxenford In Indecency , Programming Regulations | Permalink | 0 Comments | Email entry

Yesterday’s New York Times featured an article on its Opinion/Editorial page written by FCC Commissioner Michael Copps, suggesting that enforcement of the public interest obligations of broadcaster become more stringent. Commissioner Copps suggested that broadcasters needed to have their responsiveness to the needs of their community scrutinized more closely, and more often. Among other actions, the Commissioner suggested that license renewal period for broadcasters be shortened from the current eight year term, to once every three years – as well as a host of more stringent and specific programming obligations. Coming on the heels of the FCC’s proposal in the Further Notice of Proposed Rulemaking on Digital Radio (see our summary, here) to explore the local service of broadcasters through a checklist public file report quantifying their public interest service, as well as mandating more local program origination and a greater local presence for stations, local service seems to have emerged as a major issue of concern that may be played out in FCC proceedings in this year leading up to the 2008 Presidential election.

The Copps proposal to shorten license renewal terms back to the three years, and to stiffen the renewal process, asks that the FCC return to a system that required broadcasters to spend significant sums of money on administrative matters that could have better gone to broadcast operations. And the sums that used to be spent on license renewal applications had minimal real impact on the public interest.   While from time to time, broadcasters did run into scrutiny at renewal time, the vast majority of broadcasters’ applications were reviewed in a perfunctory manner and renewed – just as they are today. And with the Commission’s depleted resources that are already stretched thin, it seems unlikely that its staff would be able to provide much greater scrutiny to renewal applications that are filed more than twice as often as they are currently – more than doubling the workload of the already overburdened Commission staff.

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

It's been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence.  Even though the legislation was effective on June 15, 2006, the higher fines have not yet gone into effect as the FCC had never adopted rules to officially implement them - until today.  Today, the FCC issued an order adopting a rule to implement the statutory mandate - and the new higher fines will go into effect 30 days after this order is published in the Federal Register, which will presumably be quite soon.

There was no explanation for the Commission's delay in adopting the new rule.  As the change was mandated by statute, the adoption of the new rule did not require public notice and comment.  All the Commission needed to do was to put out the Order that was released today.  Perhaps the Commission was concerned about the pending Court cases to resolve whether their enforcement of the rules is constitutional (see our comment here).  In fact, in opposing the expedited consideration of one of the appeals of a Commission indecency fine, the Commission specifically made the point that there was no need to for prompt consideration as the chilling effect of the Commission policies was limited as the new fines had not yet gone in to effect.  But, for whatever reason, the Commission has finally decided to act, and the new fines will soon be effective.  Now we just need to watch for the Court decisions to see if the enforcement of those fines will be permitted.

Posted By David Oxenford In FCC Fines , Indecency , Programming Regulations | 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

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

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

Last week, House Commerce and Energy Committee Chairman John Dingell reportedly stated that he favored the return of the Fairness Doctrine, and couldn't see why broadcasters would be opposed.  We've suggested reasons, here and here.  But the reports are that Congressman Dingell may try to move legislation to accomplish the return of the Doctrine later this year.

But, in good news for broadcasters, Congressman Dingell said that he didn't foresee any action on violence regulation this year - absent some triggering event - presumably something like the Janet Jackson incident which galvanized Congress into action to raise indecency penalties.  Perhaps one less concern for broadcasters, but the Fairness Doctrine appears to be a real concern to watch.

Posted By David Oxenford In Political Broadcasting , Programming Regulations | Permalink | 1 Comments | Email entry

The front page of the Sunday New York Times featured a story titled "Shock Radio Shrugs at Imus's Fall And Roughs Up the Usual Victims."  The story reports on radio station talk programming and how the Times' reporters found numerous instances of what they refer to as "coarse, sexually explicit banter" and "meanness."  The Times reports that these programs could lead the announcers and the stations owners into dangerous territory - either from FCC fines or through advertiser cancellations.  The Times also correctly indicates that the FCC usually does not initiate actions against such programs based on its own monitoring, but instead based on listener complaints - almost an open invitation for such complaints to be filed based on the paper's report.  With reports such as this hitting the popular press, after being brought to the forefront of public attention by the Imus affair, and earlier this year by the Sacramento contest gone wrong for the the Wii (here), can calls for regulation be far behind?

The Times own report asks the question as to whether the FCC or Congress will step up regulation in light of the Imus affair.  Interestingly, it avoids the questions raised by its own reports as to where lines would be drawn in any regulations.  For instance, in the story, the Times identified some programming that might cause concern under FCC indecency guidelines depending on the context in which the cited material was used, the report also cites several instances which assuredly do not fit within any FCC prohibitions.  In fact, some of the samples cited by the article do not seem much more "coarse" than what you might find on some Sunday morning or cable television news-talk programming.  For instance, the Times cites, seemingly as an example of "crude remarks," statements made on the Mancow syndicated radio talk programming, where Mancow allegedly asserted that radical Muslims "would not stop until they had flattened American religion like a steamroller" and then went on to say that he didn't want his children to be killed or "brainwashed" into Islamic beliefs.  While I'm sure that the Mancow language was not the same as that which might be used on a political talk program - aren't similar expressions about the goals of radical Islam often aired on such news talk programs - often by members of the political establishment?  Would the Times want to regulate the discussion of ideas based on how or where they were expressed?  In any content regulation, lines are hard to draw.

Posted By David Oxenford In Indecency , Programming Regulations | Permalink | 0 Comments | Email entry

In a letter to FCC Chairman Martin and Commissioners Copps and Tate, Congressman Edward Markey, head of the House of Representatives Subcommittee on Telecommunications and the Internet, has asked that the FCC take strong steps to restrict the advertising of unhealthy food in children's television programs.  While applauding voluntary efforts promised by some broadcasters to include in their children's programing more Public Service Announcements (PSAs) for healthy eating, Congressman Markey urged the FCC to do more by cutting in half to 6 minutes per hour the amount of permissible advertising in children's programming , and by finding that a station had not met its obligations to broadcast educational and informational programming directed to children if the station aired ads for unhealthy foods during a program which would otherwise qualify as a toward meeting the station's obligations.

The letter from Congressman Markey, while citing efforts in other countries to enforce similar regulations, does not address basic issues with each of his proposals.  First, if sponsorship of children's programming is cut in half, won't that also cut the incentive of broadcasters to air such programs?  Cutting sponsorship to the bone would seem to guarantee that broadcasters will do the absolute minimum amount of children's programming required, so that they can air programs where there are no advertising restrictions.

These requirements would also seem to make broadcasters into the food police.  Broadcasters will have to educate themselves as to the nutritional qualities of various food products to make sure that nothing impermissible gets on the air.  And where will lines be drawn?  Could a station safely advertise a fast food store if the ads featured only the salads sold by the store - even where that store might also sell not so healthy alternatives?  If definitions are drawn by numerical limits on contents such as sugar, salt and fat (as suggested by the letter), will these limits necessarily lead to advertising the most healthy foods?  Will broadcasters be forced to substitute for parents in making decisions about what their children will eat?

Posted By David Oxenford In Advertising Issues , Children's Programming and Advertising , Programming Regulations | 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