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We’ve written extensively about copyright issues for audio services, but the big copyright decision that recently made headlines is a TV issue, though one that could have an impact on audio as well. That was the Second Circuit decision in the Aereo case – upholding a lower court decision allowing a company to retransmit over-the-air TV signals to consumers over the Internet – without any royalties to the TV broadcasters or television program producers. The decision looked at the issue of what defines a “public performance” that would require the consent of the copyright owner. The Court found that there is no public performance of television programming where the service is set up so that the programming is streamed to the viewer individually, at their demand, rather than transmitted all at once to multiple consumers – as by a cable system or a  satellite television service. The decision is a controversial one – decided by a 2 to 1 vote with the dissenting judge issuing a strong dissent arguing that the Aereo service was nothing more than a “sham” designed to evade the royalty obligations or copyright permissions that would be necessary if the service were deemed a cable system or other type of multichannel video provider. What does this decision really mean for television stations, and could it have broader implications for the reuse of all sorts of broadcast content on the Internet?

The decision focused on the question of whether the Aereo service “publicly performs” the programming that it sends to its subscribers. Under the Copyright Act, a copyright owner has a bundle of rights which it has the exclusive ability to exploit. This includes the right to copy the copyrighted work, to distribute it, to make a “derivative work” (a work that uses the copyrighted material and changes it in some way - like putting new words to the melody of a copyrighted song), and the right to publicly perform it. The definition of a public performance includes any transmission or retransmission of a performance to multiple individuals at the same time or at different times. This language was added to the Copyright Act at the time of the advent of cable television, to make clear that services like cable, that take an existing performance (like that of a broadcast television station) and then further transmit it to other people (even people who could theoretically pick up the original performance) were themselves making a public performance that needed the consent of the copyright holder or a government-imposed statutory license (which allows the performance as long as the party making the performance pays the copyright holder an amount set by the government). From a cursory look, it would appear that Aereo is retransmitting the signal of the TV station to all of its customers. Why, then, did the Court rule that no public performance was involved?

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Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters' audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters.  This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC's long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

 

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

 

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC's considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year. 

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As we wrote last month, the Commission has asked for public comment on whether an Internet delivered video programming service can qualify under the FCC rules and the Communications Act to be treated as a multichannel video programming distributor (an "MVPD").  While the FCC has in the past determined that an MVPD needs to have facilities associated with its programming service (like a cable or satellite delivered system), it asks if that is indeed required under the definitions in the Act.  If the FCC were to determine that Internet video services were to qualify, all sorts of issues would arise - including whether these video services can get access to cable network programming and even whether they have to observe must carry and retransmission consent obligations of broadcasters.  The potential importance of this issue was the talk of the NAB Convention (see this article in TV NewsCheck) and, because of its potential importance to broadcasters, the NAB requested more time to respond to the request for comments.  The FCC partially granted that request - extending the comment deadline to May 14.  Replies are now due on June 13.

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As technology changes, the definitions in the FCC rules don't always keep up.  In a public notice released last Friday, the FCC asked for public comment on what its definition of an "MVPD" - Multichannel Video Programming Distributor - means for purposes of its program access rules. These rules limit exclusive contracts for certain programming that one would normally think of as network cable programming, in order to make that programming available to competing distribution technologies (see this discussion of the application of these rules).  Traditionally, these rules (set out in Section 76.1000-76.1004 of the FCC's Rules) have been thought to require access to this programming by cable, satellite and other companies with their own distribution facilities (i.e. their own wires or spectrum licenses).  Now, with so much video being delivered over the Internet, companies have begun to offer cable-like services by IP-based delivery mechanisms, and they want access to that programming.  Because of these demands for program access, the FCC has asked for these comments.

The proceeding is summarized more thoroughly in our firms Advisory, available here.  As set out in the advisory, the issues on which the FCC is asking for comment could have broader implications should these IP-based systems be deemed to be MVPDs.  For television broadcasters, such a definitional change could signal the need to reexamine the rules regarding the carriage of local television stations, including whether the must-carry and retransmission consent scheme would have to be grafted onto these Internet-delivered services, a requirement that has thus far been rejected by courts and the FCC.  A reexamination of these definitions, should it occur, could have broad implications.  Comments are due on this matter on April 30, with replies due on May 30. 

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Just a reminder that by October 1, Television stations must once again make their triennial carriage elections.  By that date, TV stations must notify the local cable systems and satellite carriers in their market in writing as to whether the station intends to be carried pursuant to must-carry or a retransmission consent agreement for the next three-year term, which runs from Jan. 1, 2012 through Dec. 31, 2014.  Accordingly, before Oct.1, stations must send a written election notice to the cable systems and satellite providers in their market via certified mail, return receipt requested.  The election letter should indicate the station's call letters, channel, community of license, DMA assignment, and contact information, in addition to answering the basic question of whether the station would like to elect carriage pursuant to must-carry or else negotiate a retransmission consent agreement.  In addition, those stations electing carriage pursuant to must-carry should also indicate the channel on which they wish to be carried (i.e., the over the air channel, the cable channel on which it has been carried historically, or some other mutually agreeable channel).  And be sure to keep copies of the election letters sent out.  Copies of all the election letters must be maintained in the station’s public inspection files. 

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The FCC just issued a Report to Congress concerning the access of television viewers to in-state television stations.  This report was requested by Congress as part of STELA (the Satellite Television Extension and Localism Act), which extended the compulsory license for direct to home satellite television operators (DISH and DirecTV) - a license which gives them copyright clearances to retransmit all the programming transmitted by the broadcast television stations that they make available as part of their service packages.  Congress also requested a Report from the Copyright Office on the need for the compulsory license - a report also issued this week, which we will write about in another article.  The issue of access to in-state television stations has been a controversial issue, as several Congressmen have sought (and in a few cases actually received) legislative authority for cable providers to carry out-of-market television stations on cable systems serving areas in one state that are part of television markets where the television stations come from a different state.  The report refers to these areas as "orphan counties."  Once legislative authority was granted in one state, many other bills popped up in Congress trying for the same relief in their state - causing concern that the existing television markets (or Designated Market Areas or "DMAs", designated by the Nielsen Company) might be undermined.  To see what impact such changes would have, Congress requested this report from the FCC.

The report for the most part does not make recommendations, but instead simply provides information about the service provided to US television viewers, the potential options for bringing an in-state service to all viewers, and the issues that such proposals would raise. Perhaps the most interesting fact revealed by the report is that 99.98% of all US television households already have access to an in-state television station, either over-the-air or through a Multichannel Video Programming Distributor (e.g. cable or satellite TV system), so this is a very isolated issue.  However,when the FCC sought comments on the issues discussed in the report, a number of individuals in particular DMAs responded about situations where they could not get access to in-state television stations and asked that something be done.  The report assesses the implications of any action that could be taken.

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In December, the Commercial Advertisement Loudness Mitigation (“CALM”) Act was adopted by Congress and signed by the President, addressing consumer complaints about television commercials that seem louder than the program content that they accompanied. As we wrote in our summary of the Act when it was adopted, Congress has long received many complaints about loud commercials and decided to act, even though many industry groups were concerned about the ability to design an effective system to deal with the contrasts that sometimes exist between the quiet dialogue that might precede a commercial break and the commercial advertisement itself. Nevertheless, Congress adopted the CALM Act, and instructed the FCC to adopt implementing rules within a year. This past week, the FCC released its Notice of Proposed Rulemaking, looking to adopt rules to implement the statute for over-the-air television broadcast stations, cable systems, satellite, and other multichannel video programming providers. In its NPRM, the FCC asks many questions trying to clarify the details of CALM Act implementation.

The NPRM raises a broad array of implementation issues, ranging from deciding exactly which broadcast stations and which MVPDs are subject to its terms, to the establishment of safe harbors for technical compliance. As discussed in more detail below, the Commission also asks whether stations and systems can shift the burden for compliance with these rules to program suppliers, such as broadcast and cable networks, and whether contractual means of guaranteeing compliance (such as indemnification provisions in contracts between networks and affiliates) are sufficient to ensure compliance by these program providers. Questions about how MVPDs deal with retransmission of broadcast programs, and who is responsible for noncompliant broadcast programming, are also asked. Finally, the FCC suggests processes for consumer complaints and the grant of waivers to stations and systems that cannot quickly comply with the new rules.

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The Commission's recent Notice of Proposed Rule Making exploring possible changes to the television retransmission consent rules has now been published in the Federal Register setting the date for Comments as May 27th, with Reply Comments due by June 27.  As we wrote about recently (here), the FCC has commenced a rule making to consider revising its rules governing the interaction and negotiations between cable operators and broadcasters regarding carriage of local broadcast television stations.  Among other things, the NPRM seeks input on strengthening the good faith negotiation rules, changes to the notice requirements to require advance notice to consumers of carriage changes, and input on the potential benefits and harms of eliminating the Commission's network non-duplication and syndicated exclusivity rules.  Again, interested parties have until May 27th to file comments with the Commission either in paper or through the FCC's Electronic Comment Filing System.  Reply Comments will be due by June 27th. 

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Among the many items adopted by the Commission at last week's open meeting was a Notice of Proposed Rule Making (NPRM) regarding retransmission consent agreements and the carriage of broadcast television stations by cable and satellite providers.  Retransmission consent has been a hot topic of late both in Washington and in the national press.  During the past year, a few carriage negotiations between broadcast television stations and cable or satellite operators have resulted in interruptions - or threats of interruptions - in the carriage of local stations.  As a result, both Congress and the public have paid increasing attention to retransmission consent negotiations, and the Commission's NPRM is a effort to review some aspects of its rules governing the relationship between local broadcast stations and the cable and satellite providers that retransmit their signals.  A copy of the NPRM is available here. 

The NPRM is the outgrowth of a petition for rule making filed in March 2010 by cable and satellite providers, along with several public interest groups.  These groups jointly petitioned the FCC seeking significant changes to the current retransmission consent process.  Perhaps the most notably aspect of last week's NPRM is not the changes the FCC proposes, but rather the changes it refrains from pursuing.  The Commission states in the NPRM that it does not believe that it has the authority to adopt either interim carriage mechanisms - to require the continued carriage of a station without a station owner's consent while negotiations continue - or mandatory binding dispute resolution procedures for retransmission consent negotiations, both of which were proposed by the cable and satellite providers in their petition for rule making.  In both cases, the Commission found that it lacked the statutory authority to pursue the rule changes proposed by the petitioners. 

While it proposes to refrain from action on those two elements of the petition for rule making, the Commission does propose to review several aspects of its rules in an effort to, in its words, "protect the public from, and decrease the frequency of, retransmission consent negotiation impasses within our existing statutory authority."   To that end, the NPRM seeks input on strengthening the good faith negotiation rules, including whether it would be  per se violation of the good faith negotiation rules for a station to give a network with which it is affiliated the right to negotiate for carriage, or for a station to grant another station or station group the right to negotiate for carriage, such as when a station is party to a local marketing agreement (LMA) or joint sales agreement (JSA).  In addition, the NPRM proposes changes to the notice requirements of its carriage rules to require advance notice to consumers if there is the possibility that a station will be dropped from a providers' programming line up.  This advance notice would allow consumers to make alternative plans if negotiations ultimately fail and a station's signal is deleted from the lineup.

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After a series of FCC meetings where the only mention of broadcasters was in connection with taking TV spectrum for wireless broadband, the tentative agenda for the next FCC meeting, to be held on March 3, 2011, is full of broadcast issues - issues that could have broadcasters wishing that they were ignored once more.  The biggest issue is the initiation of a proceeding to re-examine the retransmission consent process by which television broadcasters negotiate with cable and satellite companies for payment for the carriage of their signals.  But also on the agenda are proceedings to look at rural radio services and whether the Commission should limit the ability of broadcasters to move stations from rural to urban areas, and the initiation of a proceeding to require that television programmers provide audio descriptions of the action taking place on the video portion of their programs to aid those who are visually impaired.

The retransmission consent proceeding is one which arises after several well-publicized cases where television stations and multichannel video program distributors (like cable and satellite television providers) have had disputes about the amount to be paid to the television broadcaster for the carriage of their signal by the MVPD.  In a few cases, this has resulted in the television station being pulled from the MVPD for some period of time until the dispute can be resolved.  Some MVPDs have argued that there should be more oversight over the process by which television stations can force the MVPD to pull the station's signal until the retransmission negotiation is completed.  MVPDs argue that viewers, who can get the signal over the air as it is made available by the TV station for free, should not be held hostage to the negotiations and should not suffer when the station is pulled from the MVPD to further the TV station's negotiation posture.  Broadcasters, on the other hand, argue that the system is working, that the number of stations who have been pulled from an MVPD is few, and that the MVPD should pay for the valuable television signal, just as it pays for other programming that it carries from cable networks.  The FCC is expected to ask whether some reform of the process, and perhaps some government oversight or mandatory mediation, should be required.

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The FCC's auction of new VHF TV channels in New Jersey and Delaware (about which we have written many times including here) has resulted in only three qualified bidders.  Despite this lack of interest in these VHF channels, the FCC seems to be looking at VHF as a way to facilitate its announced plans for the clearing of significant portions of the television spectrum for wireless broadband use.  The Commission this week set the comment date - March 18, 2011 - on ways to overcome the issues that have been posed to TV stations that have remained in VHF channels after the digital transition.  In the same proceeding, the FCC also seeks comments on allowing TV stations to share the same 6 MHz channel, with both stations retaining their cable and satellite must-carry rights.  That same proceeding implies that we may well have seen the last new over-the-air television stations.  This crucial proceeding on the future of the television band requires careful attention by all parties who may be affected by the many proposals contained in this relatively compact Notice of Proposed Rulemaking. 

The first part of the FCC's proposal (about which we previously wrote here), is to look at ways to get some of the television stations to give up their current channel to allow the FCC to use it for broadband, and having that station share another station's channel to continue to provide its program service on what is the equivalent of a digital subchannel.  The proposal to encourage multiple TV stations to share the same 6 MHz channel raises many issues.  First, the FCC recognizes that the proposal may result in some television stations giving up their ability to broadcast in High Definition (one of the principal reasons for the initial transition to digital), but suggests that stations sharing the same channel could work out "dynamic arrangements" to allow sharing the spectrum flexibly, increasing the portion digital bandwidth allocated to one station when it has programming that would benefit from higher definition, while switching some of the bandwidth allocation to the other station at other times. 

While the Commission assumes that each station will continue to exist as an independent station even when sharing a channel with another station, many of its questions in this proceeding seem to signal uncertainty about this conclusion.  Issues on which the Commission seeks comment include:

• What effect will channel sharing have on the deployment of HD programming and mobile television?  The Commission does not ask about 3-D television, which some broadcasters have begun to experiment with, and might be worth a comment if there are those who expect that to be part of the television future that could be affected by channel sharing arrangements.
• In channel sharing, would each station be able to maintain a Standard Definition signal at all times?
• The Commission assumes that each station sharing a single channel (and thus a single transmission facility) would retain a separate license, and be individually responsible for FCC-rule compliance (e.g. EAS, indecency, children's television, political broadcasting, etc).  How would responsibility over the technical compliance be apportioned?
• Should commercial and non-commercial stations be allowed to share the same channel?  Could commercial stations share channels that have, to this point, been reserved for noncommercial educational uses?
• Will there be a loss in service to the public from such combinations?  Will there be television "white" and "gray" areas created, i.e. areas where there will be no over-the-air television service or only a single service?
• Should cable and satellite service be included when evaluating questions of loss of service?
• What impact should channel sharing have on other FCC rules, like the media ownership rules?

Perhaps the biggest issue with channel sharing is the cable and satellite carriage issue, which raised a number of issues for the Commission.  The issues, summarized below, also demonstrate the Commission's tentativeness in its conclusion that two stations sharing the same channel are really independent stations.

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Yesterday, the FCC released four different items to implement the changes enacted by Congress in the Satellite Television Extension and Localism Act, better known as STELA. With one item addressing significantly viewed out-of-market stations, two items regarding signal prediction and measurements for the reception of DTV signals, and a Public Notice requesting comments and data for a report to Congress, the FCC has wrapped up several open issues regarding STELA. As we have written about previously, here and here (among others), in addition to extending the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers unable to receive a signal from their local network affiliate, STELA raised a few additional issues that the FCC needed to address through various rule makings.  With yesterday's flurry of activity, the FCC has now addressed those issues.

With the first item, the Commission modified the significantly viewed rules that allow for the importation of distant signals in certain circumstances.  The item clarifies that a satellite subscriber need only receive the local-into-local package as a precondition for that subscriber to receive a significantly viewed station, they don't have to receive the specific local (i.e., in-market) affiliate of the same network as a precondition to receive a distant station affiliated with the same network.  The item further clarifies that STELA no longer requires that equivalent bandwidth be dedicated to in-market and significantly viewed stations, so much as there is an HD format requirement.  Accordingly, subscribers can only receive a significantly viewed HD signal, the satellite carrier must carry the HD signal of the local station affiliated with the same network.  In reaching its decision, the Commission was cognizant of the tension between the protection of localism and Congress's intention of achieving closer parity between the rules for satellite TV providers and cable TV providers, and it worked to reach a balance between those two sometimes competing goals.  A copy of the Order is available here.

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The FCC’s Media Bureau today asked for public comment on the Petition recently filed by a number of multichannel video providers - including seven large cable companies, both DBS companies, and Verizon – along with the American Cable Association and several public interest and trade organizations. The Petition seeks changes in the rules governing the retransmission consent process, including potentially requiring arbitration of disputes and limiting the ability of television stations to withhold their signals while the retransmission consent negotiation process is proceeding. Comments in this proceeding are due on April 19 and replies on May 4.

This Petition was prompted in part by several recent high profile retransmission consent negotiations, where television stations threatened to pull their signals from cable systems if their requests for compensation were not met. While television companies argue that being able to pull their signals is a necessary bargaining chip in the negotiation process, petitioners submit that the changed video marketplace makes this option unreasonable, as it can harm both the video provider and the local viewers who are deprived of the station’s signal while negotiations are ongoing.

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Only a day after asking over-the-air television broadcasters to justify their existence and why some or all of their spectrum should not be reclaimed by the FCC to be used for wireless broadband (and giving interested parties only until December 21 to not only justify their existence, but also to come up with technical means by which the spectrum could be more efficiently used, business plans for their future use of the spectrum, and a survey of the competing needs for that spectrum - see more detail below), the FCC issued another request for comments, asking how current video devices could be made more accommodating to Internet video.  These comments, also due on December 21, seemingly bring consumer electronics manufacturers and multi-channel video providers into the FCC's rapidly-expanding evaluation of the video industry and its future.  As the comments filed in connection with these two requests will no doubt lead to proposals to be included in the FCC's February report to Congress on strategies for broadband deployment, these quickly prepared filings could help determine the future of the video industry for the foreseeable future.

The new proceeding, looking for a "plug and play" model of consumer video devices that can access conventional television delivery systems and the Internet, starts with the statement that Internet video is "tremendously popular" and a prediction that, as it expands, new applications for such video will be found.  The Commission says that it sees Internet video as one way of spurring broadband adoption.  How to best promote the plug and play model for consumer video devices that can access the Internet is the crux of the comments that the FCC seeks.  The Commission first asks whether there are currently video devices that allow televisions to view not only the programming provided by multichannel video providers (e.g. cable and satellite), but also Internet video that may be available through an Internet service provided by that same MVPD, stating that it was not aware of such devices.  Next, the Commission asks what would be necessary to develop such devices, and what rules the Commission could adopt to possibly require capabilities in set top boxes and other devices to provide this universal access to video programming of all sorts.  The third area of inquiry from the Commission asks about standards that could be adopted to make Internet video and video from other sources interact with all other home audio and video equipment, including DVRs, to bring about the "digital living room."  And finally the Commission asks what stands in the way of plug and play devices that will work with all networks by which video is delivered.

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An article from TV NewsCheck last week reported on an approach by an FCC representative to television operators, floating an idea that the FCC would "buy" TV spectrum from existing television station operators, and repurpose that spectrum for wireless users - presumably some sort of wireless broadband.  The funds to buy the spectrum would come from the auction of the frequencies.  Over-the-air TV viewers would perhaps be left with a limited over-the-air service.  Today, another article cites a study filed at the Commission that suggests that the auction of TV spectrum could bring in more than three times the value of what that spectrum is for broadcasting.  Could these developments grow into a ground swell that could signal the end of over-the-air television?  Nicholas Negroponte made the much quoted observation almost 15 years ago, before the Internet was the multi-media service that it is today - that communications devices that were wired will become unwired, and those that were wireless would become wired - the "Negroponte Switch" or the process of "unwiring."  But is this switch inevitable for television, and is it in the industry's best interest?

The theory of unwiring looked at the growing demands of wireless data networks for more and more bandwidth. While voice and data services were, at one time, wired services (the plain old telephone, the fax, even the telegraph), more and more of that information is now being digitally packaged and delivered wirelessly.  At the same time, video programming was delivered through wireless over-the-air television (though no one ever referred to it as "wireless"), but each year is more and more delivered by wired means (by cable companies and what used to be telephone companies).  At this point, estimates are that only a bit more than 10% of television households get their television programming exclusively from over-the-air reception.  Looking at this transition, some have theorized that the progression would continue, and the broadcast services would end up being delivered to fixed locations by wire, while the data services would be delivered wirelessly.

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Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored. 

With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.

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This week, an interesting concept has been advanced in a series of applications filed with the FCC.  Ion Media Networks, the successor to Paxson Television, has proposed to transfer some of its broadcast stations to a new company, Urban Television LLP, to be owned 51% by Robert Johnson, the former owner of BET, and 49% by Ion itself.  But, when we say that they are transferring "some" of its stations, we don't mean that any of its stations are being transferred, but instead only that a piece of its stations are proposed to be transferred.  Ion proposes to continue to own and operate stations in every market where it currently operates, but proposes to sell digital multicast channels to Johnson. Unlike any LMA or other programming agreement, the proposal is to actually take one 6 MHz television channel and break it up so that Ion continues to program one channel with its programming and the Urban Television will program the other channel with its programming, and become the actual license of that portion of the spectrum.  The FCC has accepted the applications and issued a Public Notice, giving parties 30 days to file comments on the proposal. 

It is not unheard of for two licensees to share the same channel - though where it is currently occurs most frequently is in connection with noncommercial broadcasters who share a single radio or TV channel, they divide it by time, so that one licensee operates, say midnight to noon and the other operates from noon to midnight.  Obviously, in these shared-time arrangements, both broadcasters are not operating on the same channel at the same time.  This new proposal, though, does not come out of the blue.  The idea of allowing a broadcaster to sell a digital channel to a different company, has been proposed before, for both Digital Television and Digital HD Radio channels when the original station is multicasting, as a way to increase diversity of ownership.

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The Commission this week released an Order exempting certain small cable systems from the requirement that, after the February 2009 digital transition, for a three year period, cable systems carry both an analog version of a broadcast television station's signal plus the station's high definition signal.  This dual carriage requirement was imposed so that the cable system would ensure that a version of the station's signal was available to all subscribers to the system, and so that those who had high definition sets could receive the television signal without "material degradation" of its signal, as required by FCC rules.  As some small systems either did not have the bandwidth to transmit an HDTV signal or could not meet the costs necessary for such carriage, the Commission decided to grant these systems an exemption.  Specifics of the FCC decision and the exemption, and on the background of this ruling, can be found in Davis Wright Tremaine's Advisory on this order. 

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

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

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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

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

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

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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.

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

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

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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! 

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

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

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

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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.

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this article is no longer available. For more information on this topic, see Details of Post-Transition Must Carry Notice of Proposed Rulemaking Released

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

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

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

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

 

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

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

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

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

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

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

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

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

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This article is no longer available. For more information on this topic, see   Congress and the Commission Look to Make FCC More Responsive and to Take Costs Into Account in Making New Rules - Will It Work? 

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

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

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

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

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

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

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

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

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

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

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

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

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