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When someone "lobbies" the FCC on issues pending in a rulemaking proceeding or other contested case, the Commission requires that there be a certain amount of disclosure of the communications made to Commission decision-making personnel.  The rules governing the communications with the FCC's decision-making personnel in such cases are called the "ex parte" rules.  These rules preclude some communications entirely (e.g. oral communications trying to influence a decision in a contested individual case unless all parties to the case are present, or any presentations in rulemakings in the last week before the FCC meeting at which it will be considered), and allow some communications, but with disclosure to the public (e.g. comments made to FCC Commissioners by parties, written or oral, in rulemaking proceedings).  The FCC has just commenced a new proceeding to look at whether the disclosures that are made after some of the communications with decision makers are detailed enough, and also whether new technologies used by the FCC (like its Blogs for various subjects including the blog dedicated to comments on the Future of the Media Proceeding, about we've written before) make some of the ex parte rules outmoded.

A full summary of the proceeding is available in our Davis Wright Tremaine advisory, here.   Comments are due 45 days after the Notice of Proposed Rulemaking in this proceeding is published in the Federal Register. 

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On February, 18, 2010, David Oxenford conducted a seminar for the Utah Broadcasters Association on legal issues that affect radio and television broadcasters.  First, David summarized the various broadcasting legal and policy issues pending before the FCC and Congress.  David's PowerPoint presentation is available here.  Broadcasters interested in Washington issues that may affect them this year may also want to read our blog post from early January where we presented our legal predictions for 2010.

David then conducted a refresher course on political broadcasting issues that may arise in this election year.  His PowerPoint on political issues for broadcasters can be viewed here.  Broadcasters wanting more information on the FCC's political broadcasting rules and policies should review the Davis Wright Tremaine Political Broadcasting Guide.  A discussion of the issues for broadcasters raised by the recent Citizen's United case is available here.

Finally, David discussed recent developments in enforcement of the FCC's EEO policies.  The PowerPoint used in this session can be seen here .  Our Advisory on EEO rules and policies is available here, with forms and recordkeeping suggestions attached to that memo.  Our most recent EEO Public Inspection File Report advisory, with a model report attached, is available here.  Finally, our description of one of the recent FCC fines for noncompliance with the EEO policies is available here. 

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The FCC has proposed amending its rules governing the Emergency Alert System (EAS) in order to test and improve the effectiveness of the system.  In particular, the Commission has proposed that all EAS participants be required to join in a nationwide test -- to be scheduled by the FCC in consultation with the Federal Emergency Management Agency (FEMA) -- to ensure that the system will function properly to inform the public in the event of a national crisis.  The FCC proposes to implement the national test on a yearly basis and seeks comment on the specific language of the proposed rule.  A copy of the Commission's Notice of Proposed Rule Making (NPRM) was recently published in the Federal Register establishing the deadline for Comments on the proposed rules as March 1, 2010, with Reply Comments due on or before March 30, 2010.

In issuing its NPRM, available here, the Commission acknowledged the shortcomings of the current rules and its belief that a national test -- and the data gathered from such a test -- is critical to ensuring consistency and reliability in a system that has actually never been used to deliver a national Presidential alert.  Under the current system, an EAS message is initiated, which is then passed via specially encoded messages to a broadcast-based transmission network, and then on to broadcast stations, cable operators, and other EAS participants in a daisy-chain distribution to the final end users, i.e., the public who is listening, watching, or reading, on radio, television, cable, or other services.  This daisy-chain structure leaves the system, in the Commission's estimation, vulnerable to a significant failure if the message distribution is severed or delayed at any one point.  By proposing an annual national test, the Commission seeks to test the system in an organized, controlled manner, gather data from the EAS participants, and apply what is learned.  Under the Commission's proposed rule, the annual test would replace one of the required monthly tests and participants would have at least two months advance notice of the nationwide test.  EAS participants would be required to log the test results of the test and provide information on the results to the Commission's Public Safety and Homeland Security Bureau within 30 days of the test.  The Commission seeks input on the proposed rule, including whether once a year is sufficient, and what the costs would be attendant to the testing and reporting.

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The FCC today launched a proceeding on the Future of Media in the digital age and put out a call for comments on a variety of issues.  The goal of the Future of Media project, in the Commission's own words, is to produce a report to provide "a clear, precise assessment of the current media landscape, analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties."  The effort is being spearheaded by Steven Waldman, a former journalist and Internet entrepreneur, who is serving as a senior advisor to FCC Chairman Genachowski, as we wrote earlier.  According to the Public Notice issued today, the FCC's initiative seeks to respond to the rapid technological changes in the media marketplace,  financial turmoil in the traditional media, and questions about the role that traditional media will play in the future.  While the FCC intends to draw from its ongoing proceedings regarding media ownership, universal broadband, children's issues, etc., to gather info for its report, it also intends to draw on studies, comments, workshops and hearings, interviews, and outside research.  

To that end, the Public Notice seeks comment on a wide variety of issues in order to build a record for its final report, which will be issued later this year.  The current state and future of traditional journalism is one of the issues the FCC has raised, but is not the sole focus of the project.  Among the topics the FCC has identified for discussion and comment are:  the state of TV, radio, newspaper, and Internet news and information services; the effectiveness and nature of public interest obligations in a digital era; the role of public media and private sector foundations; and many others.  Not unlike the Broadband project that has consummed the Commission in recent months, by this Future of Media project, the FCC is seeking to tackle many big picture items.  In doing so, it is starting at the very beginning by asking questions as broad as:  "What are the information needs of citizens and communities and are those needs being met?"  In all, today's Public Notice contains 42 detailed questions covering six pages, which inquire about business models and financial trends; the information needs of communities and citizens; commercial media (broadcast TV, Radio, Cable, and Satellite); noncommercial and public media; Internet and mobile platforms and applications; and print media. 

Given the enormous scope of the project, its nascent stage, and the continually evolving nature of the media and technology landscape it is impossible to know what recommendations the Commission might ultimately make.  But any parties interested in informing the Commission's conclusions and future recommendations should consider participating in the proceeding.  The deadline for comments is March 8th, and interested parties can submit comments electronically through ECFS, or via the new Web site established for the project, which the FCC hopes will serve as an arena for public discussion on the future of media and any public policy recommendations.  The Future of Media web site also contains a blog to provide additional information about the project on an ongoing basis. 

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A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.

Please note, this filing date applies only to noncommercial radio and TV stations in the states listed above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, and has revised the commercial Ownership Report – Form 323. Although commercial broadcast stations will file on a unified reporting deadline, by Order released late December 2009, the FCC has suspended indefinitely the filing of biennial Ownership Reports for commercial broadcast stations as we've posted previously. The Commission is taking additional time to address certain issues raised by petitioners and to revise the new form further.  Once the FCC re-releases the form, stations will have 90 days to file the report, so stations should watch this space or the FCC's releases for future news about the return of the Ownership Report for commercial stations. 

Noncommercial stations, on the other hand, continue to follow the previous rules filing biennial Ownership Reports on FCC Form 323-E, which has not been revised. The FCC is conducting a rule making proceeding to change, potentially, some of the ownership reporting rules for noncommercial licensees, but meanwhile, noncommercial broadcast stations continue to follow the existing rules.  Accordingly, as Feb. 1, 2010, marks the two-year anniversary of the filing of a biennial Ownership Report for noncommercial stations in the above-referenced services and states, those stations must now file a biennial Ownership Report to update their ownership information or affirm the information currently on file.  More information about this filing deadline can be found in our recent client advisory, available here.  

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You've arrived here as the result of a broken link. 

The full article regarding the proposed revisions to the Emergency Alert System (EAS) posted on February 2, 2010 can be found here.  

We apologize for the inconvenience, and thank you for reading. 

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Each year poses a new set of regulatory deadlines, and to help you remember all of those deadlines, the Davis Wright Tremaine Broadcast Group has prepared a calendar setting out the dates that broadcasters need to remember in 2010.  The calendar can be found here, and sets out FCC imposed deadlines for, among other things, Ownership Report filings (for noncommercial stations for now, until the status of the Form 323 for commercial stations is resolved), for quarterly issues programs lists, for EEO public file and Mid-Term reports, and for children's TV reports.   The calendar also provides reminders about the dates of SoundExchange filings and payment obligations, and for the political windows during which lowest unit rates apply for the Federal elections to be held in 2010 (for the House of Representatives in all states, and for the Senate in over a third of the states).  Lots of dates to remember - so check out the DWT Broadcasters Calendar.

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Another year is upon us, and it’s time for predictions as to what Washington may have in store for broadcasters in 2010.  Each year, when we look at what might be coming, we are amazed at the number of issues that could affect the industry – often issues that are the same year to year as final decisions are often hard to come by in Washington with the interplay between the FCC and other government agencies, the courts and Congress. This year, as usual, we see a whole list of issues, many of which remain from prior years. But this year is different, as we have had a list topped by issues such as the suggestion that television spectrum be reallotted for wireless uses and the radio performance royalty, that could fundamentally affect the broadcast business.  The new administration at the FCC is only beginning to get down to business, having filling most of the decision-making positions at the Commission.  Thus far, its attention has been focused on broadband, working diligently to complete a report to Congress on plans for implementation of a national broadband plan, a report that is required to be issued in February.  But, from what little we have seen from the new Commission and its employees, there seems to be a willingness to reexamine many of the fundamental tenants of broadcasting.  And Congress is not shy about offering its own opinions on how to make broadcasting "better."  This willingness to reexamine some of the most fundamental tenets of broadcasting should make this a most interesting, and potentially frightening, year. Some of the issues to likely be facing television, radio and the broadcasting industry generally are set out below.

Television Issues.

In the television world, at this time last year, we were discussing the end of the digital television transition, and expressing the concern of broadcasters about the FCC’s White Spaces decision allowing unlicensed wireless devices into the television spectrum. While the White Spaces process still has not been finalized, that concern over the encroachment on the TV spectrum has taken a back seat to a far more fundamental issue of whether to repurpose large chunks of the television spectrum (if not the entire spectrum) for wireless users, while compressing television into an even smaller part of what’s left of the television band – if not migrating it altogether to multichannel providers like cable or satellite, with subscription fees for the poorest citizens being paid for from spectrum auction receipts. This proposal, while floated for years in academic circles, has in the last three months become one that is being legitimately debated in Washington, and one that television broadcasters have to take seriously, no matter how absurd it may seem at first glance. Who would have thought that just six month after the completion of the digital transition, when so much time and effort was expended to make sure that homes that receive free over-the-air television would not be adversely impacted by the digital transition, we could now be talking about abolishing free over-the-air television entirely? This cannot happen overnight, and it is a process sure to be resisted as broadcasters seek to protect their ability to roll out new digital multicast channels and their mobile platforms. But it is a real proposal which, if implemented, could fundamentally change the face of the television industry.  Watch for this debate to continue this year.

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The FCC today issued an Order suspending the upcoming January 11 deadline for the filing of new Form 323 Ownership Reports by all licensees of commercial broadcast stations.  As we have written before, the approval of this form has been a tortured process, and left open many questions about the practicalities of completing the form, as well as in connection with certain policy issues raised by the form.  Many broadcasters were, for instance, concerned about privacy issues with the provision of Social Security Numbers as is necessary to obtain a FCC Registration Number from each attributable principal as required by the new form.  Others were concerned about more practical issues that would require the entry of multiple fields of information, in some cases repeated dozens or even hundreds of times for some multiple station owners.  After receiving many protests about the burden imposed by the new form, and the short time that commercial licensees were given to prepare the report for submission (the form only becoming available earlier this month), the Commission today decided to suspend the filing deadline while it further revised the form to answer the many questions that have arisen.

So the January deadline has been lifted.  When will the re-filing take place?  It is uncertain now, as the Commission seemingly may need to make significant changes to the form to answer the many questions that have been raised (though the Order today addresses only the practical issues, not revisiting the issue of the Social Security Numbers).  The Commission did say, however, that no filing will be required for at least 90 days after the revised form is made available - hopefully giving broadcasters plenty of time to work with any revised form that is adopted to resolve any new issues that may crop up.  But for all of you who were planning on spending your holidays filling out ownership reports - you can now relax and enjoy the season's festivities!

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The new FCC Form 323 Ownership Report is now available in the FCC's electronic filing system.  Thus, after many delays, licensees can prepare and file the form that is due from licensees of commercial broadcast stations by January 11.  The Commission also reminded broadcasters that it will be conducting a Tutorial on the new Form on Wednesday, December 9 at 2 PM Eastern Time which can be accessed through the FCC's website. 

We last wrote here about the FCC's announcement of the impending availability of the form, and the decision to allow broadcasters to obtain temporary FCC Registration Numbers (FRNs) for principals from whom Social Security Numbers cannot be obtained by the January 11 filing deadline.  Thus, with the form in the database, and the Social Security Number issue temporarily resolved, broadcasters need to be preparing these forms and filing them by January 11.  The FCC has promised vigilance in enforcing this requirement - so be ready for the upcoming deadline.

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The new FCC Form 323 Ownership Report is expected to be available in the FCC's CDBS electronic filing database by Wednesday, December 9, according to a Public Notice released by the FCC yesterday - so that commercial broadcasters should have a month to prepare the form in time for the January 11 filing deadline.  As we've written before, the form and filing deadline have been much delayed as the Commission struggled to work out kinks in its electronic filing process.  In the Public Notice issued yesterday, the Commission also announced that stations can file their ownership reports on the new form even if each attributable owner of the company has not yet received an FCC Registration Number (an "FRN"), which requires the provision of a Social Security Number (for individuals) or a Taxpayer ID Number (for business entities).  Seemingly, the FCC has recognized that there has been much consternation among shareholders, officers and directors of broadcast companies about providing their Social Security Numbers to companies in which they have interests to in turn be provided to the FCC so that an FRN can be obtained.  So that licensees can have more time to deal with these issues, the provision for a temporary FRN has been adopted.  The FCC Public Notice also indicates that the FCC will host a workshop on December 9 at 2 PM Eastern time to help the public with issues as to the filing of this report.

The Social Security Number issue has perhaps created the most concern about this new form.  While the allowance for the temporary FRN will take some immediate pressure off broadcasters, these temporary numbers should not be viewed as a permanent reprieve from obtaining FRNs from all attributable owners.  The Commission in the revised Questions and Answers on the Form 323 makes clear, the temporary FRN for those holders of attributable interests in broadcast stations is a temporary measure.  Licensees are cautioned that they should use their best efforts to obtain these numbers (or to have the attributable owners, on their own, register for the FRN).  Even if that cannot be accomplished by the January 11 deadline, the licensee has an obligation to keep trying and to amend its filing when it finally obtains the required information as to the permanent FRN of each person or entity holding an attributable interest in the company .  The FCC seems to leave the door open to enforcement actions if a licensee does not obtain that information in a reasonable (though not defined) period of time.

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The FCC has wasted no time in pressing ahead with the discussion of whether the spectrum currently used by local broadcast television stations is being put to the greatest use and whether it should be "re-purposed" for the so-called broadband effort.  This afternoon, the FCC issued a Public Notice soliciting comments by December 21st regarding the demand for spectrum, the factors the FCC should review when considering the re-purposing of TV spectrum, and potential approaches to increasing spectrum availability and efficiency.  Although the Public Notice asks broad, far-ranging policy questions, the comment date for the "specific data" that the Commission seeks to obtain from interested parties is less than three weeks away, which hardly seems adequate for a proper, informed discussion on an issue of this magnitude.  The specific topics of discussion identified by the Commission and details about how to submit comments can be found in the Commission's Notice. 

Among the issues broadcasters will undoubtedly address (and indeed have already begun to address in other forums) is the fact that the forthcoming spectrum crisis -- which seems to have become a given in certain circles -- has not been well substantiated.  Related to that is the notion that broadcasters already have the ability to lease any "excess" digital television spectrum and use the capacity to provide broadband access, mobile services, or virtually anything else under the sun.  Stations will likely suggest that this mechanism will allow the wireless broadband market to tap this spectrum without further government intervention, if and when the demands of the wireless market require it.  Other issues sure to be of discussion is the value of local broadcast stations, the usefulness of free over-the-air broadcasting, the future of broadcast journalism, and the service stations provide to the public, just to name a few.   It will be challenging, to say the least, for commenters to quantify and address any of these significant questions within just 19 days. 

Having just completed the DTV transition six months ago, it seems that broadcasters have barely been given a chance to operate on their digital spectrum and to explore the options afforded by the transition in terms of high-definition, multicasting, data casting, broadband access, and mobile TV, just to name a few, before having to rush to defend its use, or lack thereof.  The Commission's rush to solicit comments is clearly guided by its need to develop a broadband plan early next year, however, the issues raised by today's Public Notice are among the most significant it has ever attempted to address, certainly with respect to broadcasting and mass media.  It goes without saying, but there is much, much more to be said about these issues, so stay tuned.   And see our earlier blog entries (including here) for further thoughts on the matter. 

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The FCC issued a Public Notice today, extending the date for the filing of the new Form 323 Biennial Ownership Report until January 11, 2010.  As stated in the Notice, the Commission has yet to finish testing the new form in its electronic filing system, so it is not yet ready to be used.  Given the delay (as we wrote on Friday, the Commission had hoped to release the form for use last week), the Commission's Media Bureau decided to extend the filing date.  However, as we discussed in in more detail in our post last week, the substantive issues apparently have not changed.  Commercial broadcast station licensees will still need to have FRN numbers for all of their attributable owners - which can be obtained now as the FCC electronic registration process for the FRN is separate and apart from the Form 323 itself (this is the process that will involve submitting the social security number of all of your attributable owners).  So licensees should start that process now - as these forms will be complicated for many licensees to complete the first time around, and should not be something left to tackle in the first few days of the New Year right before the new due date.  

See last Friday's post for more information, and links to our memo on the new Form and the FCC's Frequently Asked Questions page. 

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Update 11/23/2009 - the Commission has just extended the filing deadline for the Form 323 until January 11, 2010.  See our post here for more details. 

December 15 is that date on which the new FCC Form 323 Ownership Report is to be filed at the FCC - yet the revised form is not yet available in the FCC's CDBS electronic filing database.  What is a broadcaster to do?  The form will require significantly more work to complete than was necessary on prior versions - and it requires more information provided in a different manner than on the old form.  The information on the old form cannot simply be imported into the new form - everything needs to be re-entered.  And information that used to be provided by exhibit in older versions of the form has to be manually entered into separate searchable fields on the new form.  For broadcasters with many principals who have many broadcast interests, the form will take significant time to complete.  All commercial licensees, including LPTV licensees who have never before had to file, must submit the report.  Each attributable owner of each licensee (see our Advisory for a very basic explanation of attributable interests) will also need to have his or her own FCC registration number ("FRN") in order to complete the form - all to be done by December 15.  But will that date potentially change?

While the FCC has issued a series of Questions and Answers about the form (and we have published our own Advisory to prepare for the filing of the form, here), licensees can't start filling out the form yet as the revised for is not yet available electronically.  So the difficulties that will no doubt be discovered as hundreds of broadcasters try to complete the form for the first time have yet to even be fully identified.  Even if the form does become available today, there still will be a significant potential for a very messy filing window.  Confusion will likely occur as every commercial broadcaster must file the form, some for the first time, and many will no doubt have questions about the process.  From the calls that we are getting already, the anxiety and confusion among broadcasters is great.  The prospects of a filing "trainwreck" has been the subject of much talk in Washington among lawyers like us who represent broadcasters.  With much of next week taken up with the Thanksgiving holiday, there simply will not be time for every question to be answered, and for every broadcaster to be ready to file by the December 15 deadline.  This week, one law firm went so far as to formally request that the Commission postpone the filing date.  We would not be surprised if this petition is successful, or if the Commission on its own motion decides to extend the deadline.  But the filing deadline has not yet been delayed, so broadcasters should still plan on meeting the current deadline (and, even if extended, any delay will not be indefinite, so broadcasters still need to be getting ready).  What can a broadcaster do now?

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A jury in Sacramento returned a $16.57 million verdict against Entercom Broadcasting's local subsidiary in the case involving the death of a contestant in a radio station-sponsored contest.  The contest - drinking water and waiting to see which contestant would win the Nintendo Wii by being the last to have to use the bathroom - led to the death of contestant Jennifer Strange by water intoxication.  The station had argued that water intoxication was not a readily known risk of the contest that could have reasonably been anticipated.  The plaintiff's case, to refute this argument, included testimony of warnings from on-air station callers of the risks, and health complaints from contestants themselves, which were apparently ignored or minimized by the station employees who were involved in supervising the contest.  This Blog does not purport to address negligence and personal liability questions, which we will leave to others.  Instead, we'll talk about the lesson to broadcasters and the FCC impact of this case.

First, the decision itself serves as a warning to broadcasters of the need to make employees aware of the ramifications of what goes on at a station.  In a Radio Ink Column today, Publisher Eric Rhoads suggests that broadcasters must be careful in what they do, but also submits that owners and managers cannot take the fun out of radio.  And while I wholeheartedly agree with the last sentiment, the fact that radio can be a fun business is all the more reason that owners and managers need to be careful about what goes on at a station.  While we hate to be the lawyers who ruin all the fun, management does need to make employees aware of the nature of the broadcast medium, and the fact that real people are impacted by whatever is done on the station - whether it be a "joke" on the air which some people find offensive, a dangerous contest, or simply putting off compliance with some FCC rule.  We are in a litigious time, and we have an FCC and a Congress with lots of pending matters that could determine the future of the industry.  While it may seem amazing, a single contest gone wrong or wardrobe malfunction can set the tone for the regulation of an entire industry.  So, while broadcast managers need to avoid being the heavies and playing it so safe that they take the fun out of broadcasting, they do need to impress on employees that they must be aware of the ramifications that their actions can have.  Broadcasting is still a powerful medium, and because of that fact, actions taken by broadcasters can have an impact that is magnified far beyond what might be the case in other media or other industries.  And because it is such a regulated industry, that impact can have huge consequences.

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As we expected, the FCC has set the date for the filing of the newly revised Ownership Reports on the revised FCC Form 323.  All commercial broadcast stations nationwide will need to file by December 15, according to the Public Notice released today.  According to the Public Notice, the Form will be available in the FCC's CDBS electronic filing system by approximately November 16, and licensees can start to file as soon as the form is available.  The new report replaces the biennial ownership reports that had been filed every two years on the anniversary date of the filing of a station's license renewal.  Now, there will be a single nationwide filing deadline of November 1 every other year.  The revised form is intended to give the Commission greater information about broadcast station owners, so that the Commission can better evaluate the status of diversity in broadcast ownership (see our post here for more information).

The FCC promises a Frequently Asked Questions website on the new form, to be available in the near future.  Watch for it, and be prepared to file by December 15. 

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The FCC's struggles to get a new FCC Ownership Report adopted, and to establish a uniform filing date for ownership reports from all commercial broadcasters, seems to be coming to an end.  The new Form 323 Ownership Report was approved by the Office of Management and Budget last week, with the OMB apparently finding the FCC's recent revisions of the form (about which we wrote here) to be sufficient to answer objections that had been raised about its paperwork burden.   From comments made by the Chief of the FCC's Media Bureau at a recent meeting of communications lawyers in Washington DC, the Commission's staff is readying the form for its public debut and, once the details are worked out, commercial licensees will have about 30 days to complete the report and file it electronically at the FCC.  He suggested that the Commission was looking at a December filing deadline - so be on the alert for the Commission's announcement of the new filing deadline to make sure that your report is timely filed by the date that the Commission establishes. 

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On Friday, the Commission formally began a rule making proceeding regarding children and electronic media.  Aware of the vast opportunities, but also the potential risks inherent in today's (and tomorrow's) electronic media, the Commission is seeking to gather information about the extent to which children are using media today, the benefits and risks of the various technologies, and the ways in which society can improve the benefits while minimizing the risks.  Formally entitled "Empowering Parents and Protecting Children in an Evolving Media Landscape", the proceeding is aimed at building a record to inform and guide the Commission's future actions in this area. 

Clearly, these are big picture questions the FCC is dealing with at this stage, but with Friday's Notice of Inquiry the Commission seeks to break the issues down into several areas of inquiry and solicit comment from interested parties.  For example, with respect to the potential benefits, the Commission has identified six principle benefits it sees from electronic media and seeks input about each, including:  (i) improved access to educational content; (ii) ability to acquire technological literacy necessary in a global economy; (iii) ability to develop new skills in the use of technology and the creation of content; and (iv) facilitating new forms of communication with family and peers.  With respect to risks, the Commission has noted a range of potential dangers ranging from the possible exposure to child predators to the impact of excessive or exploitative advertisements.  The Commission's item also asks broad societal questions, such as whether there is a minimum level of media literacy that is required to participate effectively in modern society, and if so, how do we ensure that future generations gain the necessary exposure to electronic media.  At this stage of the process, the Commission is truly asking questions rather than proposing specific rules.  And in fact, there may be potential issues related to regulation in some of these areas, including First Amendment problems in connection with restricting access to indecent material in different types of electronic media. 

Just as an aside, the Notice quietly notes that the Commission previously released Notices of Proposed Rule Makings involving interactive television and embedded advertising on television, respectively.  While the FCC does not incorporate those open matters into this new proceeding, it does invite parties wishing to update the record on issues regarding embedded advertising in broadcast and cable television or interactive television to file ex parte submissions in the earlier dockets. 

The deadline for submitting Comments in this proceeding will be 60 days after publication of the Notice of Inquiry in the Federal Register, with Reply Comments due within 90 days of publication.  Comments may be filed with the Commission on paper, or online using the FCC's newly revamped Electronic Comment Filing System. 

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On Friday the Commission released a further Order confirming certain recent changes to its ownership reporting requirements for commercial broadcast stations and soliciting additional input on the reporting of certain non-attributable interest holders.  Earlier this year, the Commission revised its rules regarding the reporting of ownership interests by commercial broadcasters.  The FCC also recast its FCC Form 323 Ownership Report to collect and organize the ownership data in a more useful manner.  (Our earlier summary of those changes can be found here.)  By its Order last week, the Commission denied a Petition for Reconsideration filed by the National Association of Broadcasters and reiterated that sole proprietors must file an FCC Form 323 biennially to report on their ownership interests. 

In addition, the Commission ratified the Media Bureau's recent decision to push back the filing deadline for the FCC Form 323 from November 1st to no earlier than 30 days after the Office of Management and Budget (OMB) approves the modifications to the Form 323.  The revisions to the FCC Form 323 are still under consideration and it is not clear when the OMB will approve the collection of the information required by the new version of the Form.  (See our earlier posts here and here regarding the OMB's review of the Form 323 under the Paperwork Reduction Act.)  The Commission also noted its agreement with the Media Bureau's decision to require that each and every filing entity obtain an FCC Registration Number ("FRN") in order to complete the ownership reporting, and that each officer, director, and shareholder disclosed on the report also have an FRN.

With respect to the reporting of certain non-attributable interests, the Commission's Order granted the NAB's request for reconsideration and deleted the previously adopted requirement that entities with a single majority shareholder disclose all minority shareholders (despite the single majority shareholder exemption) and that "eligible entities" disclose otherwise non-attributable investors.  The NAB had argued, and the FCC agreed, that the logic for requiring the reporting of these two types of non-attributable interest holders was ill defined and that the intention to impose this requirement was not explicitly stated or developed in the record leading up to the rule change this past May.  Accordingly, the Commission has opened a further comment period to address the specific question of whether these two types of non-attributable interest holders should be divulged on commercial broadcasters' biennial ownership reports.  Comments on this narrow topic will be due within 30 days of when this Order and Further NPRM are published in the Federal Register, with Reply Comments due within 45 days of publication.  A full copy of the Commission's Order and NPRM, including details on how comments can be filed in this proceeding, is available here. 

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Section 312(g) of the Communications Act authorizes the FCC to cancel the license of any broadcast station that has not operated for a full year.   In a recent case, the Commission clarified when it would choose to use that authority to cancel the license of a station that had not been on the air with authorized facilities within that one year period.  In this case, the FCC decided not to cancel the license of a station whose tower was destroyed, where the station came back on the air from the old site but with reduced facilities before the end of the one year period, even though the resumption of operations was initially conducted without FCC authority for the low power operation. The station did, however, ask for Special Temporary Authority to operate with these facilities, authority which was not granted until several weeks after the station had resumed operation.  As the station had requested the authority to resume operations, and had been candid with the FCC about its operations and intentions, the Commission did not cancel the license, but it did fine the station $7000 for operating with unauthorized facilities during the period before the STA was granted.

The decision distinguished the actions of the licensee here with that of the licensee in another case, about which we wrote here, where the FCC canceled the license of a station that was forced off the air at its licensed site, and came back on the air just before the end of the one year period from a totally new site where it had no FCC authority, and where it could not get FAA approval for operations.  The Commission stated that the element of deception in the earlier case, with the station coming on the air at a site where it could not get FCC approval as the FAA had refused its operations from the site, was the distinguishing factor which caused that station license to be canceled. 

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Just this morning, we posted a comment about the new FCC Form 323 Ownership Report that was supposed to be required of all commercial broadcasters on November 1 of this year, and then on November 1 of every other year thereafter.  We wrote about how the approval of the form by the Office of Management and Budget under the Paperwork Reduction Act had been held up, and that the November 1 filing deadline looked unlikely.  Well, the FCC today issued an Order officially putting the November 1 filing obligation on hold pending approval of the new form.  There had been a suggestion in the FCC's order issued in late May, which suspended ownership filings for stations in states that had ownership filing obligations between then and November 1, that stations in these states would have to file on the old form on November 1 if the new form was not adopted by that date.  Today's Order suspends even that obligation.  Thus, no station needs to be prepared to file the new Ownership Report until the new version of Form 323 is approved by the Office of Management and Budget - whenever that may be.  Stayed tuned for more developments.

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Several months ago, we wrote of the FCC's requirements for a new biennial Ownership Report for all commercial broadcast stations - to be filed by all stations in every state on November 1 of every other year - beginning with November 1 of this year.  The FCC has even suspended the requirements for commercial stations to file reports that were due between the date that the rule was adopted and November 1 (reports being due on the even anniversaries of the filing of license renewal applications for stations in the state to which the station is licensed). Yet, here we are, less than a month from the supposed filing deadline for the new forms, and we've not seen any notice from the FCC that the new forms are ready to be used or any reminder for broadcasters to prepare and file those reports.  What gives?  Well, the Paperwork Reduction Act has struck again.

We've written about the Paperwork Reduction Act before, and its obligation that the FCC (or almost any other government agency) has to justify any new paperwork obligation that it is imposing on companies that it regulates - showing that the burden is as minimal as possible and serves a necessary regulatory process.  Here, when the new ownership reports on FCC Form 323 were submitted to the Office of Management and Budget for approval under the Paperwork Reduction Act, several parties, including the NAB, objected that information requested by the new form was unnecessarily complex, and in fact might violate other Federal laws (in particular Federal Privacy laws) as they required not only the filing of information about the companies who own radio stations with identification of their owners, but required that each and every attributable owner of a station (and actually including a few nonattributable owners who must be reported under the new reporting scheme), obtain an FCC "FRN" identification number that would be attached to that person and uniquely identify them in connection with each and every broadcast interest that they have.  In most cases, that would require that the individual provide a social security number (and  corporate entities would have to file Taxpayer ID numbers).  While the FCC promised to keep those identification numbers private, security issues were not addressed and questions were raised why the Commission had to put so many individuals through so much of a burden when the FCC reports had not been adopted to track individual ownership interests, but instead to track the minority ownership of broadcast stations.  Other issues with the new forms were also raised, as the new forms would have required many filings for stations held in independent corporations, but with a common parent company as parent companies cannot simply cross-reference multiple licensee companies that they own, but instead have to file multiple ownership reports for each licensee company in which they have an interest.  In addition, ownership structures and other broadcast interests can no longer be identified by PDF attachments, but they instead needed to be separately entered into their own fields on the new form.  The idea was to make the information searchable - but it would also result in vastly more time to prepare these reports.

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The NAB today announced that it has selected Gordon Smith, a former Republican Senator from Oregon, as its new President.  He succeeds David Rehr, who left the NAB last Spring.  Smith has been practicing law in Washington since leaving the Senate after being defeated in his reelection bid in the 2008 election.  While in the Senate, he served on the Commerce Committee that oversees the FCC.  From a quick on-line search, it appears that he was active in the push for the "broadcast flag" sought by broadcast program producers to identify copyrighted video content broadcast by digital television stations.  Other than his Congressional background, it does not appear that he has other direct broadcast experience.  I would be interested in any knowledge that readers of this blog have about other connections he may have to the broadcast media and any past positions that he has taken on broadcast issues.

Having someone with experience on Capitol Hill was clearly crucial to the NAB given how many controversial issues broadcasters are now facing from Congress and from the FCC.  When David Rehr departed, we wrote about the many issues facing the NAB, most of which are still pending.  These include: 

• The potential broadcast performance royalty - i.e. the recording industry's attempts to, for the first time,  impose a sound recording royalty on broadcasters for their over-the-air transmission of music

• The FCC’s implementation of their White Areas order allowing wireless users to use parts of the TV spectrum – and the appeals and other attempts to overturn or modify that decision

• The reauthorization of SHVERA, to continue to allow satellite companies to beam local television signals into local markets – where parties are raising all sorts of extraneous issues about carriage rights and retransmission consent, possible changes in TV market boundaries, and changes in the rights of satellite carriers to import distant signals.

• The FCC’s localism proceeding, which could impose new obligations on broadcasters at a time when broadcast competition has never been so intense - when the marketplace should dictate how broadcasters best serve their communities

• Potential Congressional effort to bring back the Fairness Doctrine in some form or another

• A number of FCC proceedings that could affect new methods of advertising meant to combat technological changes – like embedded advertising and product placement that are meant to partially overcome the effects of DVRs.

• Congressional attempts to regulate advertising and programing – including potential efforts to restrict prescription drug ads, ED treatments, violent programming and programming that promotes unhealthy foods

• FCC attempts to reign in technical changes in FM stations to allow them to take steps to increase power and to move into larger markets

• Congressional moves to remove restrictions on LPFM stations on channels that are third-adjacent to full power facilities – and to potentially give these new stations rights to replace existing FM translators

 

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An FCC decision released today reminds broadcasters of the need to notify the FCC of the completion of construction of a new broadcast auxiliary station.  Studio Transmitter Links (STL) and Remote Pickups (RPU) have for several years been licensed through the FCC's Wireless Bureau, rather than through the Media Bureau.  Unlike a grant of authority to construct a broadcast station, where the new authorization is granted in the form of a construction permit, when the Wireless Bureau grants a new authorization, it is in the form of a license.  Most broadcasters think of a license as something given to a station that is already constructed and complete. The Wireless Bureau's grant of the license, however, is conditional on the operator providing the FCC with notification upon the completion of construction within a specified period.  If no such notification is provided within the specified period (18 months for most broadcast auxiliaries, but only 12 months for some), and no extension is requested, the Wireless Bureau will automatically issue a public notice canceling the license (see the FCC Wireless Bureau website for details on how to file the notification of construction or extension request).  If the licensee does not request reconsideration of the cancellation of the license within 30 days providing evidence of timely construction, the cancellation will become final.  To operate with the facilities that had been authorized, the licensee would then have to file for a new license - starting the authorization process over from the beginning.  If the auxiliary had in fact been constructed, to continue to use it while the new application is pending, Special Temporary Authority (an "STA") would be required.

In 2006, when announcing the system that automatically generates the termination notice, the Wireless Bureau issued a Public Notice explaining the procedures that it would use.  The Commission states that its system will automatically generate a letter to the licensee providing notification of the cancellation and the 30 day reconsideration period.  Importantly, the Commission reminds licensees to keep their addresses in the FCC's systems current, as the mere fact that the letter did not get to the licensee at the correct address will not be an excuse for an expired license.  But having a correct address gives the licensee a better chance of getting the notice of cancellation if they inadvertently forget to file their notification of construction.  So remember the dates, and remember to keep your address up to date in the FCC's records.

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The Commission today announced the agenda for its August 27, 2009 FCC Open Meeting.  The agenda contains two Notices of Inquiry involving Wireless Telecommunications matters, as well as a Notice of Inquiry Notice of Inquiry about protecting American consumers by ensuring sufficient access to information about communications services.  The first of the Wireless NOIs seeks input regarding the factors that encourage innovation and investment in wireless services and aims to identify concrete steps the Commission can take to support and encourage further innovation and investment in the area, while the second solicits info for the FCC's next annual report to Congress on the status of competition in the mobile wireless market.  A copy of the agenda is available here.

So there are no proposed orders on deck for adoption and no radical agenda items at this month's meeting, but rather a few new proceedings as the new Commission starts to get its sea legs.  We'll see if September brings any Media issues to the table.  As we've written earlier there are plenty already in the pipeline. 

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The Commission today released yet another forfeiture for what has become an increasingly common oversight among broadcasters -- the failure to timely file a license renewal application for a satellite earth station.  What made today's forfeiture unique, however, is the fact that the Commission proposed to double the amount of the forfeiture based on the size of the broadcast licensee and its presumed ability to pay such a fine.  After balancing all the factors, the Commission ultimately ratcheted the fine down a bit, but in the end it assessed a $25,000 fine for the failure to timely file license renewal applications for two earth stations and for the continued operation of those facilities without proper authority.  In light of today's decision, broadcasters should be sure to review and track the expiration dates for all FCC authorizations. 

The FCC's decision in this case makes clear that in imposing a large fine in this case it is attempting to send a message that the Licensee will heed.  Per the Commission's decision:  "This $16,000 forfeiture amount [the baseline forfeiture]  is subject to adjustment, however.  In this regard, we consider the size of the violator and ability to pay a forfeiture, as well as its prior violation of the same rule sections before us today.  To ensure that forfeiture liability is a deterrent, and not simply a cost of doing business, the Commission has determined that large or highly profitable companies such as [Licensee] , could expect the assessment of higher forfeitures for violations, and that prior violations of the same or other regulations would also be a factor contributing to upward adjustment of apparent liability.  Given [Licensee's] size and its ability to pay a forfeiture, coupled with its previous violation, we conclude that an upward adjustment of the base forfeiture amount to $32,000 is appropriate."  [Emphasis added.]  In reaching its decision, the Commission noted that the Licensee in this case was a large broadcaster with "net yearly sales" of over $110 million.  

This forfeiture should serve as a clear warning to broadcasters both big and small to review and track the expiration dates of any earth stations or other authorizations held by a broadcast station.  Rarely (if ever) will the license term of an earth station authorization coincide with the renewal of the parent broadcast station, which means it is easy for the earth station to slip through the cracks.  

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Following the digital transition, issues with the reception of some television stations have highlighted the need for the use of outdoor antennas to receive the digital signal.  Last week, in three FCC decisions, the Commission made clear that its Over-the-Air Reception Device rules (the "OTARD rules") prohibit most zoning and other land-use restrictions, both governmental and private, on the use of such antennas.  These rules were adopted as a result of Congressional actions, and prohibit many restrictions on the installation and use of antennas used to receive television and other video signals either on private property owned by the user of the antenna or on property leased by the user.  Stations should become familiar with these rules, and let their viewers know of the rules, so that they can use them if they have problems installing antennas to receive the new digital signals over the air.

The rules apply to antennas that are one meter or less in diameter, or any size in Alaska, and are designed to receive or transmit direct broadcast satellite services, or one meter or less in diagonal measurement and are designed to receive or transmit video programming services through multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services; and antennas designed to receive television broadcast signals.  For the Rule to apply, the antenna must be installed on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property upon which the antenna is located. 

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An interview with FCC Chairman Julius Genachowski has just been released by Broadcasting and Cable magazine.  In that interview, the Chairman confirms press reports (which we cited here) that there is a planned FCC Notice of Inquiry to look into the news media in the digital world - the first public confirmation of this inquiry from on-the-record FCC sources that I've seen. The Chairman stated, however, that there was no timetable for the initiation of this proceeding.  He also confirmed that he believes that broadcast content regulation is justified given that many Americans still rely on over-the-air television as their only source of video programming.  The interview touches on the children's television rules, indecency enforcement, diversity in the media and even FCC delays in processing applications for the sale of stations against which petitions have been filed.

We suggest reading this interview, as it is the first extensive discussion we've seen by the new Chairman of his views on regulation of the broadcast media.  And, for anyone who had hopes that broadcast regulation would simply fade away, it looks like there may be some FCC proceedings to slog through before those hopes are met. 

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For the first time since the term of FCC Commissioner Tate expired and Chairman Martin resigned, the FCC will be back to full strength with the Senate's approval of new FCC Commissioners Mignon Clyburn and Meredith Attwell Baker.  What issues of importance to broadcasters will the Commission, now headed by Chairman Julius Genachowski, take up in coming months?   The new Chairman, who gave a number of interviews last week with the trade and popular press, emphasized the importance of the broadband rollout.  Beyond that, his priorities for the broadcast media were not detailed.  He did, however, emphasize, that any broadcast regulation (specifically referencing the mandatory review of the broadcast ownership rules that must begin next year), would have to take into account the realities of the marketplace - including the current economic conditions.

Beyond that, there were few clues as to the new FCC's priorities in the broadcast world.  But, even though there are no indications of the FCC's priorities, there are many open broadcast issues that the Commission will, sooner or later, need to resolve.  Some involve fundamental questions of priorities - trying to decide which user of the spectrum should be preferred over others.  Other issues deal with questions of what kind of public service obligations broadcasters will face.  And yet another set of issues deal with just the nitty gritty technical issues with which the FCC is often faced.  Let's look at some of these open issues that may affect the broadcast industry. 

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Each day, there seems to be a report about broadcast stations going off the air because of the current economic downturn - some permanently (witness several Montana full-power television stations formerly owned by Equity Broadcasting whose licenses were surrendered two weeks ago), some temporary, and some being given away to charity (like Clear Channel's announcement of its donation of 4 AM stations to the Minority Media and Telecommunications Council).  Several months ago, we wrote here about the steps a broadcaster should take when taking a station off the air - notification to the FCC within 10 days of the station going silent, seeking permission to remain silent after 30 days, and making sure that tower lights are maintained even if the station is off the air.  But, as this situation becomes more common, there are a couple of other issues that have recently come up that are worth mentioning - one having to do with the one year period that a station can stay off the air without forfeiting its license, and the other dealing with music royalties. 

First, in the last few months, there have been cases which have clarified, at least to a degree, the law that states that a license will be forfeit if a station is off the air for more than a year.  In one decision, the Commission's Video Division of its Media Bureau canceled the license of a television station that had come back on the air shortly before the year of silence was to end, but only broadcast a test pattern.  Finding that the station had not broadcast any programming, and that transmission of a test pattern did not constitute "broadcasting", the Division determined that the obligation to return to the air had not been met, and canceled the license.  The licensee is appealing this decision, arguing that the law (Section 312g of the Communications Act) does not require that a station broadcast programming, just that it "transmit broadcast signals" within a year of the time that it went off the air.  But, for now, licensees who take their stations silent should plan for returning to the air with some programming within a year, or risk the cancellation of the station license.

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The deadline for submitting comments in the FCC's rule making proceeding regarding Arbitron's use of Portable People Meters (PPM) has been set for July 1, 2009.  Reply comments are due by July 31st.

As we discussed in our earlier post, the FCC has begun a rule making to examine the use of the PPM technology of radio audience measurement now being rolled out by Arbitron in radio markets throughout the country.  Various groups have contended that Arbitron’s PPM technology has certain methodological flaws that under counted particular groups, including minority groups, and thus could have an impact on the financial viability of the stations listened to by such groups.  The FCC’s Notice of Inquiry asks about those perceived flaws, about the potential impact of any flaws on the use of Arbitron market definitions for purposes of the FCC radio multiple ownership rules, and on the more general question of whether the FCC even has the jurisdiction to regulate the use of the PPM.  Interested parties can submit comments to the FCC in paper, or electronically using the ECFS filing system. 

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This afternoon, the FCC issued an erratum revising the deadline for submitting Comments in the rule making proceeding regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters.  Comments in this proceeding are now due by June 26th, not June 29th as previously indicated.  Please see our earlier post, here, discussing the questions that the FCC has raised in this rule making.  The deadline for Reply Comments is unchanged, and is still July 13th. 

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UPDATE:  On June 2, the FCC issued an erratum revising the Comment date in this proceeding to June 26th.  We've updated our earlier post to reflect the change.

The FCC today issued a Public Notice announcing the filing deadline for comments regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters (see our post, here, on the questions that the FCC is asking).  Comments are due on June 26, with replies on July 13.  As mentioned in our earlier post, the FCC also issued today an Order suspending the requirement that commercial broadcasters who have upcoming ownership report filing deadlines (including the deadline on Monday for on June 1 for radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, and television stations in Michigan and Ohio).  This is a new policy, and thus supersedes the information in our post two weeks ago.  As all commercial broadcasters will now have to file reports on the same time - November 1 - the need for a second report was deemed unnecessary, especially given the upcoming revisions to the Form 323 to require more detailed information about some otherwise non-attributable owners, and for certain entities not now required to file.

As we have stated, the FCC is interested in obtaining more detailed ownership information in order to better assess whether additional steps to promote minority ownership are justified.  Watch for details of the new November filing requirement in the near future. 

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In a truly eleventh-hour decision, the FCC released an Order late Friday evening suspending the filing of FCC Form 323 Ownership Reports that would otherwise be due on Monday, June 1st for certain broadcast stations.  In its recent Report and Order adopted in the proceeding devoted to Promoting Diversification of Ownership in the Broadcasting Services, the Commission revised its rules to implement a single November 1st filing deadline for all commercial broadcast stations to submit an ownership report.  The Order, however, neglected to address the fact that numerous broadcast stations faced filing deadlines under the current rules that would require an ownership report to be filed by June 1, August 1, or October 1 (depending on a station's license renewal anniversary). 

It is unclear why this issue was not addressed as part of the earlier Report and Order, which was adopted nearly two months ago on April 8th, or why today's Order was not released earlier in order to prevent stations from filing in advance of the June 1st deadline, but the clarification will be helpful for those stations that have not yet filed, or for those that would otherwise face an August 1st or October 1st ownership report deadline.  For those stations that have already filed their Ownership Reports consistent with the June 1st deadline, the Order is silent as to whether the FCC will refund the filing fees paid by those licensees, or alternatively, if those licensees will be required to pay another fee come November 1st. 

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The FCC today issued a Notice of Inquiry into the use of the Portable People Meter technology of radio audience measurement now being rolled out by Arbitron in radio markets throughout the country.  Several months ago, various groups petitioned the FCC for an inquiry into the PPM, contending that it has certain methodological flaws that undercounted particular groups, including minority groups, and thus could have an impact on the financial viability of the stations listened to by such groups (see our summary  of the petitions and the issues raised by these petitions).  The Notice of Inquiry asks about those perceived flaws, about the potential impact of any flaws on the use of Arbitron market definitions for purposes of the FCC radio multiple ownership rules, and on the more general question of whether the FCC even has the jurisdiction to regulate the use of the PPM.

Specific questions on which the FCC seeks comments include:

• Does the use of this technology really undercount minority populations?
• If so, what has been the impact on the economics of minority-formatted stations in markets where the system is in use?
• Are there specific information gathering techniques that should be improved in the PPM system?
• What has been the effect on the PPM system of settlements between Arbitron and the Attorneys General of several states - where Arbitron promised to change its sampling process?
• What is the impact of Media Ratings Council accreditation for the PPM in certain markets, and its lack of accreditation in others?
• Do the questions about PPM reliability have any impact on the use of Arbitron to define radio markets for FCC multiple ownership purposes?
• What is the FCC's jurisdiction to review Arbitron's practices in connection with the PPM? 

Details of these questions can be found in the FCC's Notice of Inquiry at pages 12-17.

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The full text of the FCC's revisions to its ownership report filing process was released last week.  The new rules will require that all commercial stations (including LPTV stations) file an updated Form 323 on November 1 every other year - starting in 2009.  The Order does not add much to the summary that we provided when the decision was first announced, though it does make clear that the electronic form will be revised to no longer allow for PDF attachments, instead requiring that all information be provided on the electronic form itself, so that it can be more easily searched.  With complex ownership structures, which are sometimes not easily explained in the confines of an FCC form, this may create some difficulties.  The Order did not seem to freeze the obligations for the filing of Form 323 Ownership Reports on the old version of the form on the current schedule while the new form is being created and approved by the Office of Management and Budget under the Paperwork Reduction Act, so stations in states with June 1 deadlines for their biennial reports should continue their preparation (see our Advisory on the the reports that are due on June 1 for radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, and television stations in Michigan and Ohio).

The Order also asked for further comment on the Ownership Report requirements for noncommercial licensees, including LPFM stations.  The Commission asks not only for comments on whether noncommercial operators should be required to file their reports on the same two year cycle as commercial broadcasters, but also for comments on what information should be required from these operators.  As noted by the FCC, the question of who controls a noncommercial station is often not an easy one - as there are varying degrees of control and oversight of station operations at many of the institutions that hold noncommercial licenses.  As noted by the FCC, there has been a Notice of Inquiry into noncommercial broadcast station ownership pending since 1989, trying to set out when there is a transfer of control of such entities that needs prior FCC approval.  Noncommercial stations have been operating under the interim policy set forth in that Notice for almost 20 years.  While the Commission does not seemingly ask for any change in the interim policy at this point, by gathering information about what ownership information should be reported on the new ownership report for a noncommercial entity, a resolution of that long-pending proceeding could potentially be in the works.

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National Association of Broadcasters President David Rehr today announced his decision to leave the Association, leaving the NAB without a leader at a time when the Association is facing an incredible number of challenges in Washington. One can only hope that the NAB acts quickly to replace Rehr with someone prepared to aggressively address the needs of an industry hobbled by the current economic climate, and challenged by regulatory issues that could further undermine the ability of radio and television operators to compete in today’s media marketplace. The potential broadcast performance royalty, which could require that radio operators pay musicians and record labels for the rights to play their music on the air, is but one of a number of fundamental challenges that need to be addressed very shortly by broadcaster’s representatives in Washington - perhaps in the next week or two when the House of Representatives Judiciary Committee may take up the "performance tax" issue (as the NAB has called it in their arguments on Capitol Hill).

What else will a new NAB President have to contend with?  In addition to the performance royalty, there seems to be a perception in many quarters that broadcasting is no longer the special medium that it once was that demands regulatory deference because of the public interest service that it provides.  Because of the lessening of some of Washington's regard for broadcasters,  there are many issues now before the FCC, Congress, the courts, and other agencies in Washington – all of which could have a serious impact on broadcasters - including:

 

• The final days of the DTV transition
• The FCC’s implementation of their White Areas order allowing wireless users to use parts of the TV spectrum – and the appeals and other attempts to overturn or modify that decision
• The reauthorization of SHVERA, to continue to allow satellite companies to beam local television signals into local markets – where parties are raising all sorts of extraneous issues about carriage rights and retransmission consent, possible changes in TV market boundaries, and changes in the rights of satellite carriers to import distant signals.
• The FCC’s localism proceeding, which could impose new obligations on broadcasters at a time when broadcast competition has never been so intense - when the marketplace should dictate how broadcasters best serve their communities
• Potential Congressional effort to bring back the Fairness Doctrine in some form or another
• A number of FCC proceedings that could affect new methods of advertising meant to combat technological changes – like embedded advertising and product placement that are meant to partially overcome the effects of DVRs.
• Congressional attempts to regulate advertising and programing – including potential efforts to restrict prescription drug ads, ED treatments, violent programming and programming that promotes unhealthy foods
• FCC attempts to reign in technical changes in FM stations to allow them to take steps to increase power and to move into larger markets
• Congressional moves to remove restrictions on LPFM stations on channels that are third-adjacent to full power facilities – and to potentially give these new stations rights to replace existing FM translators

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This weekend, the Broadcast Law Blog is scheduled for a makeover, with a new look that goes with the new Davis Wright Tremaine website and other changes in our firm's branding materials.  But, for our loyal readers, the look may change, but the content will remain the same - covering legal issues and developments of interest and importance to broadcasters, webcasters and other media companies. As always, we hope that you find the information that we post to be informative and useful, and welcome any comments that you may have. 

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At its meeting today, the FCC decided to revamp its Ownership Report filing process - requiring all stations to file Biennial Ownership Reports on FCC Form 323 on November 1 of this year - even stations that have just filed those reports in the normal course in the last few months.  All stations will have to file every two years thereafter - on November 1 of every other year.  Reports will also be required from Low Power TV stations and Class A TV stations, which have not in the past had to file reports.  Reports will also be required from stations that are owned by an individual, and by general partnerships in which all of the partners are individuals (or, in the FCC's legalese, "natural persons").  In the past, such stations did not have to file reports as any change in ownership would have required, at a minimum, the filing of a Form 316 short-form assignment or transfer application.  Finally, the Commission will require the reporting of the interests of currently non-attributable owners who are not attributable simply because there is a single majority shareholder in the licensee.

The FCC is not asking for this information because it wants to track improper transfers, but instead so that it can gather information about the racial and gender make-up of the broadcast ownership universe.  This information has been required on ownership reports for the last ten years, but the FCC did not believe that the system was extensive enough to capture all information about the ownership of broadcast properties, as so many stations were not covered by the requirements.  Why does the FCC want racial and gender information about the owners of stations?  To potentially take more aggressive actions to encourage minority ownership.  The FCC has considered such actions in the past, but has not felt that it take actions specifically targeted to minority and female applicants, as there was no record of past discrimination in the broadcast industry.  The government can constitutionally only make racial or gender-based decisions if these decisions are to remedy the effects of past discrimination.  To justify such acts, the government agency must demonstrate the past discrimination - and these new filing requirements are meant to gather that information through what is called an Adarand study.  In the recent past, when it adopted certain diversity initiatives for designated entities (like the ability of a designated entity to buy an expiring construction permit and get an extension, which we recently wrote about here), the Commission had to define a designated entity as a "small business" defined by SBA standards.  Chairman Copps today said that this definition did not truly benefit diversity as favoring small businesses "generally benefit white males."

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As part of its order in it proceeding to encourage diversity in broadcast ownership, the FCC adopted a number of new rules, including a rule allowing parties holding construction permits for new broadcast stations to sell those permits to "qualified entities."   The buying qualified entity would then then get 18 months to construct the new station, even if the construction permit would otherwise expire in less than 18 months.  Under prior policy, an FCC construction permit would expire 3 years after it is issued, with no real opportunity for extension (though the construction period could be "tolled" for the period that certain impediments to construction existed, i. e. litigation over zoning, FCC litigation over the validity of the permit, or Acts of God that temporarily stopped construction - but only for the limited period that such an impediment existed).   The new rule was adopted to encourage the sale to new entrants to broadcast ownership who could purchase construction permits that might otherwise expire.  Today, the FCC issued some clarifications of the new rule.

The clarification was issued principally to set out when the sale must take place in order for the buyer to qualify for the 18 month extension.  The FCC's staff looked at the literal language of the new rule, and concluded that the sale must be approved by the FCC and consummated before the expiration date of the construction permit in order for the buyer to get the 18 month extension.  If the sale is not completed before expiration, the permit would expire.  Thus, the Commission warned applicants planning to take advantage of this new rule to file for the FCC approval of the sale at least 90 days before the expiration of the permit, to give time for the FCC approval of the sale and a consummation.  However, because of the uncertainty of the rule, the Commission decided that it would allow any party wanting to buy an unbuilt construction permit and who files to acquire that permit by May 31 to get the 18 month extension, even if the permit expires while the FCC application for approval of the sale is pending.  But after June 1, the buyer will not get the extension if the sale is not completed before the expiration of the permit. 

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In a decision released this week, the FCC granted the application of an FM station for license renewal, denying petitions filed by two former employees who contended that the station had violated a number of FCC rules.  After the FCC inspected the station and found only a few minor issues with the station's public file, the license renewal was granted.  The FCC action was itself routine, but what it points out is that stations need to be very careful in their dealings with employees, especially employees who are about to leave their service.  This is not the first FCC case that was brought based on allegations made by former employees, and it will no doubt not be the last.  Putting aside the merits of the claims made in the complaints, the station had to endure a delayed renewal and no doubt significant legal expenses in bringing the matter to a resolution - which perhaps may have been avoided had there been better relationships with the former employees .  A few weeks ago, we wrote about the need to handle lay-offs and reductions in force in a manner that is least likely to cause legal problems for the station, and pointed to a memo from Davis Wright Tremaine's employment law practice that highlighted some considerations to keep in mind.  That memo is probably worth review once again in these troubling economic times where layoffs have become the norm at many broadcast stations.

The case also highlights the need for the broadcaster to be absolutely candid and forthright in its dealings with the FCC and the public.  A broadcaster may be tempted to fudge on certifications on FCC applications as to issues like whether it timely placed documents into the public file, or whether it did all the EEO outreach that was required for all of its job openings.  But, beyond the simple fact that you should tell the truth, there are usually employees that know what's happening at a station.  And, one day, those employees could become "disgruntled" (funny that no one ever talks about a "gruntled" employee), and seemingly innocent certifications that ignored some minor transgression can be blown up into a major issue - claims of misrepresentation or false certification which can cost broadcasters their licenses.  The admission of a missed deadline, incomplete public file or similar issue will at worst bring a fine, while the false certification can lead to much more.  Be candid, treat employees well - and stay out of trouble.

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In these challenging economic times, it seems like almost every day we see a notice that a broadcast station has gone silent while the owner evaluates what to do with the facility.  This seems particularly common among AM stations - many of which have significant operating costs and, in recent times, often minimal revenues.  The DTV transition deadline (whenever that may be) may also result in a number of TV stations that don't finish their DTV buildout in time being forced to go dark.  While these times may call for these economic measures to cut costs to preserve the operations of other stations that are bringing in revenue, broadcasters must remember that there are specific steps that must be taken at the FCC to avoid fines or other problems down the road.

One of the first issues to be addressed is the requirement that the FCC be informed of the fact that a station has gone silent.  Once a station has ceased operations for 10 days, a notice must be filed with the the FCC providing notification that the station is not operational.  If the station remains silent for 30 days, specific permission, in the form of a request for Special Temporary Authority to remain silent, must be sought from the FCC.  The rules refer to reasons beyond the control of the licensee as providing justification for the station being off the air.   Traditionally, the FCC has wanted a licensee to demonstrate that there has been a technical issue that has kept the station off the air.  The Commission was reluctant to accept financial concerns as providing justification for the station being silent - especially if there was no clear plan to sell the station or to promptly return it to the air.  Perhaps the current economic climate may cause the FCC to be more understanding - at least for some period of time.

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On Thursday, the Obama administration appointed FCC Commissioner Michael Copps to be the Acting FCC Chairman until the administration selects its permanent Chairman, and that person is confirmed by the Senate.  As we've written, the rumors are that the permanent Chair will be Julius Genachowski, a former classmate of the President.  But, as far as we know (and according to the White House website's list of appointments made so far), that appointment has not yet been formally made and sent to the Senate Commerce Committee for the initiation of hearings on the qualifications of the nominee.  Commissioner Copps is the most senior of the remaining three Commissioners (Democrat Jonathan Adelstein and Republican Robert McDowell being the other two remaining Commissioners), and has been an outspoken advocate of more stringent regulation of the public interest performance of broadcasters (see, for instance, our posts here and here).  What will his appointment as interim FCC chairman mean for broadcasters?

Initially, it would seem reasonable to assume that the Acting Chair will be principally occupied with the DTV transition, as least for the next few weeks, and perhaps longer if the pending legislation to delay the transition deadline until June 12 is adopted.  It would also seem reasonable to assume that the Commission, at least for the short term, will not be tackling major regulatory initiatives (like the localism proceeding), until the permanent FCC Chair has taken office.  One of the initial Executive Orders that was issued by the Obama administration was to freeze the actions of administrative executive agencies until the political appointments made by the administration have been confirmed and taken their places, so that the new administration is not saddled by regulations that don't fit with its overall political agenda.  While many in DC believe that this order does not apply to an "independent agency" like the FCC (which technically does not report to the administration, but instead to Congress), it would be reasonable to assume that the spirit of the order would be followed by the FCC.

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The FCC's has published in the Federal Register certain aspects of its November decision on closed captioning - most notably the Further Notice of Proposed Rulemaking asking if a broadcaster's multicast streams should each count as a separate "channel" potentially exempt from closed captioning requirements if that channel doesn't bring in more than $3 million in annual revenue.  Seemingly, each of the multicast streams are what one would conventionally think of as a channel, yet the Commission has asked for comments on this issue - comments to be filed by February 12.  If the Commission was to determine that a multicast stream was not a separate channel, the captioning obligations would apply if the station, in all of its cumulative operations, had revenues of $3 million.   This could impose significant costs on innovative programming done on these multicast streams.  The November decision also clarified certain other rules, and adopted certain processes for dealing with complaints about captioning issues (processes yet effective as they have not been approved by the Office of Management and Budget for compliance with the Paperwork Reduction Act).  Davis Wright Tremaine has published a memo providing more information about the effect of the Federal Register publication.  Our summary of the November decision itself is available here

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The press was abuzz yesterday with the news that Julius Genachowski is apparently the pick of the Obama Administration for the position of FCC Chairman.  Mr. Genachowski was at the FCC during the Reed Hundt Administration, and has since worked in the private sector in the telecommunications industry, including work with Barry Diller and running a DC-based venture capital fund.  From the positive reactions that the appointment has received from all quarters, the choice would seem to be a great one.  But, in looking at some of the reactions, you have to question whether everyone has to be reading what they want to see into the new Commission.  For instance, while the NAB has praised the choice of Genachowski (stating  that he "has a keen intellect, a passion for public service, and a deep understanding of the important role that free and local broadcasting plays in American life"), so too did media-reform organization Free Press ("This moment calls for bold and immediate steps to spur competition, foster innovation and breathe new life into our communications sector. With his unique blend of business and governmental experience, Genachowski promises to provide the strong leadership we need.")  What will this appointment really mean for broadcasters?

In short - who knows?  When Kevin Martin was appointed Chairman of the FCC, few would have imagined that a former communications attorney, a person deeply involved in the Bush campaign, and a former staffer of FCC Commissioner Harold Furtchgott-Roth (perhaps the most free market Commissioner ever) would have supported sustained, wide-reaching inquiries into the underbrush of FCC regulation - e.g. localism, embedded advertising, indecency.  So we can't really know what a Chairman will do until he does it.  The Washington Post and the Wall Street Journal both suggest that the new chairman will be focused on Internet issues, and may be less interested in indecency - but who knows?

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2009 - a new year, and a whole new cycle of regulatory requirements.  We wrote last week about the potential for changes in regulations that may be forthcoming but, like death and taxes, there are certain regulatory dates each year that broadcasters need to note and certain deadlines that must be met.  Those dates are set out in our advisory - Important Dates For Broadcasters in 2009 - a calendar of the year's regulatory filings.  Dates include the deadlines for routine FCC filings - ownership reports, children's television reports, quarterly issues programs lists, EEO Public File reports, etc.  Dates for the payment of royalties for Internet radio streaming operations are also included, as well as the lowest unit rate windows for upcoming gubernatorial races in New Jersey and Virginia.  And the all-important DTV deadlines are also listed.  So, to keep track of your regulatory obligations, check out our broadcaster's calendar, here. 

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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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As the Obama administration fills its top level government posts, all eyes are now turning to the next levels of government appointments which, at some point, will include a new Chair of the FCC and potentially other new FCC Commissioners. We wrote about our hopes for an Obama administration at the FCC immediately after the election, and now other voices in Washington are weighing in. And, as one might expect, with so many different perspectives, the advice is far from consistent. As we wrote in our analysis, the appointment of the FCC Chair is crucial as it is the FCC Chair, far more than the President or the White House, who sets the tone for Communications policy. This is made clear by the extensive regulations either adopted or proposed for broadcasters by the current Republican FCC, seemingly at the direction of the current chairman, regulations that would not have been expected from a Republican administration.  In light of the economic challenges facing broadcasters, as evidenced by today's news that two television companies - Tribune and Equity - declared bankruptcy, and another, NBC, has announced a cut back in prime time programming, replacing it with a prime time, 5 day a week Jay Leno program. 

So what should the transition team look to accomplish at the FCC?  In one of the most perceptive articles that I’ve seen recently, Harry Jessell in TV Newsday has urged the new Commission to simply do nothing on broadcast regulation for the next year. The current state of the economy and its ramifications for the advertising that is the lifeblood of the broadcast industry simply leaves no room for broadcasters to have to bear new costs for new regulations.  Broadcasting and Cable magazine has echoed that sentiment last week.  Recently, not only have we seen the economy and the state of the broadcast industry been reflected by the actions announced by Tribune, Equity and NBC today, but we’ve seen numerous mainstream press articles about the economic peril in which the entire broadcast industry finds itself.  In one recent article, radio’s dramatic decline in revenues was highlighted, even as the industry's listenership remains high (as confirmed by BIA’s recent prediction that radio revenues will decline by 7% in the coming year, coming after declines this year – perhaps the first two year decline in revenues in radio history). I recently attended the Radio Ink Forecast 2009 conference in New York.   While the conference is off the record, I don’t think that I’d be betraying any confidences to state that there was much concern about the short term health of the radio industry. 

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Today FCC Chairman Kevin J. Martin released a tentative agenda for the scheduled December 18, 2008 Open Commission Meeting.  The tentative agenda, available here, contains a number of items that the Chairman has circulated to the other Commissioners for consideration at the upcoming Open Meeting.  Whether these items actually make it to the agenda for that meeting remains to be seen, as the formal agenda for the meeting will not be released until one week before the meeting.  Of particular interest to broadcasters are the following items:

• Program Carriage and Program Access-  A Report and Order modifying the program carriage rules and procedures and a Further Notice of Proposed Rulemaking seeking comment on the practices of programmers and broadcasters.

• DTV Translators-  A Notice of Proposed Rulemaking proposing a new digital television translator service for analog loss areas.

• DTV Consumer Education Notice of Apparent Liability-  An omnibus Notice of Apparent Liability against various companies for apparent violations of the Commission’s DTV consumer education requirements.

It is unknown whether the Notice of Apparent Liability for Forfeiture (FCC-speak for a fine) will include broadcast television stations, retailers, multi-channel video providers, or some combination of all three, but the fact that the FCC intends to fine parties for failing to comply with the FCC's DTV education rules is a strong indication of how seriously it is taking the DTV transition.   

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With Barack Obama's historic victory just sinking in, all over Washington (and no doubt elsewhere in the country), the speculation begins as to what the new administration will mean to various sectors of the economy (though, in truth, that speculation has been going on for months).  What will his administration mean for broadcasters?  Will the Obama administration mean more regulation?  Will the fairness doctrine make a return?  What other issues will highlight his agenda?  Or will the administration be a transformational one - looking at issues far beyond traditional regulatory matters to a broader communications policy that will look to make the communications sector one that will help to drive the economy?  Some guesses, and some hopes, follow.

First, it should be emphasized that, in most administrations, the President has very little to do with the shaping of FCC policy beyond his appointment of the Commissioners who run the agency.  As we have seen with the current FCC, the appointment of the FCC Chairman can be the defining moment in establishing a President's communications policy.  The appointment of Kevin Martin has certainly shaped FCC policy toward broadcasters in a way that would never have been expected in a Republican administration, with regulatory requirements and proposals that one could not have imagined 4 years ago from the Bush White House.  To see issues like localism, program content requirements and LPFM become such a large part of the FCC agenda can be directly attributed to the personality and agenda of the Chairman, rather than to the President.  But, perhaps, an Obama administration will be different.

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As broadcasters are aware, earlier this year, the FCC imposed DTV Consumer Education requirements mandating that television stations and other video providers educate viewers about the upcoming transition from analog to digital television (DTV).  Thus far, the education efforts have consisted primarily of Public Service Announcements (PSAs), crawls, and longer format programs designed to educate the public about the February 17, 2009 switch to DTV.  Now that stations are approaching the home stretch, however, the FCC's rules require additional efforts.

Specifically, for those stations that elected to follow “Option Two” of the DTV Consumer Education requirements -- which seems to be the vast majority of television stations -- beginning on November 10, 2008, television stations must begin a "100-Day Countdown" to the transition consisting of enhanced efforts leading up to February 17, 2009.  During this period, each station following Option Two must air at least one of the following per day:

Graphic display:  A graphic super-imposed during programming content that reminds viewers graphically there are “[X] number of days” left until the transition, and that visually instructs viewers to call a toll-free number or to visit a web site for further details.  The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.

Animated graphic: A moving or animated graphic that concludes with a countdown reminder, which will remind viewers that there are “[X] number of days” until the transition. Viewers are to be visually instructed to call a toll-free number or to visit a website for details.  The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.

Graphic and audio display: Either a graphic display or animated graphic along with an added audio component.  The duration may vary from 5 to 15 seconds, at the discretion of the station.

Longer form reminders: Stations may choose from a variety of longer form options in order to communicate the countdown message.  Examples might include an “Ask the Expert” segment in which viewers can call in to a phone bank and ask knowledgeable people questions about the transition.  The length of these segments can vary from 2 to 5 minutes, at the discretion of the station.  (Some stations may also choose to include during newscasts DTV “experts” who may be asked questions by the anchor or reporter about the impending Feb. 17, 2009, deadline).

With this 100-Day Countdown, the Commission hopes to push strong to the finish line and build viewer and consumer momentum for the final switch to digital on February 17th.  The FCC has been paying close attention to station compliance with the DTV Consumer Education requirements and stations are advised to start planning now for their 100-Day Countdown efforts.  One additional note, stations that have elected to follow Option Two should also be sure to air at least one longer form program (at least 30 minutes in length) if they have not done so already.   At least one such program must be run between the hours of 8:00 AM and 11:35 PM prior to February 17, 2009.  

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Tomorrow's FCC meeting was to consider the proposal to allow AM stations to use FM translators on a permanent basis (see our post here).  However, it is not going to happen - the FCC released a Public Notice today removing that item from the agenda for tomorrow's meeting.  While a number of other items were also withdrawn from the agenda, most of them were decisions on specific cases which are not routinely decided at open meetings, and most of these matters were decided on circulation (i.e. voted on by the Commissioners without a meeting).  Two more general items, one dealing with a simplification of AM proof of performance procedures and another with requests for reconsideration of the FCC's noncommercial comparative standards, have also been decided on circulation (and we will report on these decisions when the decisions are released).  But the item on FM translators for AM stations was pulled from the agenda, and has apparently not been decided by the FCC.

Rumors that this item would be pulled circulated last week at the NAB Radio Show.  We have always expressed concerns that this item would be held up by pressure put on the FCC by LPFM advocates who fear more demand for FM translators from AM stations will make it harder for LPFM applicants to find open channels.  We have no idea if this is in fact the reason for the deletion of the item from tomorrow's agenda, and will have to wait to see when the matter reappears for final consideration.

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Last week, the FCC released a Public Notice asking for comments on whether it should begin a Section 403 investigation into the use of Arbitron's Portable People Meter ("PPM").  A coalition of broadcast groups, the "PPM Coalition," principally comprised of broadcasters providing service to minority communities, sought the investigation as a way of delaying the implementation of the PPM technology next month in a number of large broadcast markets.  In their request, which can be found on the Minority Media and Telecommunications Council website, the PPM Coalition argues that the investigation is justified based on the Commission's objectives (and various administrative and legislative mandates) to improve minority ownership in broadcasting.  The PPM Coalition contends that methodology problems in PPM implementation result in artificially low ratings for minority owned stations.  These parties argue that, if the system is implemented, a number of minority-programmed stations will disappear.  Arbitron has argued that the Commission does not have the jurisdiction to regulate ratings services (who are obviously not FCC licensees) or the methodology that they use.  Comments on the request for an investigatory hearing are due on September 24, and replies on October 6 (two days before the PPM system is to be implemented in eight markets).

Section 403 of the Communications Act gives the Federal Communications Commission the power to conduct investigations of any complaint of any violation of its rules or of provisions of the Communications Act, or to explore any other matter relating to the provisions of the Act.  Such investigations are often conducted before an Administrative Law Judge, but can be conducted before the Commission itself, and allow the FCC to use full discovery techniques (e.g. document production requests and depositions) and to conduct an evidenciary hearing.  In the past, the process was used much more frequently.  It has been used both to investigate specific complaints of possible misconduct by individual licensees, and to conduct broader inquiries into business practices in a regulated industry to decide if FCC regulation was necessary.  For instance, in the 1960s, there was an investigation into network practices to determine if those practices required FCC action to regulate the network-affiliate relationship.  In recent years, the power has been rarely used, and when used has tended to relate to specific allegations of misconduct to determine if the FCC should bring some sort of enforcement action against a regulated entity.

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Affected Stations:  

• Radio Stations in Michigan and Ohio
• Television Stations in Arizona, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, as well as the District of Columbia

Just a reminder that by June 1, 2008, radio stations in Michigan and Ohio, and television stations in Arizona, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, as well as the District of Columbia, must prepare and file electronically an FCC Form 323 Biennial Ownership Report with the Federal Communications Commission (FCC).  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E by that date.

Ownership Reports are to be filed every other year, reporting on changes in the licensee's ownership and updating the information requested by the form. Ownership information must be provided for all attributable owners of the licensee.  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.  A copy of our complete reminder memo containing additional information on this filing deadline can be found here. 

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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.

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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. 

 

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Quarterly Issues Programs Lists Due April 10th -- This is a eminder to all radio and television stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of January, February, and March dealing with those issues must be prepared and placed in the stations' public inspection file by April 10, 2008. The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion. See our full advisory for further details.

Please note, the New Form 355 for television stations has not yet become effective, but when it does, television stations will be required to use this new form to report on their programming content in great detail.  Stations should prepare for the implementation of this form now. 

Children's Program Reports Due April 10th --  Commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by April 10, 2008. The Reports must also be placed in the stations' public inspection files by that date. Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398. Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by April 10th.

New Form 388 Report on DTV Educational Efforts Due April 10th -- Last, and definitely not least, by April 10th full power television stations must electronically file the newly minted Form 388 reporting on their efforts to inform viewers about the DTV transition.  Although the FCC's new rules mandating educational efforts by TV stations were only effective March 31st (the last day of the quarter), the FCC nevertheless is requiring that all stations file a report detailing their DTV education efforts during the First Quarter of 2008.  Thus, stations will largely be reporting on any voluntary educational efforts undertaken in the first quarter (PSAs, news programs, etc.), as well as electing which of the three Options that they intend to employ for their DTV educational efforts going forward.  More information is available in our recent advisory. 

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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).

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In two recent cases, the FCC discussed the issue of "blanketing interference," the interference that can be caused by a broadcaster to electronic devices that are located in homes and businesses near to the station's transmitter site.  In the first case, the FCC rejected a license renewal challenge finding that there was no specific showing of interference to protected RF devices.  The FCC appends to this decision a guide to the types of interference which a broadcaster must resolve.  In the second case, the Commission also denied a complaint filed against the renewal application of a radio station based on the interference that it allegedly caused in nearby homes.  Here, the Commission published a set of Guidelines as an appendix to the decision - guidelines which help clarify the procedures that a broadcaster should go through to assess its responsibility to remedy interference complaints.  Together, the attachments to these two cases should give stations guidance on what they should do if they get complaints of blanketing interference.

Essentially, broadcasters are required to resolve all complaints of blanketing interference which occur within a station's "blanketing contour" (1V/m for AM stations, 115 dBu or 562 mV/m contour for FM stations) during the first year of a station's operation from a particular transmitter site to "RF devices."  These include radios, TVs, and VCRs with tuners in them.  Licensees are not required to resolve complaints to mobile receivers.  Telephones, phonographs, tape recorders or devices using high gain antennas also are not covered.  After the first year, stations, while not fully financially liable, do have the responsibility to provide information and assistance about how to resolve the interference to the person who is suffering that interference.  The Appendix to the second case states that licensees will have to respond to all complaints filed with the FCC and provide details of what they have done to address interference complaints.  So broadcasters should be aware of their responsibilities, and take appropriate actions based on the guidelines set out by the FCC.

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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.  

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Here we are, almost a full month into the new year, and a number of important dates for broadcasters are already upon us.  As we wrote here, for instance, the payment of a minimum fee to SoundExchange by radio stations streaming their signals on the Internet is due today.  Lowest unit rates are in effect in many states for upcoming Presidential and even some Congressional primaries (see our post announcing the beginning of the LUR period for Super Tuesday).  FCC filing deadlines for Annual Ownership Reports for a number of states are due on February 1, as are EEO Public File Reports for several states.  And, on February 18, full power television stations must file with the FCC a Form 387 Status Report detailing where they are in their transition to digital television in time for the February 2009 transition deadline.  How is a broadcaster to keep all these dates straight?  Check out our advisory on the Important Dates for Broadcasters in 2008, available here, which tracks many of the deadlines that will occur this year - including the dates of routine FCC filings, lowest unit rate windows for political broadcasting purposes, and digital television transition milestones.

And a reminder about February 1 deadlines.  Radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically an FCC Form 323 Biennial Ownership Report with the FCC.  Our Advisory on completing and filing the Ownership Report can be found, here.  And radio and television Station Employment Units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.   In addition, radio stations in Arkansas, Louisiana, and Mississippi with eleven or more full-time employees must also prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  Our Advisory on these filing requirements can be found here.  Stay on top of all these deadlines with our advisory on Important Dates for Broadcasters for 2008.

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The FCC has released the agenda for its first open meeting of the year, scheduled for this Thursday, January 17, 2008.  The agenda consists solely of presentations by the various Bureau Chiefs discussing their various policies and procedures in implementing the agency's "strategic plan."  Such an agenda, while not common, is not unheard of, especially for the first meeting of the year, and especially after so many controversial decisions were made in the last two meetings at the end of 2007.  

This agenda was released a few days after House Energy and Commerce Committee Chairman John Dingell announced an investigation of the Commission's rulemaking procedures and management practices.  FCC Chairman Kevin Martin has been under fire from Republicans and Democrats alike in both the House and Senate, especially following the agency's December meeting in which the newspaper/broadcast cross-ownership ban was modified, as we discussed here.  Congress has criticized the agency's lack of transparency, and infighting among the Commissioners has become open and much talked about in Washington, as reflected in meetings that are often delayed by hours and in Commissioner's Copps' vitriolic dissenting statement read aloud at the December meeting. 

Continue Reading...

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of October, November, and December dealing with those issues must be prepared and placed in the stations' public inspection file by January 10, 2008.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by January 10, 2008.  The Reports must also be placed in the stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by January 10th. 

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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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The Commission’s Further Notice of Proposed Rulemaking (“Further NPRM”) regarding the next generation Emergency Alert System (“EAS”) has been published in the Federal Register, setting the date for Comments as December 3, 2007 and the date for Reply Comments as December 17, 2007.  This summer, the Commission adopted a Report and Order extending its EAS Rules to wireless services, and adjusting the rules to better serve the needs of persons with disabilities and non-English speakers.  The Report and Order also expanded the base of EAS participants, included state-level and geographically targeted EAS alerts, and improved coordination with state and local governments.  A copy of the FCC’s Report and Order and the Further NPRM can be obtained here. 

The Further NPRM raises additional questions regarding how the EAS rules can be adjusted to ensure that non-English speakers and persons with disabilities are reached by EAS messages.  In addition, the Further NPRM seeks input regarding whether local, county, tribal, or other state governmental entities be allowed to initiate mandatory state and local alerts, and if so, what standards or requirements be imposed in initiating an EAS message.  Finally, the rulemaking seeks comment on options for ensuring that the EAS operates as designed in an emergency, and posits several options for measuring performance.  Comments can be filed with the Commission in paper or electronically via ECFS, and should refer to EB Docket No. 04-296. 

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The FCC announced Wednesday that it will hold an open meeting and its Sixth Localism Hearing on October 31, 2007 at the Commission in Washington, DC.  Combining its standard agenda with a further hearing on localism, the Commission intends to begin its meeting at 9 AM and conclude by 2PM.  A copy of the FCC's public notice is available here. 

The Localism Hearing portion of the program continues the string of hearings conducted around the country in recent years.  As we've written earlier, the Localism Hearings were part of a larger proceeding begun in response to the controversy after the 2003 multiple ownership rules and seek to gather input on how well broadcasters are serving the needs of their local communities .  The Oct. 31st meeting will include a presentation by the Media Bureau summarizing the record that the FCC has compiled thusfar on localism, as well as a period for comment by the public.  Commissioners Copps and Adelstein issued a press release on Wednesday, denouncing the hearing as last minute and unfair, stating:  "This is unacceptable and unfair to the public.  And it makes putting together an expert panel nearly impossible.  Is the Commission serious about allowing the public to participate in the agency’s decisionmaking?  Or is the goal to be able to claim that hearings have been held, even if the public has not had a chance to fully participate?”  It will be even more unacceptable and unfair if the meeting gets delayed and keeps folks from trick-or-treating with their kids. 

With respect to the agenda items on tap for the open meeting portion of the program, the Commission appears ready to act on a Report and Order concerning exclusive contracts for the provision of video services to multiple dwelling units, and a Second Report and Order regarding local franchising authorities and the awarding of cable franchises. 

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As the nation's television stations move closer and closer to the February 17, 2009 termination of analog broadcasting, plans are well underway to re-use the channel that these stations must surrender after that date.  Currently, most television stations operate on two channels, their traditional analog channel, and a transition channel on which they have been allowed to transmit their digital signal until the end of the digital transition.  As we wrote here, the FCC has assigned to all stations a final channel on which they will operate once the transition is complete (usually the transition channel or the original analog channel).  After February 17, 2009, the television stations will only broadcast on their final digital channel, and their other channel will be returned to the FCC.  All television operations will be consolidated in Channels 2 through 51, allowing the re-use of Channels 52-69.  Some of those returned channels have already been auctioned off (see our post here about some of the operations on those channels), and the FCC has recently announced auction rules for the remaining channels.  Our firm has just issued an Advisory setting out the important dates for participation in that auction - the so-called 700 MHz auction.  That advisory is available, here.

As these channels have excellent propagation characteristics, it is believed that they will be highly sought, with some estimates that the nationwide channels may bring several billion dollars into the Federal treasury.  Rumored uses include various forms of broadband access, either through open systems where consumers will pay for access as they do for any Internet access, but content providers will not have to pay, to more closed systems where the licensees determine what content will be provided.  As set out in the Advisory, at least some degree of openness to new devices that connect to the network is guaranteed on some portion of this spectrum under the Commission's orders.  But ultimately how much of that spectrum is used for closed systems transmitting video or audio entertainment (sounds like broadcasting) remains to be seen.   The more things change....

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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.

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Annual EEO Public File Report Deadline - October 1

Affected States:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington

By October 1, 2007, 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 files of all stations 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 October 1 filing deadline are:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington. 

In addition to preparing the Annual EEO Public File Report by October 1, larger radio stations in Florida, Puerto Rico, and the Virgin Islands 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 with 11 or more full-time employees are required to file an FCC Form 397 by October 1, 2007.

Biennial Ownership Report Deadline - October 1

Affected States:   Radio:  Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington;  Television:  Iowa and Missouri

By October 1, 2007, radio stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington, and television stations in Iowa and Missouri 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 requirements can be found here (Ownership) and here (EEO).

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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.

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In March, we wrote about the concurring opinion of Commissioner Copps in connection with the sale of Univision Communications, where the Commissioner asked whether it was in the public interest to allow the sale of broadcast companies to private equity firms.  That theme has now been picked up by Congress, as Congressman John Dingell, Chairman of the House Energy and Commerce Committee, and Ed Markey, Chairman of the Telecommunications Subcommittee, jointly sent a letter to the FCC asking for answers to a series of questions about the impact of private equity ownership of media and telecommunications facilities.  The letter, here, cites the Univision case, the acquisition of Clear Channel and the sale of a number of Radio One radio stations to private equity firms, and suggests that these firms may be more interested in cutting expenses and maximizing profits to the detriment of the public interest.  The letter asks a number of questions about whether the FCC has adequate information about such ownership to assess its impact on the public interest.

The questions posed by the letter include the following:

• Whether the FCC currently tracks ownership of media properties by private equity companies.
• Whether the FCC has assessed the impact of private equity ownership on localism and, if it has not, should it
• Whether the FCC has adequate information to assess the impact of media ownership by these companies on multiple ownership considerations
• Whether the Commission's Equity-Debt Plus rules need to be revised to take account of private equity ownership
• If the ownership of these entities is sufficiently public and transparent for the Commission to review that ownership.

The letter was addressed to Chairman Martin, and he was given until July 20 in which to respond.

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Annual EEO Public File Report Deadline—August 1

Affected States:  California, Illinois, North Carolina, South Carolina, and Wisconsin

By August 1, 2007, radio and television Station Employment Units in the states listed above must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.  A Station Employment Unit (SEU) is a group of stations, under common control, serving a common area, and sharing at least one employee.  If an SEU includes stations in different states with different filing deadlines, the SEU can select which filing deadline it will use.  Once selected, the Annual Report filing deadline should be consistently applied for all future EEO Annual Reports.  The states with the August 1 filing deadline are:  California, Illinois, North Carolina, South Carolina, and Wisconsin.

Biennial Ownership Report Deadline—August 1

Affected States:   Radio TV- Illinois and Wisconsin - California, North Carolina, and South Carolina;

In addition, by August 1, 2007, radio stations in California, North Carolina, and South Carolina, and television stations in Illinois and Wisconsin 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. 

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of April, May, and June dealing with those issues must be prepared and placed in the stations' public inspection file by July 10, 2007.   The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory here for further details. 

In addition,commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by July 10, 2007.  The Reports must also be placed in stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by July 10th. 

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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

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Although the FCC has not issued a public notice announcing that the revised form is available, the new FCC Form 398 Children's Television Programming Report is now available on the Commission's web site.  The form is available here, and should be used in lieu of the previous version of the form.  As we've written previously, the FCC revised its Form 398 to reflect the extension of the children's programming rules to digital television.  Accordingly, the Form 398 now solicits information on the children's programming provided on each of the station's digital program streams, as well as on the analog channel.  For stations that multicast multiple programming streams, the quarterly report can require a bit of additional time to prepare. 

Because the revised form was not available in April, when the first quarter reports would have been due, the Commission granted an extension of time until June 10th for television stations to prepare and file their FCC Form 398 Children's Television Programming Reports.  Thus, stations should be sure to complete and file the form with the FCC and place a copy of the report in their public inspection file by June 10th.  Going forward, the quarterly filing deadlines will be back on schedule with the Second Quarter Report due by July 10th. 

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In addition to preparing their Annual EEO Public File Report by June 1, larger radio stations in Washington, DC, Maryland, Virginia, and West Virginia must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report.

Please note, only radio Station Employment Units located in these four jurisdictions with 11 or more full-time employees are required to file an FCC Form 397 by June 1, 2007.  The Form 397 provides the FCC with copies of the Station Employment Unit’s two most recent Annual EEO Public File Reports (the reports from this year and last year), and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures.  While normally the Annual EEO Public File Report is simply prepared and placed in the station’s public file and on its website (if it has one), at the mid-term of the license term and again at the time the station’s license renewal application is filed, stations must actually provide the FCC with its two most recent Public File Reports.  This allows the FCC and the public to review the station’s compliance with the EEO rules.  

June 1, 2007 is the first time that the Mid-Term EEO Report will be filed by any group of stations, and marks the mid-point in the license term for radio stations in DC, Maryland, Virginia, and West Virginia. Television stations in these states will file a Mid-Term EEO Report this time next year.  A copy of the FCC’s Public Notice reminding stations of this filing requirement and listing the other radio stations that will file such reports in 2007 is available here.

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Annual EEO Public File Report Deadline—June 1

Affected States:   Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming

By June 1, 2007, radio and television Station Employment Units in the states listed above must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.  A Station Employment Unit (SEU) is a group of stations, under common control, serving a common area, and sharing at least one employee.  If an SEU includes stations in different states with different filing deadlines, the SEU can select which filing deadline it will use.  Once selected, the Annual Report filing deadline should be consistently applied for all future EEO Annual Reports. The states with the June 1 filing deadline are:  Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming.

Biennial Ownership Report Deadline—June 1

Affected States:   Radio- Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming;  TV- Michigan and Ohio

In addition, by June 1, 2007, radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming, and television stations in Michigan, and Ohio 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.

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The FCC has announced that the filing of the FCC Form 398 Children's Television Programming Reports for the First Quarter of 2007 will be postponed until June.  Thus, rather than preparing the Form 398, filing it with the FCC, and placing it in the station's public file by April 10th (ten days after the end of the first quarter), the report for the First Quarter of 2007 does not have to be completed, filed, and placed in the public file until June 10th. 

This extension of time to file is the result of the FCC's revision of the Form 398 to solicit information regarding children's programming aired on multicast digital streams, as well as a result of an ongoing upgrade of the FCC's computer database containing the children's television reports.  As we've reported previously on this blog and in a separate bulletin, the Commission last year made revisions to its children's television rules, including the extension of the programming obligations to multicast digital television streams.  The revised Form 398 will contain additional sections for stations to certify their compliance with the various new rules, as well as to report the core children's programming aired on the digital programming streams.

According to the FCC's Public Notice announcing the extension of the filing deadline, the revised electronic version of the Form 398 should be available on the Commission's website by May 15, 2007.   We will let you know once the new form is available, and stations should be careful to gather and retain the pertinent information for the programs broadcast in the first quarter so that information is available once the new form is released. 

 

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The FCC is continuing its Multiple Ownership Road Show, this time stopping in Tampa-St. Petersburg, Florida on Monday, April 30, 2007.  This latest tour date was announced by a brief public notice yesterday, with further details to follow.  Tampa-St. Petersburg will be the fourth of six scheduled stops on the Commission's national tour to hear what the public has to say about media consolidation.  The most recent official stop was in Harrisburg, Pennsylvania on February 23, 2006.  Our previous observations on the Commission's ongoing multiple ownership rule making proceeding can be found here.  

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

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

 

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

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

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Two recent FCC cases set confusing and perhaps dangerous precedents for the use of Low Power FM stations.  In one case, the FCC allowed a pirate operator that they had shut down for an illegal operation to then resume operations under Special Temporary Authority (apparently following Congressional intervention).  In another case, where protests were lodged about the sale and probable format change of a noncommercial station, the FCC directed the opening of a special filing window for an LPFM in that community to provide a replacement service.  While the motivation of the FCC in each case may have been laudable, do these cases establish expectations on the part of other similarly situated parties that cannot be met in future cases?

According to a news article, the FCC, at the urging of Senator Harry Reid, the Senate Majority Leader, authorized a pirate radio station to continue operations under Special Temporary Authority until the next low power FM application window opens.  After first shutting the station down for operating without a license, the FCC then permitted the station to resume operations to provide a local service to a small Nevada community.  According to the article, the expectation is that the operator would file for a permanent license once the FCC opens a window for filing applications for new Low Power FM stations.  While service to the Nevada community may be laudable, doesn't this decision encourage others to start pirate stations in unserved communities, and then ask that their service be permitted to continue under temporary authority if the FCC finds them and shuts them down?  And even if the FCC would allow such operations, these process puts the parties operating at risk, as they may continue to operate stations, and then they may face a competing applicant during the next LPFM window.  Under the FCC's policies for picking between mutually exclusive applicants, the established party could still end up not being the preferred applicant, and would have to shut the station down - taking away a service that the STA has allowed to become even more established in the community. 

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When was there ever a year where there was more controversy about contests and promotions?  This week, the stories were everywhere about how Boston was shut down by the promotion for a program on the Cartoon Network.  While all the facts are not in on that case, had this been conducted by a broadcaster, the FCC might well be investigating to determine if the promotion violates the Commission's hoax policies, which prohibit the airing of hoaxes that endanger the public by tying up emergency responders.

The FCC already seems to be investigating the contest gone wrong in Sacramento.  According to trade press reports, FCC Chairman Martin asked the Enforcement Branch of the FCC to review the contest that resulted in the death of a participant.  While the FCC may investigate any matter, what is it that they are looking for in connection with the Sacramento contest?  Certainly, the contest  was a tragic event.  And there is the possibility of civil liability from the lawsuit that was filed last week.  But not every action by a broadcaster can or should be the subject of FCC action.  The FCC has never become involved in libel or slander cases, leaving them to the jurisdiction of the civil courts.  Nor has the FCC become involved in cases of personal or property damage from accidents or injuries caused by broadcast vehicles or other equipment.  Again - those matters are left to the Courts.

 

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The new Congress has started its oversight of the FCC, and one of the first topics to be brought up is the reintroduction of the Fairness Doctrine. Presidential candidate and head of the House of Representatives Domestic Policy Subcommittee of the House Government Reform Committee, Dennis Kucinich, was the first to call for hearings about the reintroduction of the doctrine.  Others have joined in that cry, including it in a bill introduced in the House and Senate to reform the media ownership rules. But do these perhaps well-intentioned Congressmen really remember what the Fairness Doctrine meant? Basically, bland broadcasting.

The Fairness Doctrine was, for the most part, declared unconstitutional by the FCC in the late 1980s (though some limited aspects of the policy have persisted until very recently). The Commission decision finding the Doctrine to be unconstitutional made sense, as its application clearly abridged the free speech rights of broadcasters. Basically, the Fairness Doctrine required fair and balanced coverage of all controversial issues of public importance. While that may sound like a good goal (one good enough to be adopted by Fox News), in fact it resulted in bland programming. 

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Yesterday, we wrote about a government task force, in which the FCC is playing a starring role, to study the media's impact on obesity.  Now, press reports indicate that violent programming on TV may be the subject of Congressional scrutiny this year.  An LA Times report cites a number of influential lawmakers as wanting to initiate a government review of violent programming and whether the FCC should regulate that programming.  A study from the FCC on violent programming is expected soon.  That study, coming on the heels of one released by the Parent's Television Council, which we reported on here, may well fuel this Congressional action.

There seems to be an unending list of complaints about the broadcast media, and for each complaint, there seems to be someone ready to introduce a law to do something about it.  Broadcasters need to be diligent and restrained in their conduct, as one Janet Jackson-like incident could result in new legislation getting the momentum necessary to become something more than a line in a campaign speech.  In an editorial, Broadcasting and Cable has urged such restraint.  With an election less than two years away that already appears to be featuring an unprecedented number of Presidential candidates and a large number of fiercely contested Senate races, no one wants to become that campaign issue that results in new regulations on broadcaster's freedoms. 

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About this time every year, predictions are offered as to what will happen in the coming year.  Since everyone else does it, we've offered our own predictions as to what Washington has in store for the broadcast industry in 2007.  Find a copy of our predictions in the memo on our firm website, here.  The advisory offers our thoughts on many of the regulatory issues affecting broadcasters that may well come out of Washington this year.  Our observations are offered on the status of considerations including multiple ownership, the digital television transition, payola, indecency, Internet radio and even the political broadcasting rules. 

Let us know if you think our crystal ball is a little cloudy.

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In a report issued last week, the Parent's Television Council submits that there has been a significant increase in violent programming on television since 1998.  The report contends that violent programming has increased, and become more graphic and more sensationalized.  Will this report  mark the beginning of a new attempt to regulate television programming?

The FCC, because of a requirement imposed by Congress several years ago, already asks television broadcasters to report in license renewal applications all complaints they have received about violent TV programming.  Thus far, this question has not resulted in any action against any broadcaster.

The PTC has also been involved in the efforts to make the FCC take a more aggressive stance against indecency.  In fact, on it's website, it currently has a headline suggesting that readers file a complaint with the FCC about the appearance of the "F Word" on a spectator's tee shirt in one of the NFL telecasts of this past weekend. 

 Thus, violence may well join the growing list of programming issues (including indecency, children's educational programming, and advertising relating to unhealthy food) about which broadcasters may need to be concerned in the future.

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Chairman Martin yesterday announced the appointment of a new Chief of the Media Bureau, the FCC Bureau which directly regulates broadcasters.  The Media Bureau processes broadcast technical applications, approves sales of stations, and takes the first draft of most policy issues which affect broadcasters.  Donna Gregg, who has held that position since 2005, is moving on to become the policy adviser to the US Delegation to the World Administrative Radio Conference. 

The new chief, Monica Shah Desai, is an FCC veteran, who most recently was the Chief of the FCC's Consumer and Government Affairs Bureau, the Bureau responsible for dealing with consumers and other governmental agencies - presenting, explaining and often implementing the FCC's positions and programs.  That bureau also works to develop consumer policy to be implemented by other Commission bureaus.

What will this change in leadership mean to the broadcaster?  Probably, not much.  Many remember the long Media Bureau leadership of Roy Stewart, who was very visible around the country, meeting with broadcasters, and exerting a long institutional memory and strong policy position on broadcast matters.  Under Chairman Powell, the Media Bureau also was very visible developing policy proposals.  In one of those cyclical variations that the FCC routinely goes through, in recent years, more decision-making has been centered on "the Eighth Floor," i.e. among the FCC Commissioners.  Whether a new Media Bureau chief changes that recent dynamic remains to be seen. 

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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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By January 10, 2007, all radio and television broadcast stations, both commercial and noncommercial, must prepare and place in their public inspection files a list of important issues facing their communities, and the programs aired in the months of October, November, and December dealing with those issues. These Quarterly Issues Programs lists are the only legally required documents that demonstrate how a station has met its public service obligation to its community of license and service area. The failure to have a complete set of Quarterly Issues Programs lists that were prepared and placed in the station's public file at the proper time can lead to significant fines at license renewal time. Moreover, the failure to produce and document programs responsive to community needs could cause even greater problems for a broadcast licensee. See our bulletin on quarterly issues programs lists for more information. 

Also by January 10, 2007, television stations (including Class A television stations) must place in their public inspection files and file with the FCC an FCC Form 398 Children's Television Programming quarterly report detailing the core children's programming aired in the fourth quarter of 2006 serving the educational and informational needs of children.  By this date, stations must also prepare and place in their public inspection files documentation sufficient to demonstrate their compliance with the limitations on the amount of commercial matter during children’s programming. 

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Just a reminder that comments on the Commisison's proposed DTV Table of Allotments are due by January 11, 2007.  The Commission's Seventh Further Notice of Proposed Rule Making (“NPRM”) requests comment on the proposed new DTV Table of Allotments, which has been assembled as a result of the DTV channel election process.  This proposed Table assigns a channel for each TV station and will ultimately replace the existing Table at the end of the DTV transition as the definitive Table of Allotments. 

Interested parties, including stations seeking to change their alloted DTV channel or reporting inaccuracies in the proposed Table, must submit comments by January 11, 2007.  Reply Comments are due by February 12, 2007.  See our October 24th blog entry under Digital Television for more information about the NPRM.

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

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

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

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Until late 2004, Section 312(g) of the Communications Act provided that the license of any station that had been off the air for more than one year would automatically be forfeited.  In December 2004, Congress amended the law, allowing the FCC discretion to reinstate such licenses "to promote equity and fairness."  In a decision issued today, the FCC actually used that discretion and reinstated the license of a station that had been off the air for several years - giving at least some hope to licensees who are forced by circumstances beyond their control to be off the air for more than a year.

The case decided today, while giving hope to licensees, shows that it takes a compelling case for the FCC to exercise its discretion and reinstate an expired license.  The station involved in this decision was located in the Virgin Islands.  Its tower was destroyed by one hurricane and, after the station had been rebuilt, three more hurricanes substantially damaged the station, knocking it off the air.  In addition, the principal shareholder of the company died, and the company had made plans to move to another island.  In these circumstances, the FCC exercised its discretion and reinstated the license.  So, while the discretion will not be exercised freely (in fact, the FCC has turned down other requests since the law was changed), this case shows that stations subject to severe natural calamities have hope of preserving their licenses.

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In several recent actions, the FCC has imposed severe fines on broadcast licensees for operating auxiliary facilities without a license.  These actions highlight the importance of insuring that your broadcast stations have all of the licenses that they need to operate the technical facilities that they are using. 

In a decision issued today, the FCC fined a Regent radio station $7000 for failing to file a required form on a timely basis and for operating an FM translator station without authority.  According to the decision, Regent had inadvertently failed to include the translator on the renewal application for the main station.  Seven months later, it discovered the oversight, filed the renewal, and requested temporary authority to continue to operate the station.   The Commission imposed a fine of $3000 for failing to timely file the renewal, and $4000 for operating for the 7 months without authority.

Two weeks ago, the FCC released another Notice of Apparent Liability, proposing a $6600 fine for the late filing of two renewal applications for earth stations used by a public television licensee.  One renewal was filed about 2 months late, the second about 2 years late.  The FCC again imposed fines both for the late-filing, and for the operation without authorizations for the operation during the period after the licenses had expired and before the late renewals and STA requests were submitted.

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

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

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

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At its open meeting this morning, the FCC unanimously adopted a Report and Order streamlining the process of modifying the community of license for FM and AM stations.  According to the comments at this morning's meeting, and the Commisison's News Release, the Order will do the following:

• Allow AM and FM stations to seek a community of license change on a first-come, first-serve basis on an FCC Form 301 minor modification application.  Previously, AM stations were required to wait for a filing window, and FM stations had to endure a rule making proceeding before it could file a change to the community of license.   Such changes will be allowed on a Form 301 application if they are mutually exclusive with the station's daytime facilities, and must include a 307(b) showing demonstrating that the change in community is in the public interest. 
• Require local public notice by FM stations to both the community it is moving into and the community that it is leaving.  The proposed community of license changes will also be published in the Federal Register and no action will be taken for 60 days in order to allow for public comment.
• These community of license procedures will extend to noncommercial educational licensees as well.
• The rule making filing fee will be required at the time that an applicant files a Form 301 application.
• Allow electronic filing for allotment proceedings.
• Defers consideration of a limit on the number of proposals that can be filed simultaneously until the Media Bureau can evaluate the impact of the new rules.
• Leaves unchanged the current case-by-case review of proposals to relocate a community's sole local service to be another community's first local service.
• And finally, the freeze on FM rule makings will be lifted when the new rules become effective, which will be 30 days after publication in the Federal Register. 

In addition to lifting the freeze that has been in place for a year and a half, this streamlining Order will greatly accelerate the process of modifying a station's community of license.  Previously, the two-step process of a rule making followed by an application for the change of community of license of an FM station took an estimated two years to complete.  Such changes for AM stations took twice that time, due to the fact that applicants had to wait for the FCC to open a filing window for such changes.  More details will be available once the text of the Order is released, so check back in the future. 

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Just a reminder that there will be a freeze on the filing of minor modifications for commercial and noncommercial FM radio stations from November 6 through November 13, 2006.  This week-long filing freeze on minor mods corresponds to the opening of the filing window for the submission of FCC Form 175 short form applications for participation in FM Auction No. 68.  As we reported earlier on this blog, Auction No. 68 will offer 9 construction permits that were previously unsold from earlier FCC FM auctions.   The filing freeze will allow auction applicants to specify preferred site coordinates for these nine allotments as part of their short form applications.  The filing window will officially open on noon ET Monday, November 6th and close at 6PM ET on Monday, November 13th, so plan your filings accordingly. 

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According to the agenda for its meeting to be held on Friday, November 3, the FCC will finally adopt changes to its rules on FM allotment procedures and on changes in the city of license of broadcast stations.  The FCC issued its Notice of Proposed Rulemaking in this proceeding in June 2005.  This proceeding includes a proposal to make a city of license change a "minor change," which would not require a rulemaking for FM stations, and would not require a window filing for AM stations.  This could speed the processing of such changes, allowing stations to upgrade and otherwise improve their facilities.

The proceeding also deals with a number of other procedural issues, including whether a station should be allowed to change its city of license if it is the only station licensed to a community (generally prohibited under current rules), and whether the proponent of a new FM allotment should be required to file its Form 301 application for a construction permit (and pay the required filing fee) at the same time as it files a Petition seeking the new allotment (intended to encourage only serious applicants for new channels).

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Today, the  FCC issued a Public Notice announcing a new FM Auction to be held on March 7, 2007.  This auction, designated Auction No. 70, will offer 124 construction permits for new FM allotments around the country.  A copy of the FCC's Public Notice is available here and a list of the 124 available allotments is available here.  Please note, this auction is separate and apart from Auction No. 68 which the FCC announced in August, and which offers for sale nine construction permits that remained unsold after two previous FM auctions.  Auction No. 68 is slated for January 10, 2007, and a listing of the nine allotments the FCC can't give away is available here.

With regard to Auction No. 70, the FCC's Public Notice solicits comments on the opening prices set for these 124 FM allotments, as well as on the rules that the FCC proposes to use for the auction.  Notably, the FCC proposes to not allow the withdrawal of any bids once a round of bidding has closed.  Those with auction experience may recall situations from previous auctions where standing high bids were withdrawn in the late rounds of bidding, leaving competing bidders scrambling, and often leaving those permits unsold at the conclusion of the auction.  Comments on the proposed opening bids and auction rules are due by October 5, 2006, and replies by October 13, 2006.  Once the comment period has run, more information regarding the timing of applications and the submission of upfront money to participate in the auction will be forthcoming.

 

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Today, Robert M. McDowell was officially sworn in as a member of the Federal Communications Commission, giving the FCC a full complement of five commissioners, and giving Chairman Kevin J. Martin a majority with three Republican members.  A copy of the FCC’s News Release announcing the swearing in is available here.   McDowell’s addition returns the Commission to full strength and will enable the FCC to tackle a number of significant outstanding issues facing broadcasters, such as multiple ownership, multicast must-carry, payola, and indecency.  Previously, David D. Oxenford discussed the various outstanding broadcast issues that might be on the Commission’s hitlist.  A copy of his April 2006 Bulletin is available here.

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