Broadcast Law Blog : Broadcast Lawyer & Attorney : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

The President has nominated Thomas Wheeler as the next FCC Chairman, to become effective after confirmation by the US Senate. What does this mean for broadcasters? As we have said before, one never really knows what issues will drive a Chairman’s agenda. For this Chair, some issues are clear – like dealing with the incentive auction to reclaim some TV spectrum for wireless use, which is inevitably marching forward. Other issues are forced on the FCC – like dealing with the indecency issues still pending after Supreme Court remand, or the multiple ownership quadrennial review still pending at the Commission while waiting for the MMTC study on the effects of media cross ownership on the ability of minorities and other new entrants to get into broadcast ownership. And some are issues that for one reason or another capture the interest or attention or concern of the FCC Chair. Usually, these issues don’t become clear until after the Chairman assumes his position, but that has not stopped many in Washington from speculating what the new Chairman will do once he is confirmed.

Interestingly, the speculation ranges the gamut, from Free Press fearing that he will be too friendly to big business because of his past service as the head of two trade associations – NCTA (the cable television industry trade association) and CTIA (the wireless industry association), to the statement of Republican leaders of the House Energy and Commerce Committee, fearing that he will impose too many regulations on these same big business organizations. In short, the perspective on the nomination seems to be based, at least in part, on the initial perspective of those who muse about what it means.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Two weeks ago, comments were filed in the Commission’s proceeding examining whether to adopt a more relaxed view of the foreign ownership provisions of the Communications Act (see our article about that proceeding here). While the Communications Act limits foreign ownership in communications licensees to 20% (or 25% of a licensee holding company), the Act also allows the Commission to allow greater foreign ownership if it would not adversely affect the public interest. In areas other than broadcasting, the Commission has routinely allowed ownership of more than 25% of a communications licensee, but the limit has been strictly enforced in the broadcasting world. Many of the comments filed in response to the Commission’s request made exactly that point - that in a multimedia world, why should a wireless company or a cable programmer be allowed to be foreign owned, while a competing broadcaster can't have foreign investors holding more than 25% of its equity?  In what is perhaps a telling indication of where the FCC is going, the statements of three FCC Commissioners, in connection with a recent FCC decision to further streamline the approval process for alien ownership in excess of the 25% limitations in FCC-regulated areas other than broadcasting, suggested that the relaxation of the limits should also be extended to broadcasting.

Two weeks ago, in relaxing rules on the investment of non-US companies and individuals in common carrier licensees and those in certain other non-broadcast services, the Commission vastly simplified the reporting and approval process for alien ownership in excess of the statutory limits. The Commission already had in place a policy of reviewing potential foreign ownership in non-broadcast companies where, through a petition for declaratory ruling, a company could seek FCC approval for ownership, and even control, of these entities by non-US citizens or companies. In the recent proceeding, the FCC made such investment even easier, in very general terms easing certain reporting requirements for alien ownership where the interest of a specific alien investor was less than 5% (10 % in some instances), and also allowing an alien individual or group, once approved, to increase ownership without further approval (if the interest is a minority ownership interest, to 49%, and if it was controlling, to 100%), as long as the interest in possibly doing so is revealed in the original request for approval. Allowing investments by affiliates of the foreign owner, and allowing the company that is approved to seek additional licenses, all without additional approvals, was also allowed in many instances. All these changes were allowed subject to the FCC's right to reexamine any holdings if specific issues were raised.  But what was most interesting to those in the broadcasting industry were the statements of three of the Commissioners praising these relaxations, and the hopes that the examination of applying these reforms in the broadcast world would move forward quickly.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's time for our annual April Fools Day warning – be careful with on air pranks prepared especially for the day. This year, with thetragedy caused by the Australian morning show hosts calling the nurse for the Duchess of Cambridge, broadcasters have an example of what can happen when an on-air prank goes wrong. Where harm is caused, lawsuits may follow, and stations could become a target if someone is hurt as a result of a station's broadcasts. But not only do stations need to worry about potential civil liability in a case like this, the FCC itself has a rule against on-air hoaxes - and, of any day in the year, April 1 is the day that the broadcaster is most at risk. The FCC's rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused. Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties." So even if the prank does not cause any injuries, the mere fact that an on-air report was false and it ties up first-responders, is enough to lead to FCC liability. 

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood. In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies. In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  While the rule has been rarely enforced since, it is on the books and ready for use against any station that ties up police and fire companies when there is no emergency.   So FCC fines are possible on top of any damages that may result from a prank-gone-wrong. Have fun, but be careful out there next Monday!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children's television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station's public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC's proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This past week, both FCC Chairman Julius Genachowski and Commissioner Robert McDowell have announced that they are leaving the FCC in the near future. While their exact departure dates are uncertain, the press is already buzzing with anticipation about who will next lead the FCC, and who will take the place of Commissioner McDowell. The President gets to appoint the Chairman and new Commissioner, but his choices have to be approved by the US Senate. While there have from time to time in the past been delays in the approval process of new FCC Commissioners, with one Democrat and one Republican leaving, there is some speculation in Washington that the confirmation process can move forward in tandem, and hopefully without significant undue delay.

In the interim, the FCC can continue to do business with three Commissioners should the replacements not be confirmed before the departures.  But what will this change in the FCC mean for broadcasters? In short, the answer is that it is probably anyone's guess. There is very little that can be discerned in advance about the impact of the selection of any Commissioner. Certainly, a new Chairman can have a significant impact in shaping the agenda pursued by the Commission, but one never knows exactly what that agenda will be until the Chairman takes his or her seat and starts to act. Sometimes the results are surprising as with the last Republican Chair who introduced many very regulatory proposals to govern broadcasting (see, for instance, the adoption of the Form 355 for television that, had it gone into effect, would have required detailed, voluminous reporting of all sorts of information about public interest programming by television stations; as well as still pending proceedings on sponsorship identification obligations and the initiation of a vigorous anti-indecency regime). 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The limits on the ownership of broadcast stations by those who are not US citizens is being re-examined by the FCC according to a recent Public Notice. Under Section 310(b)(4) of the Communications Act, foreign ownership of a broadcast licensee is limited to 20% of the company's stock, or no more than 25% of a parent company of the licensee. Over the years, there has been a significant body of precedent developed about applying these caps to other business organizations, including LLCs and Limited Partnerships.  But the caps remain in place, limiting foreign ownership.  While the statute gives the FCC discretion to allow greater amounts of "alien ownership", the FCC has not exercised that discretion for broadcast companies (though, for non-broadcast licenses, the FCC has many times found greater percentages of foreign ownership to be permissible). A coalition of broadcast groups last year filed a request asking that the FCC exercise the discretion provided under the Act, and consider on a case-by-case basis whether alien ownership combinations in excess of 25% should be permitted. The Commission has now asked for public comment on that proposal. Comments are due on April 15, with replies due on April 30.

Why is this important? Many broadcasters have pushed for revisions in the alien ownership limits for decades – seeing foreign investors as a potential source of capital to allow new companies to buy stations or existing companies to expand their holdings. Many minority advocacy groups, too, have thought that relaxation of the alien ownership rules would provide more sources of capital for minority owners to get into the broadcast game. Spanish language broadcasters, in particular, see broadcasters and other investors from other Spanish-speaking countries as being likely sources of new investors in broadcast companies or new buyers for US broadcast stations. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

February is almost upon us, and it brings a host of regulatory obligations for broadcasters – as well as the filing deadline for those interested in pursuing new FM channels in an upcoming auction, and a number of opportunities to comment on important FCC proceedings. The week before last, TV NewsCheck published our latest quarterly update on the regulatory issues facing television broadcasters – and these include several with February dates. Most importantly (at least in the short term), there is the obligation for television broadcasters to upload to their Online Public Inspection file all documents created before the August 2 effective date of the rules (but for documents relating to political broadcasting).   So documents that had been kept in paper – like Annual EEO Public Inspection File Reports and Quarterly Issues Programs Lists – need to be in the Online Public File by the beginning of the month. 

In the longer term, while not due in February, comments to be filed this Friday (January 25) on the television incentive auction process, will need to be analyzed in preparation for the Reply comments due on March 12 in this most important proceeding which may well define the composition of over-the-air television in the coming years. Comments on the FCC proceeding on expanding the information gathered in the Form 323 Biennial Ownership Reports are also due in February – just in time for Valentine's Day on the 14^th. 

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The FCC this week released a Public Notice announcing comment deadlines on rulemaking proposals relating to the FCC Biennial Ownership Reports. The first set of proposals deals with a Notice of Proposed Rulemaking issued earlier this month, proposing a series of changes to the process for filing these reports. The proposals include a requirement that the all persons with attributable interests in broadcast stations get a unique FCC Registration Number (an "FRN"), which will require filing their Social Security numbers with the FCC. The second proceeding is one released in 2009, but is only now being published in the Federal Register triggering the comment deadline. This proposal suggests that certain nonattributable owners be identified and reported on these Biennial Ownership Reports despite their nonattributable status. Comments on these proposals will be due on February 14, 2013, with reply comments due on March 1, 2013.

The Biennial Ownership report, in its current form, was initially adopted in 2009.  The new reports were to gather information not just about the ownership of broadcasters, but also about their race, ethnicity and gender, so that the FCC could get a better handle on the presence of minority owners in broadcasting.  The first report on the new form was to be filed in November 2009, but that deadline was pushed back to July 2010 when issues with the new form developed.  The second Biennial Ownership report was to have been filed by commercial stations in late 2011 (two years after the original date), and the next is due later this year.  The information in the first two reports was compiled into the information that formed the basis of the FCC's December request for comments on the impact of proposed changes in the multiple ownership rules on minority ownership. 

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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

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

General Broadcast Issues

 

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

 

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

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As the ancient Mayans appear to have been wrong, and 2013 is indeed happening, we have once again published our broadcaster's calendar to remind broadcasters of the dates that they need to keep on their radar to make sure that they remain in legal compliance in the coming year.  Like seemingly every year, it is a busy one, with ongoing radio and television license renewals still being filed and processed by the FCC, as well as the normal regulatory deadlines - EEO public file reports, quarterly programs/issues lists, children's television reports, noncommercial ownership reports, regulatory fee filing deadlines, and children's television reports. While not a major election year, there are at least two governor's elections, several big city mayoral races, and several recently vacated Senate seats (including the Massachusetts seat that is not mentioned on the calendar as that soon-to-be vacant seat has only recently become evident), so there will be lowest unit rate issues to be considered in a number of states.  There are also special regulatory deadlines coming up this year, including new obligations for captioning of TV programming repurposed to the Internet, an FM auction in April (with filing deadlines in February), and a Low Power FM window expected in October.  We've also included in the calendar reminders about the filing dates for SoundExchange royalties for audio streaming. And don't forget your obligations to ASCAP, BMI and SESAC, which are not included on the calendar.

While the calendar is not exhaustive, it gives the broadcaster a place to begin in planning their regulatory compliance for 2013.  Check out our broadcaster's calendar, and be ready for the regulatory obligations in the year ahead.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The care and feeding of the broadcaster's public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations' files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I've conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.

The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children's television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station's compliance with the Children's television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.

Continue Reading...

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

What should broadcasters worry about from an FCC inspection? A few weeks ago, I was speaking at the Kansas Association of Broadcasters' annual convention. At the convention, I attended a session conducted by an FCC field inspector and the engineer who conducts the "alternate broadcast inspection program" ("ABIP") for the KAB.  We've written about the ABIP program before, and how beneficial participation in that program can be for stations that want to avoid an FCC inspection and possible fine. At the convention, these inspectors talked about the issues on which the FCC is focusing in recent inspections. These issues are not to the exclusion of other common issues that we have written about before – like the need to keep the public file updated, the completion of quarterly issues programs lists, the need to maintain operational an EAS encoder/decoder, and the requirements for manned main studios. But there are other issues, including some that have not been a focus in the past, that now require broadcasters to be on guard.

One issue deals with broadcast auxiliaries. These are the licenses that broadcasters use in connection with their main studio operation. This includes licenses like Studio-Transmitter Links (STLs) that relay programming from the studio to the transmitter site and Remote Pickups (RPUs) that convey remote information back to the studio. During the summer, the FCC fined several stations for using auxiliaries without a license in amounts up to $20,000 (here and here), and issued a fine for $8000 for a station using an STL at a location different than that set out on the STL's license. Have you moved a main studio in recent times? If so, did you amend your STL license to specify the new studio location – which is most likely the new transmit site for the STL? If you haven't, and the FCC catches you, you may be looking at a fine.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

For one blog entry, I'll depart from our usual discussion of legal issues. There is plenty of time to analyze the effect that last night's election will have on the broadcast industry, and to discuss other issues of importance to broadcasters. Instead, as we approach the holiday season, I thought that I'd go into another direction. I've just returned from the NJ coast, where my family has a home that was partially flooded by Hurricane Sandy. While we had some property damage, it was nothing compared to the destruction I saw in other neighborhoods on the Jersey Shore. Seeing the number of people affected by the storm, and hearing the radio reports from locations up and down the coast where the destruction was far worse, made me think that I should talk a little about the good things that the broadcast and communications industry does, and how those in the industry can help take care of their own.

It has been great to see the many TV networks broadcasting programs with the specific purpose of promoting hurricane relief. And, in a post that we'll put on the blog later today, the FCC has just made it easier for noncommercial broadcasters to contribute in these. Being on the ground at the NJ shore for a few days, without electricity other than what was provided by a small gas-powered generator, demonstrated to me the power and importance of portable media – including radio. Throughout my weekend at the shore, we could get news and entertainment from a battery-powered radio and the radio in our car. Together with tidbits of news from Facebook posts, a local list-serve and the few other sites that we could get on our mobile phones (for as long as the phones stayed charged) in an area where the mobile networks were often slow due to the high demand for wireless service as the storm had ruined many landline connections  – these were our links to the outside world. Radio kept going, providing updates of all that was going on in the area. One local radio station was particularly noteworthy, as it was operating even though it did not have operating phones or email access. Yet it continued to broadcast, conveying information as to how people could help each other. That information was collected from people posting on the station's Twitter feed. The station truly showed how convergence of electronic and broadcast media can really work well together. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An uncertainty for the broadcast lending world was by removed by a decision of the US Court of Appeals issued last week. In 2010, a US District Court considering the bankruptcy of Tracy Broadcasting Corporation ruled that a security interest in the proceeds of the sale of a broadcast license could not be enforceable after a bankruptcy action had commenced unless the sale agreement had been signed prior to the bankruptcy – a situation that almost never occurs. As the FCC forbids taking a security interest directly in an FCC license, the practice of lenders for over 20 years, based on past precedent of the Commission, is to secure their loans by a security interest in the proceeds of the sale of the license. When the Tracy case was decided by the District Court, many lenders expressed their concern as to whether that long-standing precedent was still valid. We wrote about the Tracy decision and how it had been rejected by other courts as its reasoning was inconsistent with the prior FCC precedent.

Last week’s decision of Court of Appeals directly overturned the District Court decision.  The Appeals Court looked at the District Court decision, and the economic reality of the situation, and determined that a security interest in the proceeds of the sale was indeed enforceable after bankruptcy, even if the sale agreement did not come into being until after the bankruptcy petition had already been filed. The District Court had looked at certain provisions in the bankruptcy code providing that a creditor could not acquire a security interest in property or rights that arose after the bankruptcy proceeding had commenced. The District Court reasoned that an interest in the proceeds of the sale of a license could only arise after a sale agreement was signed and approved by the FCC. Thus, if the sale and FCC approval did not occur until after the bankruptcy, the rights to the proceeds did not arise until after the bankruptcy, and thus there could be no security interest in the proceeds of that sale. The Court of Appeals rejected that reasoning.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

October is a very important month in the regulatory world, and broadcasters need to be aware of the regulatory deadlines that have already arisen this month, or which will come up in the next few days. This week, TV Newscheck published our latest summary of the state of many of the most significant legal issues facing TV broadcasters at the FCC and in Congress. In looking at the list, it is clear that this month is particularly important for broadcasters. For instance, this is the month that most TV stations outside of the Top 50 markets will first have to deal with the online public file – having to post their Quarterly Issues Programs Lists and Children’s Television reports on their sites. The FCC this week issued a Public Notice of increased functionality of the online public file, partially to handle these obligations. Of course, radio stations also need to have their Quarterly Issues Programs Lists in their paper public file this week – as the lack of these lists is source of many of the fines that are issued during the license renewal process.

Also this month is the start of the obligation for Internet captioning of any programming that had previously aired with captions on TV. The obligation applies to any full TV program that was captioned when broadcast over-the-air after September 30 and is then posted in full on the Internet. The FCC just issued a reminder about this obligation, emphasizing its importance.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This past weekend saw the passing of one of the great advocates for broadcasters in the last few decades – Ann Arnold, the President of the Texas Association of Broadcasters. Ann has headed the TAB for over 20 years, in the process making it one of the premier state broadcast associations. But Ann was more than just an association head – she also was a fierce defender of broadcasters and the service they provide to their listeners. Under her leadership, the TAB has fought against governmental attempts to over-regulate broadcasters, while also being very aggressive in promoting the role of broadcasters in getting important information out to their communities. Ann had been a nationwide leader in efforts to improve the EAS system, recognizing that broadcasters needed a working system to alert their audiences to impending threats. The TAB also was a leader in promoting a journalist shield law, helping broadcasters and other news outlets to protect vital sources.

I worked with Ann for over 20 years, and consider her to be a true friend – one who will be missed both personally and professionally. She was a central presence at all TAB events, right up to the most recent TAB annual convention held in August in Austin. Ann was there from the early morning breakfasts to the late-evening banquets, always surrounded by people seeking counsel or just a hug and a smile – which Ann could always be counted on to provide. 

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

About 6 years ago, I started the Broadcast Law Blog, with a colleague now at the FCC, while at the law firm of Davis Wright Tremaine LLP.  I want to thank that firm for the support that they gave to me and the Blog, which has allowed its readership to grow to heights that I hardly could have imagined when it was started.  Recently, I made a change in law firms, moving to Wilkinson Barker Knauer LLP.  Davis Wright has been kind enough to allow the Blog to follow me, so this is the first of many posts to come at the new firm.  Look for new articles on legal developments for broadcast and digital media issues from me and my new colleagues at Wilkinson Barker.

All of the old articles that I wrote will continue to be available in the archives on the Blog.  Some of the old articles written by other attorneys at Davis Wright will be removed from the site in the very near future, but in most cases I hope to provide links to articles on related topics in their place.  In the coming weeks, I’ll also be trying to catch up with the many legal developments that took place in the last two months – including questions that have been raised by the effective date of the online public file for television stations, a number of music licensing actions and decisions including a decision on the constitutionality of the Copyright Royalty Board and decisions that could impact various rights and interests of music publishers and music users, a decision by the FCC on noncommercial LMAs, and a number of interesting fines and enforcement actions that have come out of the Commission.

So we thank you for your past readership and support of the Blog, and hope that you will continue to follow us in the future.  And look for information from us in other places as well.  If you haven’t already done so, check out the mobile version of the Blog so that you can read current articles on the go.  Follow me on Twitter for updates on articles on the Blog and other related legal issues, and watch for a Facebook page (coming soon) with many similar posts.  Certainly let us know if you have questions or comments, post them here or contact me directly.  And, if you’re even looking for a lawyer to assist on the issues that we write about, let us know!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

FCC fines for violations of the FCC rules dealing with contests have been common in the last few years. Because of these fines, we recently conducted a webinar for the Kansas Association of Broadcasters, discussing the requirements of FCC rule Section 73.1216 which regulates the conduct of station-sponsored contests.  We also discussed what should be addressed in contest rules, issues with contests that advertisers themselves sponsor, and considerations that stations should undertake to avoid civil liability when conducting contests.  Other legal issues that should be considered in any contest or lottery promoted on a station were also covered.  The slides from our presentation, outlining the legal issues that we discussed, are available here.

What are some of the issues we discussed?  We recently wrote about fines of $22,000 for a station online contest, promoted on the air, without the station announcing all of the material rules on the air.   Even imprecise contest rules have brought fines of $4000, as did a contest not conducted according to the rules announced on the air.  Beyond these issues, broadcasters have to consider other legal liability that can arise for injuries to contestants - highlighted by the Sacramento case of a few years ago. Being careful in promoting third-party contests, like those conducted by advertisers, particularly compliance with lottery laws, is also important.  Observe the rules and be careful - as there are many potential traps for those who are not prepared. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Senate on Monday approved, after months of delay, the nominations as new FCC Commissioners of Democrat Jessica Rosenworcel and Republican Ajit Pai.  Once they are sworn in and assume their new jobs in the next few days, this will bring the FCC up to full strength with 5 seated Commissioners for the first time in a year.  Rosenworcel comes from having worked for the Senate Commerce Committee, which oversees FCC regulation.  She previously worked as a legal assistant to former Commissioner Copps at the FCC.  Pai has also worked on the Hill and at the FCC, so both have experience with issues before the Commission.

So what do these nominations mean for broadcasters?  Probably, not much in the immediate term.  With the two new Commissioners being added to the FCC, the balance of power remains in favor of the Democrats.  But, as we have seen over the years, most Commission decisions aren't decided on a partisan basis - in fact most are unanimous.  In the recent past, there are a few decisions where the Commission has been somewhat divided, with Republican Robert McDowell tending to take a somewhat more deregulatory position, as in connection with the recent ruling on online public inspection files for TV stations.  But party affiliation is not necessarily a guide to a Commissioner's positions, as many of the proposals for broadcast re-regulation first arose during the Republican administration of FCC Chairman Kevin Martin (see, for instance, the proposals for localism regulation and the original proposal for an online public file adopted in 2007). 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the last few weeks, I've twice had the occasion to summarize the legal issues facing broadcasters, and it amazes me at how many issue there are and, how quickly the issues are changing. On April 12, I did an update on these issue to the Oklahoma Association of Broadcasters at their annual convention - the PowerPoint slides for which are available here.  The week before, we prepared a summary of the issues facing TV broadcasters that was published in TV NewsCheck, here.  It's just over two weeks later, and already the issues that we highlighted have changed.  Since we we wrote the TV NewsCheck article, a new issue for television broadcasters has arisen as to the definition of an MVPD - an issue that could have ramifications on all sorts of issues - including rules concerning must carry and retransmission consent.  In recent weeks, the FCC has also revised its EAS rules to allow text-to-speech systems to read the alerts that come in from FEMA, the National Weather Service and other authorities.  And the FCC meeting that will be held later this week  will deal with many issues of importance to commercial broadcasters - including spectrum sharing (the first step in the Commission's plan to clear some of the TV band so that it can be repurposed for wireless users) and the online public inspection file.  Also on the agenda is a noncommercial item that will look at broadcast stations raising finds for third parties.  That topic is an interesting one - coming only a short period after one US Court of Appeals Circuit suggested that Federal prohibitions on noncommercial radio stations accepting ads from political and issue advertisers were unconstitutional.

In discussing issues with the Oklahoma Broadcasters, there were still many questions about the FCC requirement for a nondiscrimination certification in commercial station's advertising contracts (see our summary of this issue here and here).  Also a hot topic, particularly in light of the discussion of the online public file, was the question of what needs to go in the public file, and how long it needs to be retained (see our Checklist for the Public Inspection File, here).  The rules for on-air contests, and the required on-air disclosures of the rules for such contests, were also much discussed (see our summaries here and here).  And, of course, with the November election looming, questions about broadcasters' political obligations were on the minds of many (see our Guide to Political Broadcasting, here).  Many, many issues face broadcasters - and these presentations only touch the surface. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While rumors are flying that the FCC is rushing to adopt its proposals to require that TV stations put their public inspection files online (see our summary of the proposals here), both the FCC and public interest groups are targeting the public files of television stations - looking to copy some or all of those files.  Rumors are that the FCC inspected the public files of all television stations in at least one city - and asked for copies of the complete files to be produced at the FCC within a day or two, in some cases requiring the copying of several file cabinets worth of material very quickly.  Whether this inspection is a one-shot deal or the start of a program to audit the files of TV stations across the country is unclear.  At the same time, public interest groups have been urging their members to inspect TV station public files across the nation, to copy parts of those files, and to post the information that they collect online.  TV stations across the country need to be prepared for these inspections.

Why these actions now?  Some may think that the FCC is just conducting a random audit, while others may suggest that the demand for complete public files is just a fact-finding mission as part of its rulemaking process.  The more suspicious of broadcasters may think that this represents the FCC sending a message that the online public file is coming, and stations may find it easier to accept the online file rather than facing these demands for the instant reproduction of their entire files to be inspected at leisure in Washington. 

Continue Reading...

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

With April Fool's Day only a few days away, we need to repeat our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other jokes prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes - and, of any day in the year, April 1 is the day that the broadcaster is most at risk.  The FCC's rule against broadcast hoaxes, Section 73.1217 of the Commission's Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But, as we've reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Just a reminder to broadcast stations in certain states of several upcoming February obligations.  First up, February 1st is the deadline for Radio Stations in Arkansas, Louisiana, and Mississippi to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory for more information about the FCC's license renewal process.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on February 1st to inform their communities of the renewal filing.  Specific language for the announcements can be found on the Commission's website here, and the post-filing announcements continue on Feb. 16, Mar. 1, Mar. 16, April 1, and April 16.

Second, the next batch of radio license renewals -- which will be filing their renewals on April 2nd -- is Indiana, Kentucky, and Tennessee, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on February 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Feb. 16, Mar. 1, and Mar. 16. 

Third, by February 1, Radio and Television Station Employment Units (SEUs) in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Annual Report on their 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.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Arkansas, Louisiana, and Mississippi will also be filing an FCC Form 396 EEO Report by February 1 in connection with their license renewal filing.

Finally, February 1st is the deadline for Noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey and New York, and Noncommercial television stations in Kansas, Nebraska and Oklahoma to prepare and file an FCC Form 323-E Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will next occur on Nov. 1, 2013.  A copy of our recent reminder to noncommercial stations about the February 1 filing deadline can be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As we reported last week, the FCC has adopted a Report and Order establishing rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA). DWT has now released an advisory with further details about the new rules, which is available here. The new rules govern TV stations, cable systems, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online. The rules also impose new requirements on hardware (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software.

With rules that are so wide-reaching, everyone involved in these businesses needs to understand what the new rules entail.  A summary of the Commission's Order follows below, and please see our advisory for complete details about the new rules. Consistent with CVAA's mandate, the FCC has adopted rules that:

• Extend to all full-length video programming previously distributed on television with captions to require that captioning appears when such programming is displayed online via IP;
• Establish a two-year transition for uncaptioned, archival IP-delivered content that is shown on TV with captions after the new rules’ effective date;
• Require video programming owners to send caption files for covered IP video to video programming distributors and video programming providers along with the program files, or alternatively, inform the distributors–using a mechanism agreed to by the parties–that captions are not required for a particular program;
• Require video programming distributors and video programming providers to enable the rendering or pass-through of all required captions to the end user;
• Require captioning of covered IP video to be of at least the same quality as the captioning that the programming had when it appeared on TV;
• Establish deadlines by which categories of covered IP video must be captioned, as follows:
  • Programming that is prerecorded and unedited for online distribution, when subject to the new requirements, must be captioned within 6 months of the rules’ effective date;
  • Programming that is aired live or “near-live” on TV, when subject to the new requirements, must be captioned within 12 months of the rules’ effective date;
  • Programming that is prerecorded and edited for online distribution, when subject to the new requirements, must be captioned within 18 months of the rules’ effective date;
• Adopt the Society of Motion Picture and Television Engineers (SMPTE) Timed Text format (SMPTE ST 2052-1:2010: “Time Text Format (SMPTE-TT)” 2010 as a safe-harbor interchange and delivery format, but stop short of requiring all covered entities to use this standard;
• Decline to adopt categorical exemptions other than that mandated by the CVAA (i.e., consumer generated programming. which is statutorily exempt);
• Establish procedures by which video programming providers and video programming owners may petition for exemptions from the new requirements based on economic burden;
• Accommodate de minimis failures to comply with the new captioning obligations;
• Adopt procedures for complaints alleging violations of the new rules;
• Decline to adopt specific forfeiture amounts, opting instead to penalize violations based upon the facts and circumstances of each case;
• Permit entities to comply with the new requirements by alternate means; and
• Impose requirements for devices subject to the closed captioning requirements.

Given the scope of the new rules, there will undoubtedly be questions and requests for clarification that arise along the way.  We wll continue to track these new rules and provide further updates on this important issue. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

This afternoon, the FCC released its long-anticipated Report and Order (R&O) setting forth the Commission’s new closed captioning rules for IP-delivered video programming, pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). 

As we explained when the rules were first proposed in September, the CVAA directed the FCC to establish how and when certain IP-delivered video programming must be captioned, as well as the closed captioning capabilities for devices used to view video programming. The R&O adopts closed captioning requirements for owners, providers, and distributors of IP-delivered video programming; a safe harbor technical standard and delivery format for IP video captions; a staggered compliance schedule; complaint rules; and requirements for manufacturers of devices used to view the video programming at issue.

We are currently reviewing this comprehensive rulemaking, and will post our in-depth review next week, both here and on our DWT Advisories page.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In addition to the normal FCC deadlines for routine filings, January brings the deadline for comments in a number of FCC proceedings, and a filing window for new FM applications.  For TV stations, the Commission recently extended to January 17 the Reply Comment deadline on its proposals (summarized here) for an online public inspection file.  Many public interest groups have supported the FCC's proposals to put the public file online, including the political file and new information concerning sponsorship identification information, while broadcasters have expressed concerns about the burden and practicality of an online file with all the information that the FCC is considering.  Comments are also due on January 17 on the related Notice of Inquiry looking into the adoption of a new form to document the public interest programming of TV broadcasters to replace the never-effective Form 355.  Comments deadlines on Petitions for Reconsideration of two other rulemaking decisions - on the adoption of rules allowing AM stations to use FM translators, and the Rural Radio proceeding - are due on January 4 with replies on January 17.  That the FCC only now sought comments on the 3 year old Reconsideration petitions in the AM translator proceeding is unusual, as the issue raised by the reconsideration petitions has also been incorporated in the recent FCC proceeding looking at the relationship between FM translators and LPFM opportunities.

We just reminded broadcasters of the new FM window, where applications for 119 new FM channels can now be filed between now and the January 12 deadline.  Broadcasters also need to remember to complete their Quarterly Issues Programs lists, and place them in their public file, by January 10.  As we've written, there are big fines for stations who forget to complete these reports and have to report their absence at license renewal time.  See our advisory on the Quarterly Issues Programs Lists, here, and also our advisory on Children's Television obligations, including Form 398, that needs to be filed at the FCC by January 10, along with a public file report documenting compliance with the limitations on commercial advertising in children's programming . 

For more information on many of the routine regulatory deadlines for broadcasters, see our Broadcasters Calendar for 2012 here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

What's up for broadcasters in 2012?  What dates do they need to keep on their radar to make sure that they are in legal compliance?  Our broadcaster calendar for 2012 is now available and ready for your review.  It's an especially busy year - with television license renewals beginning and radio renewals continuing, lowest unit charge windows for primary and general elections, as well as the normal regulatory deadlines - EEO public file reports, quarterly programs/issues lists, children's television reports, noncommercial ownership reports, regulatory fee filing deadlines, and children's television reports.  We've even thrown in the dates for the upcoming auction of new FM channels, and a reminder about the the filing dates in connection with SoundExchange royalties for audio streaming.  Check out our broadcaster's calendar, and be ready for the year ahead. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While the FCC is entertaining comments on its proposal to move the public inspection file for broadcast television stations online (see our article here), the existing physical public files of several New York area broadcasters came under examination by the New York Times, according to an article in Sunday’s paper. The article seemed to both make fun of the contents of the required public file, while at the same time noting that the people at several stations contacted by the reporter seemed to be unaware of the Commission’s requirements that the file be made available immediately to anyone who visits a station and asks to see it, and that requiring appointments is not an option. We've written in the past about stations that received substantial fines for requiring a visitor to make an appointment to see a station’s files (see, one case where a commercial TV station was fined $10,000, and another where a noncommercial FM was fined $8000 for a similar violation).  If the NY Times article is accurate, stations need to reexamine their policies and be sure that those dealing with the public know of the location of the file and the fact that it must be made available upon request – no questions asked. For more information about the public file requirements, see our Guide to the Basics of the Public Inspection File for Commercial Stations, here.

The second aspect of the report, poking some fun at some of the weird comments from the public found in the file, reinforces some of what I have been told by broadcasters. At a broadcaster meeting last week, I was told stories of station public files that have expanded exponentially since the FCC added a requirement that the file contain emails from the public, as well as letters. Broadcasters report that the letters from the public can now often take up several drawers of a file cabinet, while the remainder of the file fits in a single drawer. While the Commission has tentatively concluded that these letters would not be required to be included in the electronic online file, the recent rulemaking proposal did suggest that the letters be retained at the station, and that perhaps summaries of the written comments be made part of the online file. In addition, comments were requested as to whether social media posts about station operations be kept in some fashion – even though sites like Facebook and Twitter, by their very nature, keep most of what it posted on their sites for the public to view (see our summary of the proposals here). Broadcasters at my meeting last week were very concerned about the volume of paper that would generate, and the need for manpower to review Twitter feeds and Facebook posts almost around the clock to see if any needed to be placed into the file as they related to the station operations.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

All commercial broadcasters (AM/FM/TV and even LPTV) have to file their Biennial Ownership Reports on December 1, beginning a very busy month in the broadcaster's regulatory world.  December 1 is also the deadline for noncommercial ownership reports to be filed by noncommercial radio stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont, and noncommercial television stations in Colorado, Minnesota, Montana, North Dakota and South Dakota (see our Advisory here).  Annual EEO Public File reports are also due to be in station files for stations in all of the states where noncommercial stations have ownership filings (see our Advisory on the EEO Public File Report here).  License renewals for radio broadcasters in Georgia and Alabama are also due on that date (see our License Renewal advisory here) , as are the Commission’s cut of the ancillary and supplementary revenues made by digital television broadcasters (our summary here).  And all full-power broadcasters need to file their reports on the results of the recent Nationwide EAS Test by December 27 (see our post here).

December also brings a Commission meeting, at which the CALM Act rules will be adopted according to the tentative agenda for the December 12 meeting.   The CALM Act is intended to eliminate loud commercials.  These rules are required by statute to be adopted in December (see our summary of the proposed rules here).  Comments on a number of other FCC proposals in rulemaking proceedings are also due. The FCC just announced  that comments in the proceeding to determine if FM digital operations using the IBOC technology (so-called HD Radio) can operate with different power levels on each side of the main channel are due by December 19 (see our summary of this proceeding here). Comments on the controversial proposal for the online public inspection file for television stations are due on December 22.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In recent weeks, there seems to be a competition to make the FCC more responsive, and to mandate that, before it adopts any new regulations, it take into account the costs of the proposed regulations and the burden that they place on those being regulated.  The Communications and Technology Subcommittee of the House Energy and Commerce Committee adopted a bill (The FCC Process Reform Act of 2011) that would, if adopted by the full House and the Senate, require that the FCC, before adopting any new regulations, take several steps to make sure that regulations were really necessary (see a summary of House bill here).  Before adopting any rule, the Commission would have to survey the marketplace, determine that there was a market failure or specific consumer harm, then take into account the cost of complying with regulations before the new regulations are adopted.  The proposed legislation would also require that the FCC adopt deadlines on many FCC actions ("shot clocks"), perhaps in response to a Study commissioned by the House Committee looking at the length of time that many FCC proceedings take.  The FCC adopted its own proposals for making its regulations less burdensome by reviewing the continuing need for existing rules, following the President's call for all agencies to take such action.  The FCC report, after making the seemingly obligatory bows to broadband adoption that the Commission seeks to foster, talked about many of the same issues that the Congressional committee seemed to be addressing - deleting unnecessary regulation wherever possible.  What changes will these efforts bring to the FCC?

Call me cynical, but I doubt that the proposed changes will really lead to any significant differences in the way that the FCC does business.  The FCC is already bound by all sorts of laws that demand that it take into account many of the same considerations that are included in the plans of Congress and the FCC.  The Paperwork Reduction Act has already stopped certain regulations from going into effect, including the Form 355 (which sat in limbo for 4 years and the FCC is only now considering reviving in a somewhat more abbreviated form).  The FCC also must take into account the Regulatory Flexibility Act, looking at the impact of any regulation on small entities who would be subject to any new rule.  Congress itself has already enacted other requirements that the FCC review regulations on a periodic basis - for instance the required Quadrennial Review of the FCC's multiple ownership rules.  And what do these accomplish?

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

So just what legal, regulatory and legislative issues are currently facing broadcasters in Washington?  On Tuesday, I did a panel at the Connecticut Broadcasters Association's Annual Convention in Hartford with Kelly Cole, the Senior Vice President for Government Relations at the NAB.  In putting together our presentation, one of the most striking things to me was the number of different issues facing broadcasters with which the NAB is dealing.  57 different issues are set forth on the slides from the presentation (available here).  They range from Congressional matters such as spectrum auction authority (about which we recently wrote here), retransmission consent reform, and the performance royalty; to FCC regulatory issues including ownership reform, rural radio issues and the FM translator/LPFM debate; to issues pending in many other venues - including international intellectual property reforms and issues at the FTC and Copyright Office.  Even this list is incomplete, as there are other slides that we discussed during our presentation, including issues such as the upcoming consideration at the FCC meeting next week of an online public inspection file requirement for broadcasters (see our recent article here), video captioning of internet programming repurposed by broadcasters from materials already shown over-the-air (see our article here) to more mundane but nevertheless very important issues like the December 1 deadline for Biennial Ownership Reports for commercial broadcasters (see our article here). Also, as set out in the slides, there are all sorts of new deadlines coming up for broadcasters in addition to the Biennial Ownership Report, including the National EAS Test, the implementation of the CALM Act and the requirements for captioning video repurposed to the web, political broadcasting lowest unit rate windows  that may be open or opening in many states, as well as license renewal deadlines for many broadcasters.

Plenty to be concerned about, and plenty to follow and, where appropriate, to let your voice be heard on the many topics of importance. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The FCC Form 323 is now available for filing by all commercial broadcasters.  The Form must be submitted by December 1 of this year.  In 2009, the FCC adopted the requirement for a biennial ownership report for all commercial stations, to be filed by November 1 every other year, with information accurate as of October 1.  In 2009, the new electronic form had issues, so filing deadlines were delayed until June.  This year, the FCC recently announced that the deadline would be extended until December 1, to give broadcasters more time to complete the  reports - especially the cumbersome filings required for companies that own multiple stations.  Nevertheless, the information on the reports is still supposed to be current as of October 1.  The form is now available online, and commercial broadcast licensees can file the report at any time.

The FCC Public Notice links to a series of frequently asked questions about the report.  These questions remind broadcasters that the report is to be filed by all commercial licensees (not permittees of unbuilt stations) of AM, FM, TV, LPTV and Class A TV stations.  Translators (radio and TV) are not included in the requirement.  Noncommercial stations (including LPFM stations) need not file the report on the new form or at the same time as commercial licensees.  Noncommercial licensees continue to file every other year on the anniversary date of the due date for their last license renewal (note that this means that some noncommercial stations in states with December renewals will need to file by December 1, not because they are covered by the commercial requirements discussed above, but because their filing deadline just happens to fall on that date).  Noncommercial licensees also do not use the new electronic Form 323 used by commercial licensees, but instead use Form 323E.  (See our most recent advisory to noncommercial broadcasters on their ownership obligations, here).  Whether commercial or noncommercial, remember to file your ownership reports by the required deadlines!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The FCC today announced the public testing of a new TV White Spaces database system.  Starting on September 19, 2011, the FCC's Office of Engineering and Technology will open a 45-day window to allow the public to try out the TV Band Database developed by one of the potential TV White Spaces database managers.  If approved, the Database will be used by white space devices to find available frequencies and avoid interfering with authorized services and registered facilities.  As we have written about previously (here) the Commission has adopted new rules to allow unlicensed devices to operate in the television spectrum, but such operations must protect incumbent users.  Accordingly, as part of those rules, the Commission has required the development and use of a database, which TV band devices will be required to access periodically in order to determine available frequencies and adjust their operation.  As we discussed here, the Commission has tentatively selected a number of parties to serve as database managers to develop and maintain such TV white spaces databases.  With this upcoming public trial, interested parties will now have a chance to test the database system developed by one such potential database manager.  As part of its authorization process, each interested database manager will be subject to a similar trial period of no less than 45 days.

During this trial period, interested parties are encouraged to test the database, including the basic functionality, including the following elements:  The channel availability calculator; cable headend and broadcast auxiliary receive site registration; and wireless microphone registration.  Starting on Sept. 19th, the TV band database can be accessed here.  The test site will provide a description of the trial, details on use of the system, and a link for feedback.  Following the conclusion of the test, the potential database manager will submit a report to the Commission, which will also be available for public review and comment.  At the end of the process, the FCC will determine whether this particular system complies with the rules and requirements and whether this database manager will be authorized to operate one of the official databases.  In addition to giving feedback to the database manager through the test site, parties can also submit comments directly to the FCC in the open docketed proceeding ET Docket No. 04-186 regarding the TV bands database systems through the FCC's Electronic Comment Filing System.  A full copy of today's Public Notice can be found here. 

In addition, perhaps coincidentally, today it was announced in the Federal Register that the rules involving the collection of information for these white spaces database have received OMB approval and those data collection rules are now in effect.  So once the first database managers gain FCC approval and bring their databases online, the government has the green light to instruct parties to populate the databases by registering their services and facilities for protection.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

How do you secure a loan to an FCC broadcast licensee? This was the issue discussed by a case released by the Commission last week – addressing the FCC’s policies prohibiting a station creditor from foreclosing on a broadcast license and also restricting the sale of a “bare license.” While this case involved an action for collection by a judgment creditor, it is instructive as to how any broadcast creditor, including a lender to a broadcast licensee, should act to secure loans or other financial obligations of a broadcaster, and how the creditor can exercise its rights in the event of a default. It is also instructive as to how to proceed to enforce a loan obligation to any FCC licensee - in the broadcast services or in the other services regulated by the FCC.  As the FCC has a long-standing policy prohibiting a lender from taking a security interest directly in an FCC license, lenders need to pay careful attention in documenting loans and in enforcing security agreements upon defaults to make sure that their interests are protected. 

Lenders cannot foreclose directly on a license when a broadcaster defaults on its obligations, as the FCC has made clear that a license is not a property right that can be used for security. The FCC has said that a license is not subject to “mortgage, security interest, or lien, pledge, attachment, seizure, or similar property right.”   As the license cannot be attached, to get at the value of the license if there is a default and the debtor won’t cooperate in a voluntary foreclosure, the Lender has to go to court and have a receiver or trustee appointed to oversee the assets of the debtor. An involuntary transfer to a trustee or receiver pursuant to a court order can be approved by the FCC expeditiously on a “short form” (Form 316 in the broadcast services) transfer application. Once appointed, the trustee can sell the sell the station (pursuant to FCC approval on a subsequent "long-form" application) and distribute the proceeds to the creditors. In the case decided last week, the actions of the local court that was attempting to enforce the rights of the creditor gave the Commission pause.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We wrote about FCC Chairman Genachowski's announcement of the repeal of the Fairness Doctrine as part of the FCC's repeal of 83 media related rules.  Well, the full text of the repeal was released today, and the Fairness Doctrine really was the only real headline.  For broadcasters, all of the other deleted rules were even less relevant than the Fairness Doctrine (which had been effectively dead for almost 25 years before it was repealed).  10 of the 83 deleted rules dealt with the "broadcast flag", an FCC rule for digitally watermarking DTV programming so that copies could be identified by their source - rules that were thrown out years ago by the Court of Appeals as exceeding the FCC's authority.  Another 57 of the "deleted" rules are rules that are still fully on the Commission's books - just in a different section of the rule book.  Decades ago, most broadcast rules were moved out of Part 1 of the FCC rules (which deals with general FCC procedures) to Part 73 (which sets out the substance of the rules for broadcasters).  This week's action merely deletes the 53 rules that remained in Part 1, where the entire text of the deleted rule was to refer the reader to the corresponding rule section in Part 73, where the substantive rules still reside and are still fully enforced (including matters such as the FCC's EEO rule).  So, when the FCC claims that 83 rules were deleted, that really is not saying much.  These non-substantive changes, combined with the almost meaningless deletion of the Fairness Doctrine rule (see our article on that deletion) don't bring any regulatory relief, on a day to day basis, to any broadcaster.

Congress is apparently not content with these rule changes.  In a press release  issued this week, Chairman of the House Energy and Commerce Committee, Fred Upton, and the chair of its subcommittee on Communications and Technology, Greg Walden, welcomed the repeal of the Fairness Doctrine, but stated that they looked forward to additional deregulation pursuant to the President's Executive Order asking agencies to reduce regulation to stimulate the economy.  The release also suggested that the FCC should only adopt rules after the rules were proposed and fully subject to public comment and fully reviewed to determine their effectiveness and their economic effect.  The Congressmen suggested that the FCC had not always done that.  Wonder what regulations they were thinking about?  I've got my thoughts (perhaps rural radio or even the decision by former Republican FCC Chairman Kevin Martin to amend the newspaper/broadcast cross-ownership rules following a decision-making process recently criticized by the Third Circuit).  Any nominations from our readers?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In 2009, the FCC adopted a uniform deadline for all commercial broadcast licensees to file an FCC Form 323 Biennial Ownership Report.  The due date for that report was supposed to be November 1 of that year, but was postponed until July of 2010 when problems popped up with the new forms.  The next Biennial Ownership reporting date was scheduled to be November 1 of this year (two years after the originally scheduled date for the first report to use the new form) - but the FCC today issued a Public Notice postponing the filing deadline for one month, to December 1.  This delay was justified so as to give broadcasters, especially those with many media interests held in different companies, more time to complete what can be a cumbersome process of filling out all of the reports and exhibits that need to be submitted.  Reports need to be filed by December 1, but all information still needs to be reported as of October 1 of this year - a standard reporting date that will remain constant each year to give the FCC a snapshot of the composition of ownership in the broadcast world.

The revised ownership report filing processwas adopted so that the FCC could get an accurate report on the ownership of broadcast properties by minorities and women, a goal that has taken on added significance in light of the Third Circuit Court of Appeal's recent decision in Prometheus Radio Project v FCC, rejecting the FCC's efforts to diversify ownership in the media through the use of a system giving preferences to qualified entities, i.e. small businesses.  As we wrote last month, the Court found that the FCC's goal was to promote minority and female ownership, which was not fostered by its concentration on small businesses.  One of the issues on which the Court faulted the FCC was the lack of information about the current broadcast ownership interests of minorities and women, so that the FCC could do a "Adarand study" as to whether there are effects of past discrimination reflected in the current ownership of broadcast stations that need to be remedied by affirmative action efforts based on race or gender.  These new ownership reports are designed to help to provide that information.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Microwave frequencies used by television stations for their TV Pick-Ups for the transport of programming, and by cable systems for their CARS relays, were the subject of an FCC order last week looking to repurpose these frequencies to provide backhaul for wireless broadband and other telecommunications uses.  The Commission's order sets out to protect existing users, but to allow these frequencies to be used by wireless users in rural areas where there will not be interference to licensed broadcast or cable users.  Our firm's Broadband Law Advisor Blog summarizes this order and the request for further comments in this proceeding.  Comments are due October 4 and Replies on October 25. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The recent decision of the Third Circuit Court of Appeals which overturned the FCC's 2007 rulings on newspaper-broadcast cross ownership and on diversity initiatives, took an unexpected turn today.  The FCC issued a Public Notice announcing that it would immediately stop giving "Eligible Entities" an advantage in certain instances - most particularly the extension of construction permits for new stations that are close to their expiration dates.  In the FCC's 2007 Diversity Order, the Commission, to encourage more diversity in broadcast ownership, allowed "eligible entities", i.e. small businesses under SBA definitions, to acquire construction permits for new stations that were close to expiration, and to get an additional 18 months in which to construct the station.  In most other circumstances, the FCC will not extend a construction permit (absent some limited "tolling events" that will give applicants a limited amount of time to construct - but just the amount of time that a limited unforeseen event takes out of the usual 3 year construction period).  The 18 month extensions given to Eligible Entities have become an important way of saving construction permits about to expire when the original permit holder could not complete construction in the given 3 year construction period.

Today's decision takes away that opportunity to extend unbuilt construction permits.  And the ruling goes even further, pulling the rug out from under recent grants of CP extensions - even ones that have already been granted, unless the extensions have become "final," i.e. no longer subject to reconsideration or appeal.  Those extensions granted in the last 40 days are subject to this order, and if these CPs have an initial expiration date that has already passed, they will be canceled.  This will no doubt cause some great consternation among parties who have purchased a construction permit in reliance on an FCC order extending the permit by 18 months, and may even have taken steps to construct the station since purchasing it, and now find themselves with a permit that has already expired.  The Commission makes no suggestion why some other remedy consistent with the Court's order, but not so harmful to parties that relied on prior Commission policy, could not have been adopted - perhaps a new "tolling event" giving applicants a limited period of time to get a station on the air before the CP was canceled.  Sellers no doubt relied on the prospects of a pending sale (and simultaneous extension) to stop taking last minute extraordinary efforts to get a station constructed before the CP expired, and Buyer's relied on the FCC order extending a CP to close purchases.  Given the potential for some entities to suffer greatly by this ruling, look for appeals to be filed.

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

[Update - 4/9/2011.  Based on the announcement late last night, the Federal government will not be closing on Monday.  But the agreement that was reached yesterday still needs to be documented and voted on by the House and Senate.  But, barring an unforeseen breakdown in the deal, these shutdown instructions can be shelved - at least temporarily.  Congress will be voting on an authorization to extend the Federal debt limit in the next month or so, and will have to approve a fiscal year 2012 budget before the end of the current budget year on September 30.  Plenty of possibilities to have to dust off these instructions for use at a later date]

The FCC has just released its plans for an Orderly Shutdown in the event that there is no agreement for funding the government  passed by Congress by midnight tonight.  As set forth in that plan, FCC employees would arrive at work on Monday for purposes of securing their work premises.  Except for a few essential employees, all others would be furloughed, and thus have to turn around and go home.  They would not be able to perform any official functions.  The FCC's plan states that the work that could not be performed includes:

Consumer complaint and inquiry phone lines cannot be answered; consumer protection and local competition enforcement must cease; licensing services, including broadcast, wireless, and wireline, must cease; management of radio spectrum and the creation of new opportunities for competitive technologies and services for the American public must be suspended; and equipment authorizations, including those bringing new electronic devices to American consumers, cannot be provided.

Thus, it appears that, if the government shuts down, there will be no filings of pleadings or applications permitted.  Travel by government employees would also stop - which may have an impact on events such as next week's NAB Convention where several FCC employees are scheduled to appear.  The plan does make clear that the Chairman is exempt from any furlough, but whether he can travel or speak to the public, or do other nonessential duties, remains to be seen.  We will update this entry as more information becomes available - if indeed the government does shut down at midnight tonight. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With April Fool's Day only a few short days away, and with many articles running in the trade press about what stations should and shouldn't do on that day, we thought that we would weigh in with our own legal reminder - no matter what you do, be careful not to violate the FCC's rule against broadcast hoaxes.  That rule, Section 73.1217 of the Commission's Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But the FCC rule is not the only reason to be wary on April 1. 

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Broadcasters are inevitably moving toward a digital future - exploiting new Internet and mobile platforms to supplement their traditional over-the-air operations.  Last week, I conducted two sessions in Salt Lake City for the Utah Broadcasters Association, one on the legal issues to be considered in connection with broadcasters' use of the digital media, and a second updating broadcasters on all the legal and regulatory issues that they face from Washington with their over-the-air operations.  Slides from the digital media presentation, Broadcasters Online: Legal Issues in the Cyber Jungle, are available here, and those from the broadcast update, the Top Ten Washington Issues that Should Keep Broadcasters Awake at Night, are available here.

To show how quickly things move in Washington, since the seminar, there have been two new developments that relate to topics discussed at the seminar.  On the day of the seminar, the Commission's Enforcement Bureau came out with a policy statement about a certification that broadcasters need to include in all of their advertising contracts certifying that the advertising was not sold with a discriminatory purpose - as there will be a specific question about the certification in all license renewal applications.  We have summarized the requirements for the clause to be included in the advertising contract here. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The start of the FCC's license renewal cycle for radio stations is close at hand, and we have issued an advisory to help radio stations prepare for the process.  A copy of the advisory is available here, and contains information about the pre- and post-filing announcements that stations are required to air, as well as information about recent changes to the FCC Form 303-S License Renewal application, and guidance on what radio stations should be doing as they head toward the filing date. 

Radio stations in Maryland, Virginia, Washington, DC, and West Virginia are the first batch to file on June 1st, just over two months away.  Even more pressing for stations in these states, however, is the requirement that they begin broadcasting their pre-filing announcements on April 1st.  The announcements continue on April 16, May 1, and May 16, for a total of four pre-filing announcements.  These announcements give notice to the local community that the station will be filing a license renewal application with the Commission and invite participation in the renewal process.  The precise language of the pre-filing announcements—which is dictated by the FCC’s Rules—can be found here.

The announcements should be aired in the primary language used on the station, so if the station broadcasts primarily in a foreign language, the announcements should be broadcast in that language. For commercial radio stations, at least two of the required pre-filing announcements must air on the station between 7 a.m. and 9 a.m., or 4 p.m. and 6 p.m. local time. If the station does not operate between 7 a.m. and 9 a.m. or between 4 p.m. and 6 p.m., then at least two of the required announcements must be made during the first two hours of broadcast operations. For noncommercial educational stations, the timing of the announcements is the same as for commercial stations, except that such stations need not broadcast the announcements during any month during which the station does not operate.

Next up in the queue will be radio stations in North Carolina and South Carolina, who will start their pre-filing announcements on June 1st in advance of filing their renewal applications on August 1st. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Broadcast engineers are often tasked with much of a station's regulatory compliance, as well as its planning for the future.  At last week's Michigan Association of Broadcasters Great Lakes Broadcasting Conference, I did a presentation to the a session of broadcast engineers and others, sponsored by the local chapter of the Society of Broadcast Engineers. We covered the industry's macro issues of spectrum reallocation for television, and HD Radio for radio, and the possible use of TV Channels 5 and 6 for radio.  We also talked about restrictions on the movement of AM and FM stations based on the FCC's rural radio proceeding, and the issues between translators and LPFM stations.  Then we talked about many of the day to day issues that can get a station in trouble - particularly with license renewals coming up.  A copy of the slides that I used in the presentation is available here.  Additional information on many of the topics that I discussed last week are also available on our blog, as listed below.

Some of the articles that we have written that would be important to members of the engineering community include the following:

• The latest on White Spaces, and the development of the database that will be used to protect TV stations, translators, cable headends and other current users of the TV spectrum, an issue that I neglected to address at the conference 
• A summary of the FCC's proceeding to determine how incentive auctions would work to clear space in the TV spectrum for wireless broadband, and on making VHF channels more useful for digital television
• The latest on video description of TV programming can be found here.
• Information about closed captioning requirements and the new complaint process for issues about such captioning can be found here
• Our checklist for the commercial broadcaster's public file can be found here
• Information on the FCC's rural radio proceeding can be found here

There are plenty of other articles on the Blog about FCC Fines, LPFM/FM translator issues, Tower issues, EAS and other matters that are important to engineers - and to the stations they work for.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week the FCC rejected a request by a low power television broadcaster seeking an experimental license to test a technology that would allow broadcast television stations to provide broadband access.  The brief decision, available here, was issued by the FCC's Media Bureau and rejected the request primarily on the grounds that the technology the LPTV broadcaster sought to test is inconsistent with the existing ATSC standard for transmission of digital television signals in the U.S.  This decision brought about a rebuke by a Wall Street Journal columnist, suggesting that the FCC was not fully exploring one way to rapidly deploy broadband through existing TV licensees, in fears of foregoing the revenues that would come from an auction of reclaimed television spectrum.   This issue arises while the FCC considers the digital conversion of LPTV, and the future of the television spectrum generally.

As has been well known and discussed for at least the last decade, the ATSC standard chosen for digital television broadcast service in the United States is not ideal for mobile service and is not well suited for two-way broadband service.  The current ATSC standard was designed to provide a signal to fixed locations for traditional in-home television watching.   As we have written before, in 2000, in the early days of the digital television conversion, some broadcasters suggested that the system be changed to accommodate a more robust signal allowing better mobile reception and other services that maximize the capacity of the digital channel. That proposal was rejected for fears of slowing the digital conversion, but is seemingly being revisited now. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

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

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On February 8, 1996, the Telecommunications Act of 1996 was signed into law by President Bill Clinton.  While the Act had significant impact throughout the communications industry, the impact on broadcasters was profound, and is still being debated.  The Act made changes for broadcasters in several major areas:

• Lengthened license renewals to 8 years for both radio and TV, and eliminated the "comparative renewal"
• For radio, eliminated all national caps on the number of radio stations in which one party could have an attributable interest and increased to 8 stations the number one party could own in the largest radio markets
• For television, raised national ownership caps to having stations that reached no more than 35% of the national audience, with no limits on the number of stations that could be owned as long as their reach was under that cap.
• Allocated spectrum that resulted in the DTV transition

Obviously, the DTV spectrum began the profound changes in the way television is broadcast, and led to the current debate as to whether over-the-air television should be further cut back in order to promote wireless broadband (see our recent post on the FCC's current proceeding on this issue).  While the other changes have now been in effect for 15 years, the debate over these provisions continue.  Some argue that the renewal and ownership modifications have created too much consolidation in the broadcast media and lessened the broadcaster's commitment to serving the public interest.  Others argue that, in the current media world, these changes don't go far enough. Broadcasters are under attack from many directions, as new competitors fight for local audiences (often with minimally regulated multi-channel platforms, such as those delivered over the Internet) and others attack broadcasters principal financial support - their advertising revenue. Even local advertising dollars, traditionally fought over by broadcasters and newspapers (with some competition from billboards, direct mail and local cable), is now under assault from services such as Groupon and Living Social, and from other new media competitors of all sorts.  With the debated continuing on these issues in the current day, it might be worth a few looking back at the 1996 changes for broadcasters, and their impact on the current broadcast policy debate.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When the FCC looks to adopt new rules or policies through rulemaking proceedings or through other significant cases, there are often companies, associations and individuals trying to influence the decision on these matters.  Such discussions with FCC decision makers are permitted, but the parties trying to influence the FCC's decisions must file notices in the Docket of the proceeding on which they were commenting, summarizing the discussions that were had, and the issues that were discussed.  These notices are called "ex parte notices" and the rules dealing with the disclosure of the lobbying being done on these FCC issues are called the "ex parte" rules.  The FCC has just issued a Report and Order that revises and updates those rules to require more detailed and frequent disclosures.  Our Davis Wright Tremaine advisory on these updates  is now available.

The changes include clarifications that require written disclosures even if the parties involved don't believe that any new information was conveyed or new arguments raised, mandatory electronic filing of most notices, an extra day to file most ex parte notices (two business days instead of one), but expedited filing in cases where presentations are made in or close to the "sunshine period" (the period just before the decision, when comments to decision makers are generally limited to those requested by the FCC staff).  The FCC also decided, for now, not to include ex parte filing obligations in connection with comments made on the FCC's social media sites (e.g. its blogs, twitter feed and Facebook pages).  Finally, the Commission asked for more comments on whether there should be corporate disclosures made in connection with ex parte notices - whether companies should be required to identify their communications interests and whether trade and public interest groups should be required to identify who supports these groups positions.  Comments on how such a requirement could be implemented, and whether the burden that it imposes would be worth the benefit it provides, are due 45 days after publication of the notice in the Federal Register.  Again, for more information, look at the Order, or at our firm's Advisory.   Be sure to comply with these rules, as one of the order charged the Office of General Counsel and the FCC's Enforcement Bureau with policing violations of the rules, and authorizing fines for repeated or egregious violations. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

Television Issues

Spectrum issues have been the dominant TV concerns in past years, first with the digital transition, and more recently with the "white spaces" rulemaking and the proposals advanced as part of the FCC's Broadband Plan to reclaim part of the TV spectrum for wireless broadband uses.  These issues remain on the FCC's agenda, as do new issues dealing with the carriage of television stations by cable and satellite television providers.  Specific issues for TV include:

Spectrum reclamation:  The initial proposals for the reclamation of part of the TV spectrum for wireless broadband were laid by the FCC's Notice of Proposed Rulemaking released in November, looking at how the TV spectrum could be used more efficiently, and how incentive auctions encouraging some TV stations to vacate their channels could be conducted.  Congress still has to pass legislation to allow such auctions, and it will probably also mandate a spectrum inventory to determine if the reclamation of the TV spectrum is really necessary to provide for wireless broadband needs.  At the same time, some TV operators have begun to talk about television stations themselves providing broadband service with their excess spectrum.  While Congress will probably act on the auction bills this year, and there will be much debate about the details of the reallocation issue, so don't expect final resolution of this matter in 2011.

White Spaces:  The FCC has authorized the operation of wireless devices in the television spectrum, resolving many of the concerns about interference to television operators by requiring all wireless users to protect operating TV channels in specific areas based on databases of existing users, not on spectrum sensing techniques.  But implementation issues still need to be worked out - including finding parties to compile and administer the databases to make sure that all existing spectrum users who are to be protected are registered.  Expect action on these matters this year, but no actual white spaces use until after these implementation efforts are completed.

LPTV Digital Transition:  While many members of the general public may consider the digital television transition to be complete, many Low Power TV stations and TV translators are still operating in analog.  The FCC has commenced a proceeding to require the transition of these stations to digital, suggesting that the transition be complete as early as the end of 2012.  Expect controversy on this issue.  Many LPTV stations feel that being forced incur the costs to covert to digital is premature and could imperil broadcast service, especially to rural areas and minority populations who rely on translators and LPTV stations, if spectrum repacking caused by any future repurposing of TV spectrum for broadband forces further technical changes.  These issues will be considered by the Commission this year.

Retransmission Consent Reform:  At the end of 2010, there was much controversy over retransmission consent issues, as there were instances where broadcasters and cable operators and other multichannel video programming distributors had difficult negotiations over the carriage fees to be paid to the TV stations.  FCC sources stated at the end of the year that a proceeding will be initiated to determine if the rules governing the negotiation process should be changed.  The multichannel video programming distributors and some public interest groups argue that the FCC should protect viewers who may have their TV service disappear if a TV station does not reach a deal with a MVPD, while the broadcasters argue that the ability to remove the station is the heart of the negotiation, and removing the risk of the MVPD losing the right to carry the station would negate the negotiation.  Look for this proceeding to commence early in the year but, as it will no doubt be very controversial, it may take some time to resolve.

DMA Boundary Issues:  The FCC has also begun a proceeding to look at DMA boundaries that cross state lines to see if every television viewer should be guaranteed to receive service from cable or satellite providers of a station in his or her state.  Television stations fear that this guarantee could upset traditional television markets, and could have an impact on retransmission consent negotiations in border counties.  Comments in this proceeding are due on January 24th, 2011.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's the beginning of a new year, and each year brings numerous regulatory deadlines for radio and television broadcasters.  We've put together a calendar that sets out many of those dates.  You can find the calendar setting out important dates for broadcasters in 2011 here.  It sets out many important dates - including the dates for regulatory obligations including: EEO Public File Reports, Quarterly Programs Issues Lists, Children's Television Reports, Ownership Reports (yes, a Biennial Ownership Report will again be due from all stations this year), and even dates for SoundExchange payments and reports of use for stations streaming their signals on the Internet.  This year, the normal filing deadlines are supplemented by deadlines in connection with the first sets of radio license renewals due for stations in many Mid-Atlantic and Southern states.  So check out your obligations by referring to our Broadcaster's Calendar for 2011, and be prepared to meet your regulatory obligations. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

After Thanksgiving - everyone's thoughts turn to technology policy.  Well, maybe not everyone, but reading Thursday's New York Times, David Pogue wrote his column celebrating his 10th anniversary in the paper with observations about truths that he has discovered about the technology world.  Many of those same truths apply to broadcast policy, and are particularly relevant with a week coming up in which the FCC may take its first steps toward dramatically reshaping the media landscape as it considers the future of the television spectrum, and potentially repurposing some of that spectrum for wireless broadband.  Pogue's first observation was that new technology does not replace old technology - instead it merely provides more choice to the consumer.  He points out that TV did not replace radio, and that satellite radio didn't replace radio either.  Instead, these services became complements, perhaps eroding the audience of the established technology in some ways, and perhaps making the older technology redefine its mission, but the older technology survived, and remained relevant.  We've written similar observations about the future of radio - it's a technology that reaches masses with no incremental costs for adding new listeners - and is now and, for the foreseeable future will be, the most efficient way to reach large audiences with popular formats.

It is a similar story with other communications media.  And we sometimes over-react to short term trends believing that some audience erosion for a particular technology will result in its doom, when in fact it may just result in some form of re-invention.  In the last two years, we've seen print media go from being left for dead, to being part of one of the most talked about media deals of the last month - the merger between the Daily Beast and Newsweek to bring a print component to a new media darling.  Television, too, is not dead yet - it still the most watched source of video programming, whether distributed over the air or through some multichannel video transmission source, with over-the-air programming about to get a new take as mobile DTV begins its roll-out in the coming months. Recently, there has even been the occasional article about consumers "cutting the cord" - relying on over-the-air TV, supplemented by web video content, to drop their cable or satellite connection.  As Pogue suggests, all these media will continue to survive and offer choices to consumers.  But Pogue does not take into account the potential impact of a fundamental change in regulatory policy that intervenes to disrupt the natural progression of the marketplace.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week's joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states.  Initially, I conducted a seminar for broadcasters providing a refresher on their EEO recruiting obligations set out under FCC rules.  With some public interest groups calling for stricter enforcement of a broadcaster's EEO obligations, and with the license renewals for Oregon and Washington State radio broadcasters coming up in 2013 (with TV the next year), broadcasters cannot slack off on these important obligations to widely disseminate information about job openings and to educate their communities about broadcast employment issues as required by the FCC rules.  Slides from my PowerPoint presentation on a broadcaster's EEO obligations are available here.  Broadcasters looking for more information on EEO obligations can review the Davis Wright Tremaine Guide to the EEO rules, here, and our most recent reminder about the obligations for the annual EEO public inspection file report, here.

At a second session, we discussed the variety of legal issues facing broadcasters in the current environment.  Many of the same issues discussed in this session were also discussed in my Top Ten List of Legal Issues to Keep Broadcasters Awake at Night, details of which can be found here.  Some specific questions were raised during the Oregon-Washington session include questions about the FCC rules covering contests that stations conduct, and the rules that apply to such contests.  See our blog post on some of those issues here and here.  The obligations for the public file of broadcasters are also set out in our advisory, here.  Another issue that broadcasters should remember is the new obligation for their advertising contracts to include terms that state that advertising is not sold for any discriminatory purpose, to avoid no-urban, no Spanish dictates (see our post here for details).  As we wrote recently in connection with fines issued to a couple of stations for multiple day-to-day violations of the FCC rules, the attention to these details now will avoid major financial headaches for broadcasters later, and potentially long-term issues at license renewal time as well. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

So what Washington issues should be keeping broadcasters up at night? At the Connecticut Broadcasters Association Annual Convention in Hartford on October 14, and the Kansas Association of Broadcasters Annual Convention in Wichita on October 18, I presented my Top 10 list of issues for broadcasters – dealing with issues both practical and policy-based.  The PowerPoint presentation from Connecticut is available here, and that from Kansas is available here.   At these sessions, we discussed a variety of legal issues of importance to the industry, including the need for broadcasters to consider the upcoming license renewal cycle.   As we wrote a few weeks ago, that cycle begins with stations in Virginia, Maryland, DC and West Virginia in June 2011, and will continue across the country for the next few years, with radio stations in Kansas filing renewals in February 2013, and radio stations in Connecticut filing on December 1, 2013.   Television stations in each state will have applications due a year later. To be sure that stations are prepared for the renewal, they should be checking their public inspection files to make sure that they are complete, and should be preparing quarterly programs-issues lists detailing the programming that they broadcast to serve the public interest. A copy of Davis Wright Tremaine’s most recent advisory on the Quarterly issues programs list is available here. The most recent Quarterly Programs Issues List should have, by October 10, have been placed in the public files of all stations around the country, covering issue-responsive programming that was broadcast in the last quarter.  The DWT Advisory covering all of the other materials that should be in the public inspection file, and the retention period for that content, is availablehere.

We also discussed compliance with the FCC’s EEO rules, and how important such compliance is – and how each station’s EEO performance will be evaluated at license renewal time or if the station is randomly audited in the FCC’s EEO random audit process. We wrote about some of the complaints of certain public interest organizations about how they felt that the FCC had not been aggressive enough in EEO enforcement, here. With the scrutiny given to this issue, broadcasters should be observing their obligations carefully. DWT’s advisory on EEO compliance is available here, and our most recent reminder on the annual public inspection file reports for broadcasters is available here.  A PowerPoint presentation from a seminar that I just completed for the Washington and Oregon Broadcasters Associations will be posted on our blog shortly, which will highlight some of these EEO obligations. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As the media has reported extensively this week (for example here and here) the FCC is poised to tap into the television spectrum to allow the use of that spectrum on an unlicensed basis, potentially leading to a wave of innovative unlicensed devices, including potentially turbo-charged Wi-Fi.  On the tentative agenda released recently for the next open Commission meeting, to be held next Thursday, September 23rd, the Commission has included an item entitled:  "TV White Spaces Second MO&O:  A Second Memorandum Opinion and Order that will create opportunities for investment and innovation in advanced Wi-Fi technologies and a variety of broadband services by finalizing provisions for unlicensed wireless devices to operate in unused parts of TV spectrum." 

As watchers of the TV white spaces issue will recall, the Commission adopted an Order in late 2008 to permit the operation of unlicensed devices in the so-called "TV white spaces", which is the spectrum in the TV band that is not actively occupied by a television station in a particular geographic area.  (An earlier advisory by Davis Wright Tremaine summarizing the Commission's 2008 Order can be found here.)  Following the adoption of that Order, over a dozen parties sought reconsideration of the Commission's decision; those petitions remain pending.  It is not clear whether the proposed Order would be an Order on Reconsideration, but presumably it will address the issues raised by these petitioners.  In addition, the NAB (National Association of Broadcasters) and others filed an appeal in the Court of Appeals for the D.C. Circuit seeking to challenge the FCC's white spaces Order.  That appeal is on hold pending the Commission's resolution of the Petitions for Reconsideration.  Despite the unresolved objections, in late 2009, the FCC moved forward with putting a spectrum management structure in place that would establish a privately maintained database that would permit coordination in order to locate unused spectrum in the TV band in a particular area.  We summarized this step in an earlier blog entry here.  In early 2010, nine parties submitted proposals to be designated TV Band Device Database Managers, but to date the matter remains pending. 

Continue Reading...

• Email This
• Print
• Comments (11)
• Trackbacks
• Share Link

If a broadcaster or other FCC regulatee has not paid their regulatory fees when they are due, the FCC's computer system will show a "red light" on the company that owed the fee - and the FCC will not grant any applications filed by that company.  As it is, it can take days, and sometime weeks, to straighten out issues about the non-payment or late payment of fees.  Well, the process may get more difficult in the near future as, according to a Public Notice released today, the FCC is changing its financial system in October - which may make the system unavailable from October 1 through October 18.  Thus, problems with past due fees, and possibly even fees paid in connection with new applications, may not show up in the Commission's system during that period.  Even for time-sensitive new applications, where the FCC wants to know if the appropriate application fee has been paid before an application is granted, delays may occur.  Thus, the FCC warns applicants to plan their filings accordingly to avoid this period, if possible.

The Public Notice seems to anticipate that fees paid by check, as opposed to using the on-line payment system, will be subject to greater processing delays.  So review the Public Notice, and plan accordingly, to avoid any unnecessary processing delays during this period. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Are you ready to file your next license renewal application?  It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues).  Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us - beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011.  Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close.  Television station renewal applications will be due on a state-by-state basis beginning one year later - starting with TVs in DC and the same three states in 2012.  A schedule for the radio renewal filings is available here.  With these deadlines almost upon us, what should stations be doing now to get ready? 

In the last renewal cycle, the biggest source of problems dealt with public file issues.  Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies.  In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files.  These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area.  If that service is ever challenged, you will need the reports to demonstrate how your station's programming met the needs and interests of your city of license and the surrounding area.  Check out our last advisory on the Quarterly Programs Issues Lists, here.

Continue Reading...

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

The FCC today upheld the cancellation of a television station's license for being off the air for over one year.  Section 312(g) of the Communications Act instructs the Commission to cancel a license of any broadcast station that has not transmitted "broadcast signals" for over one year, unless there is a public interest reason for allowing the station to keep its license.  In this case, the television station was off the air after it lost its affiliation with a shopping network.  While searching for a way to profitably operate, the station remained silent for over a year, only coming on the air once to broadcast a test pattern for one day,  The FCC's staff found that a test pattern did not constitute a "broadcast signal", and canceled the license several years ago (we wrote about that cancellation here).  Today's decision denied reconsideration of the earlier conclusion, finding that the requirement for the transmission of a broadcast signal required more than a test pattern.  The decision characterized the test pattern as an "equipment test" as opposed to a "broadcast signal."  Thus, the decision upholds the cancellation of the license, and denies the station owner the opportunity to sell the station to a prospective buyer that it had located. 

The decision found that the fact that the station was having financial difficulty was an insufficient public interest reason to justify keeping the license effective after the end of the one year period.  Neither the death of a shareholder nor the location of a buyer for the station provided sufficient justification to the FCC for the preservation of the station's license after its one year without programming.  While this decision may still be appealed to the full Commission and the courts, perhaps to clarify once and for all what the statute means by the "transmission of a broadcast signal," for now, the law appears clear - if a station is forced over the air for something near a year, resume operations with real programming.  A test pattern will not be sufficient to preserve your license.. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The long-delayed revised Biennial ownership reports (about which we last wrote here) for commercial broadcast stations, on the new Form 323, are due on July 8, and the FCC is in the process of clarifying what it needs.  The Commission just released a Public Notice reminding broadcasters that the report is supposed to be detailing station ownership as of November 1, 2009 (when the reports were originally supposed to be filed).  Yet, in the 8 months since that date, many stations have changed ownership.  Is a new owner supposed to get the old owner to complete the form?  What if the old owner is off somewhere on a cruise, or simply wants nothing more to do with the station?  The FCC's Public Notice clarifies (to some extent) what to do in that case - indicating that stations in that situation can file a waiver request, detailing why they can't provide the ownership information for the owners who held the station license on November 1, 2009, and asking that the FCC waive its rules and excuse the filing of a report for this particular station.  This obligation to file the waiver request is on the current owner.  Note that the FCC does not say that it will grant all such waiver requests, and it specifically excludes from these waiver situations "pro forma" assignments or transfers, i.e. ones where the actual control has not changed but the legal entity holding that control has changed such as in a corporate reorganization where a station license is moved from a parent company to a subsidiary, or from a corporation to an LLC which is controlled by the same individual. 

Another looming issue may also create issues for the July 8 filings.  A group of state broadcast associations and broadcast owners has asked the US Court of Appeals to once again put the filing obligation on hold until the FCC justifies the information that is being collected.  Last week, the Court asked the Commission to justify its requirement that each person with an attributable interest in a station (i.e. anyone who would have to be reported on the Form 323) obtain an FRN (a unique identifier) which can only be obtained by furnishing  a Social Security Number.  While this may indicate that the Court is concerned about forcing every investor and officer and director of a broadcast company to provide this information, even if the Court forbids the collection of that information, it is possible that the FCC would move forward anyway with the Form 323 filing obligation - just removing the FRN from the required filing.  So don't count on the July 8 deadline being pushed back - start preparing now to be on file by the deadline.

Continue Reading...

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

In a very cryptic announcement, the Chairs of the House and Senate commerce committees, and the Chairs of the subcommittees dealing specifically with communications matters, have announced that they are beginning the process of rewriting the Communications Act of 1934, the Act which governs regulation of broadcasters as well as telecommunications, satellite and mobile communications entities.  The announcement, from Senator John D. (Jay) Rockefeller IV, Chairman of the U.S. Senate Commerce, Science, and Transportation Committee, Rep. Henry A. Waxman, the Chairman of the House Committee on Energy and Commerce, Senator John F. Kerry, the Chairman of the Senate Subcommittee on Communications, Technology, and the Internet, and Rep. Rick Boucher, the Chairman of the House Subcommittee on Communications, Technology, and the Internet, merely states that they will "will invite stakeholders to participate in a series of bipartisan, issue-focused meetings beginning in June" to address the issues that would be involved in such a rewrite.  The announcement then says that more details will be forthcoming.

What does this mean for broadcasters?  At this point, until more details are released, the issues to be addressed are anyone's guess.  Much has been made in recent years of the changing nature of the media and communications industry, particularly in light of the development of the Internet.  In a recent decision, the Courts have said that the FCC is limited in its ability to regulate the provision of Internet services, and the initial impetus for this rewrite proposal may well come from that decision.  But these processes, once begun, often take on a life of their own, with new proposals covering issues not necessarily anticipated at the outset of the proceeding arising as the process goes on.  While there are minor amendments to the Act almost every year, the last comprehensive rewrite of the Act took place in 1996.  There, while much of the debate focused on telecommunications issues (which will likely be the case here as well, as there are far more dollars at stake than in the broadcast world), broadcast ownership reform emerged at the last minute - abolishing numerical caps on television ownership and all caps on radio ownership nationally, and raising the local limits on radio ownership from the 4 stations (2 AMs and 2 FMs) previously allowed to be owned in one market by any party, to the current cap allowing ownership of as many as 8 radio stations in the largest markets.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The FCC Form 323 Biennial Ownership Report -- temporarily off-lined in December for revisions -- has been reworked and is now back.  The FCC has announced that the revised Form 323 is now available in its CDBS electronic filing system, and that all commercial broadcast stations must file their biennial ownership reports by July 8, 2010.  As we wrote earlier, many broadcasters were concerned about privacy issues related to the new Form 323, as well as more practical issues regarding the time required to enter information.  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, in December the Commission temporarily suspended the filing of the form. 

The Commission has now completed its technical improvements to the form, including the ability to upload a spreadsheet to provide certain data, rather than entering it manually, and the filing is back on, this time with 90 days for stations to prepare their reports.  Notably, the requirement that all disclosable interest holders obtain and provide an FCC Registration Number ("FRN") remains in place.  So that is one issue that the FCC did not address, and which remains unchanged from before.  One other important note, although the filing deadline is now July 8, 2010, licensees will be reporting ownership information as of November 1, 2009.  So many stations will be in the strange position of reporting what is now outdated ownership information. 

Additional information about the revised form is available on the FCC's Form 323 web site, which contains links to prior orders and notices and includes “Frequently Asked Questions” (FAQ) about the form and its electronic filing capabilities.  With all commercial broadcast stations working to prepare and file the Ownership Reports by July 8th, stations would do well to start the process sooner rather than later.  A copy of the Commission's  brief Public Notice is available here, and the revised form is available through CDBS.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

David Oxenford, Bob Corn-Revere, David Silverman, Brendan Holland, and others from Davis Wright Tremaine's media and communications practice will be in Las Vegas, Nevada from April 10-15 for the 2010 NAB Show.  The NAB convention is an annual event and a focal point for engineering, legal, and business issues for the broadcasting and greater media worlds.  Bob Corn-Revere will be speaking at the American Bar Association Conference, Representing Your Local Broadcaster, on April 11, on a panel on new technology and the dangers it poses for journalists reporting from disaster areas or other scenes where immediate verification of information is not possible - the panel is called:  "Clear and Present Danger, Guiding Journalists Through the Catastrophic Perils."  David Oxenford, on the morning of April 12, will be speaking at the NAB Show on a panel called, "Copyright Licensing: Seeking a Bridge Over Troubled Waters", a panel dealing with the proposed broadcast performance royalty, streaming fees, the current ASCAP and BMI negotiations, and other copyright issues that arise in day-to-day operation of a broadcast station.  Dave will also be moderating a panel at the Radio and Internet Newsletter's RAIN Internet Radio Summit, to be held in conjunction with the NAB Show, at the Renaissance Hotel on April 12.  Be sure to join us at these and other events in Las Vegas.

To help you attend the Show, we have been offered some discounts and free admissions for our readers.  The RAIN Summit, Internet Radio's main event, has offered readers of the Broadcast Law Blog a 30% discount on admission to the conference.  That conference includes a full day of discussion of Internet radio topics, and will feature many of the industry's biggest names.  From past experience, this always a great event with much great information, important for anyone with any interest in Internet radio and digital media.  The Summit features great networking opportunities, with a box lunch and post-conference reception.  An Exhibit Hall pass to the NAB Show is also included for RAIN attendees

For those not interested in Internet radio, we can still get you into the NAB Show's Exhibit Hall - for free!  The NAB has offered our readers free access to the Exhibit Hall at the show. This free Exhibits-Only pass includes:

• Access to the Exhibit Hall at the Show
• Access to the Opening Keynote and State of the Industry Address
• Access to Info Sessions on the Convention floor
• Content Theater and Destination Broadband Theater

To find out how to register for these discounted offers, click on the Continue Reading link below.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Incomplete public inspection files were the largest source of fines during the last license renewal cycle.  We wrote last week about two noncommercial broadcasters whose renewal applications filed many years ago have just now led to consent decrees and voluntary contributions to the US treasury in lieu of fines.  To help commercial broadcasters avoid these issues, we have prepared a Guide to the Basics of Public Inspection File Obligations for Commercial Radio and Television Broadcasters, discussing the rules that need to be followed with respect to the availability of the file to the public, its required contents, and the time period for the retention of documents kept in the file.  The Guide also has links to some of our other advisories that deal in more detail with the obligations to keep specific types of documents in the file - including political broadcasting documents, quarterly issues programs lists, EEO reports and children's television reports.  Read the guide, available here, review your operations and be prepared for the next renewal cycle.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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?

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.  

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments (1)
• Share Link

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."

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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

• Email This
• Print
• Comments
• Share Link

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?

Continue Reading...

• Email This
• Print
• Comments (2)
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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.   

• Email This
• Print
• Comments (1)
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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.  

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments (3)
• Share Link

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. 

 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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).

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.  

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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...

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments (1)
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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....

• Email This
• Print
• Comments (1)
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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).

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments (2)
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see  FCC Announces New Round of EEO Audits for Radio Stations; Reminds Broadcsters of Requirement to Post Annual EEO Public File Report on Station Website, and Cable Companies of Obligation to File EEO Program Annual Report

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see February Legal Deadlines for Broadcasters - Online Public File, Review of Incentive Auction Comments, Filing Deadline for FM Auction, and Lots of Renewals and EEO Public File Reports

• Email This
• Print
• Comments
• Share Link

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

Continue Reading...

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see FCC Deadlines in January - Quarterly Issues Programs Lists, Children's Program Reports, Comments on TV Online Public File and Public Interest Obligation Proposals, FM Window and More

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see  FCC Issues Clarification of Mid-Term EEO Report Obligations of Broadcasters

• Email This
• Print
• Comments
• Share Link

this article is no longer available. For more information on this topic , see  EEO Public File Reports Due By February 1 For Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma - David Oxenford Conducts Webinar to Refresh Kansas Broadcasters on Their EEO Obligations

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see FCC Deadlines in January - Quarterly Issues Programs Lists, Children's Program Reports, Comments on TV Online Public File and Public Interest Obligation Proposals, FM Window and More  

 

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see Multiple Ownership Decision Delayed - What Issues Are Being Debated? 

• Email This
• Print
• Comments (1)
• Share Link

This article is no longer available. For more information on this topic, see FCC Issues Emergency Communications Reminders to Broadcasters and Other Communications Entities in the Path of Hurricane Sandy 

 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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

• Email This
• Print
• Comments
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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.

 

Continue Reading...

• Email This
• Print
• Comments
• Share Link

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. 

Continue Reading...

• Email This
• Print
• Comments (1)
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments (1)
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see Big Fines for Public File Violation that Escalated 

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see Digital Television Takes Over in Less Than Two Years - Will the Public Be Ready? 

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see FCC Releases New EAS Manuals Explaining Obligations for Broadcasters and Video Providers 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see Looking Into the Crystal Ball - What Can Broadcasters Expect from Washington in 2010? 

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see  Another FM Freeze in Anticipation of FM Auction 70 

• Email This
• Print
• Comments
• Share Link

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).

Continue Reading...

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see  FCC Sets Deadlines and Procedures for the April 2013 Auction of 112 New FM Channels - February 6 Deadline for Applications to Participate

 

• Email This
• Print
• Comments
• Share Link

This article is no longer available.  For more information on this topic, see  Today, Two New FCC Commissioners Approved by the Senate - What Does It Mean for Broadcasters?

• Email This
• Print
• Comments
• Share Link