Posted on January 24, 2008 by David Oxenford

FCC Releases Specifics of Localism Rulemaking - Proposing Lots of New Rules For Broadcasters

At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism.  At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown.  The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations.  The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation.  From the discussion in the NPRM, new rules will apply to all broadcasters - large and small - and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with.  Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.

Among the specific proposals on which the Commission asks for comments include the following:

Community Advisory Boards:  The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station's programming.  The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board.  Other questions include how often the board should meet, and how the board members should be selected (or elected - though by whom, the Commission does not suggest).

Other Community Outreach Efforts.  The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters.  These would include the following:

  • Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
  • Focus sessions or town hall meetings
  • Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
  • Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.

Remote Station Operations.  Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation.  Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).

Quantitative Programming Guidelines.  The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time.  Questions include what categories of standards should be established (just local programs - or more specific requirements to set required amounts of news, public affairs and other categories - and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?

Main Studios.  The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license

Network Programming Review.  The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired.  If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?

Voice Tracking.  The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.

Local Music.  While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music.  With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.

Class A TV.  The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.

 

In addition to these specific proposals to be considered in this proceeding, the Commission mentions a number of other proceedings that are either underway or which will be initiated to consider other issues relevant to the consideration of localism in broadcasting.  The new proceedings to begin include:

Embedded Advertising.  The Commission specifically states in the NPRM that it believes that there are a number of broadcast practices that violate the spirit of the Commission's sponsorship identification rules.  On one of these issues, the Commission plans to launch a proceeding to investigate 'embedded advertising," commercial messages that are contained in program content (e.g. when the hero of a TV program sips a recognizable can of Coke or drives a Ford or goes to see a specific new movie).  That proceeding was on the Commission's agenda in December, but was pulled at the last minute but apparently will return in the near future.

Network-Affiliate Issues.  The Commission for years has had pending before it a petition by a group of owners of network affiliated television stations arguing that network affiliation agreements gave the networks too much power, effectively precluding affiliates from making programming choices that might better serve the interests of their communities.  It appears that the Commission will be resolving those issues, perhaps in a new proceeding to specifically consider some of those issues.

In-State Television Signal Availability.  The Commission promises to initiate a proceeding to determine if cable and satellite carriers should be permitted (or required) to provide subscribers with service from an in-state television station, even if the subscriber lives in a DMA where all the television stations originate in another state. 

FM Channel Availability.  The FCC has instructed its staff to come up with a tool to make it easier for the public to determine (on their own without hiring a consulting engineer) if a new FM station can be allotted at a particular community.  Look for this tool to appear on the FCC's website in the future. 

Other issues will be decided as part of other on-going proceedings.  These include:

Enhanced Disclosure Obligations.  In a simultaneously released Order, the FCC imposes certain enhanced disclosure obligations on television broadcasters - requiring that new forms be completed quarterly by broadcasters reporting on the types of programming that they broadcast, and requiring that public file information be maintained on the station's website (if the station has a website).  The imposition of similar requirement for radio is already under consideration in the Digital Radio proceeding.

Emergency Communications.  The obligations of broadcasters to communicate with their audiences in times of emergency, including communications with the hearing impaired and with audience members who do not speak English, are to be considered in an Emergency Communications docket that the Commission states will be decided soon

LPFM Issues.  Issues about providing LPFM stations with more protections from interference from full power stations, and a potential preference against FM translator stations, will be addressed in a Further Notice of Proposed Rulemaking in which the Commission will soon be receiving comments (see our post here)

Payola, Video News Releases and Sponsorship Identification.  The Commission currently has proceedings underway to enforce its payola rules in specific cases, and to gather more information about the use of Video News Releases (VNRs) by broadcasters, as well as certain specific enforcement actions.  The Commission intends to pursue these issues

Increase Opportunity for New Entrants.  In a separate proceeding adopted at the December meeting, the Commission adopted an order containing specific rules to enhance the opportunities for new entrants into broadcast ownership, thus increasing local media diversity.  That proceeding will also raise a number of new issues.  The text of the new rules adopted in that proceeding, and its proposals for other new rules, has not yet been released, but a number of localism related issues will be discussed in that proceeding.

Comments on this extensive list of proposals for new rules are due only 30 days after a summary of this proceeding is published in the Federal Register.  The Commission has given the public only 30 days to comment on proposals to return the broadcast industry to the regulatory structure of the 1980s.  All broadcasters should be paying attention to these proposals, as they will have a direct impact on their bottom line, and will also create numerous traps into which a broadcaster can fall at renewal time.  The five and ten thousand dollar fines that we saw in the last renewal cycle for stations that did not complete all of their quarterly issues programs lists may well be nothing compared to fines for violating some or all of these new standards if adopted.  Pay attention to this proceeding!

 

 
Tags: , , , , , , , , , , , ,
Posted on December 18, 2007 by David Oxenford

FCC Adopts Localism Report and Starts Rulemaking to Consider Adopting New Public Interest Obligations for Broadcasters

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

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

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

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

The proposal for the establishment of a community advisory board would mark a return to the "ascertainment" process - a process that resulted in much litigation in the 1970s and early 1980s before it was done away with in 1984.  That process required that each broadcast licensee meet with specific, identifiable groups of community leaders every six months to assess the needs of the community so that those needs could be addressed in public service programs.  When the process was abolished in 1984, the Commission noted that it had produced much litigation over whether the mandatory details of the process were observed by licensees, but it never resulted in any significant sanction for a broadcaster.  It is curious that now, 24 years later, the FCC seems to think that the same type of process will produce a different result.

Similarly, the quantitative public interest requirements that mandated specific amounts of news and public affairs programs to avoid special scrutiny of a license renewal application, were also done away with in 1984.  These rules were abolished in the belief that marketplace competition would insure that each station served the community in its own way to avoid becoming irrelevant and being replaced by a marketplace competitor.  Now, the FCC is thinking of reimposing requirements on broadcasters, though it is thus far unclear what those requirements would be.  There was some discussion at the FCC meeting that the requirements would include a mandatory amount of local programming, though whether that would be further broken down to require specific amounts of news and public affairs programming seemed to be open to comment.

 At the meeting and at the Press Conference following the meeting, there was also discussion of other issues that would be addressed in the Notice of Proposed Rulemaking.  These apparently include some requirement for broadcasters to report on their music selection process.  Though not outlawing national playlists (if such things exist), the FCC seemed intent on seeing how radio broadcasters select the music that they play, and on possibly mandating that some local music be played on each radio station.  Issues of payola may also be considered in the Notice.  The FCC was also concerned about the responsiveness of broadcasters to local emergencies.  To address that perceived concern, the FCC seems to be proposing to require main studios in the station's community of license and to require that these studios be manned whenever a station is in operation.  A decade ago, when the rules required manned main studios during all hours of operations were abolished, many stations started round-the-clock operations, freed from the cost of having to man the studio during the "graveyard shift" during overnight hours.  Would new rules bringing back the requirements that stations be manned during all hours actually result in less programming being aired?  That may be one issue that the FCC is forced to address as this proceeding continues.

This proceeding will seemingly hit hardest at smaller, local stations. While some broadcast critics seem to think that these proposals can easily be addressed by broadcasters, often their focus is on big market, big media stations.  Small "Mom and Pop" stations are often ignored in the calculus used to weigh such regulatory proposals.  Often Mom and Pop barely have the staff to keep the station in operation, much less to deal with paperwork and processes that don't contribute to meeting payroll or the over-the-air product.  Hopefully, once the Commission provides the specifics of its proposals and the deadlines for comment on these proceedings, stations of all kinds will make clear to the Commission the impact that these proposals will have on their operations. 

 
Tags: , , , , , , , , , , ,
Posted on December 13, 2007 by David Oxenford

Moving Forward Back to 1980 - The FCC Set to Conclude that Specific Public Interest Obigations are Required for Broadcasters

As we wrote earlier this week, the FCC is to consider at its meeting next Tuesday a Report on the results of its "Localism" proceeding, and a Notice of Proposed Rulemaking seeking public comment on the findings contained in the Report.  From rumors going around Washington today, that Notice may ask for comments on tentative findings that would roll back of much of the broadcast deregulation of the last 25 years.   Rumors are that the Commission will be issuing "tentative conclusions" determining that the FCC should re-impose specific ascertainment requirements of some sort (requiring that broadcasters regularly meet with specific types of community leaders to get their input on station programming).  Also, the Commission will tentatively conclude that there should be quantitative programming requirements - that each station do a specific amount of local programming and perhaps specific amounts of news, public affairs other types of programs each week. If a licensee does not meet the requirements, the station's license renewal application would not be granted routinely by the FCC's staff, but instead would be subject to an additional level of scrutiny by the full Commission. The Commission is also apparently proposing that it return to the old rules that all stations have a manned main studio during all hours of operation. There is reportedly also a proposal that stations report to the FCC about how they decide what music they play.

Staring in the early 1980s, the FCC did away with many of the specific, detailed programming requirements that had previously bound broadcasters.  These requirements were quite burdensome, especially for small stations and stations in small markets with limited staffs.  Rather than spending their time on broadcast operations, station staff had to make sure that their operations met programming standards imposed from Washington, dictating the government's ideas of what was good for the station's audience, even if the station might feel, because of its format or the demographics of its audience that a particular type of programming did not serve the needs of its community.  In the mid-1980s, the FCC concluded that these rules were no longer necessary, as it was concluded that there was enough media diversity that the marketplace would dictate that broadcasters serve their audiences with appropriate content that met the needs of that audience as, if they did not, some other broadcaster would.  The economic incentive of the fear of the loss of audience to a competitor who better served the public was deemed enough to insure that the broadcaster acted responsibly.
.

Now, here we are 25 years later, when the number of broadcast stations has doubled from the mid-1980s, and when there is all sorts of other competition that forces the broadcaster to serve its community, and the FCC is looking to reimpose a paternalistic regime where all stations have to broadcast specific types of content to avoid license renewal difficulties?  In today's world, with satellite and Internet radio and video and all of the other digital choices of entertainment, the broadcaster is forced by his or her self-interest to address what the local audience finds relevant, or the broadcaster will have that audience abandon the station for some other medium.  Now, more than ever, specific quantitative standards for broadcast programs are not needed. 

While the FCC and others seem to yearn for the "good old days", what really did the old rules mandate?  They required specific amounts of public affairs programs, so that usually meant that every radio station in a market was doing boring talk programs on a Sunday morning to satisfy the requirements.  And no one listened, and there was no choice of what to hear during those hours.  Every station was required to do specifically labeled "news" programs.  In the old days, most stations ran network newscasts to help fulfill these requirements, even though the audience of a particular station might not care about hard news.  Now, broadcasters use many different methodologies to determine the needs of their audiences, and meet those needs though "information" about local events supplied by the broadcaster  but maybe not in a traditional format, but perhaps as part of an entertainment format, but in a way that nevertheless builds up a  bond with the local community.  Do we want to do away with that flexibility so that someone in Washington can dictate the type of programming that best serves the public?

These findings by the Commission have not been made, and broadcasters can still submit letters or comments before the end of the comment period at 5:30 Eastern time on Friday, December 14. And then whatever proposals are ultimately adopted by the Commission will be available for comment as part of the Notice of Proposed Rulemaking.  Clearly, this is a proceeding in which all broadcasters should participate. 

Tags: , , , , , , , ,