Posted on June 14, 2007 by David Oxenford

Enhanced Public Interest Requirements for TV Too?

In our recent summary of the Commission's order on Digital Radio, we wrote about the Further Notice of Proposed Rulemaking that raised specific proposals to adopt new rules regulating the public interest obligations of radio broadcasters.  These proposals included the possible requirements for a standardized disclosure form for a stations public service programs, limits on a station's ability to originate programming from locations other than the station's main studio, and possible limitations on the current ability of stations to operate without manned studios.  A recent Commission decision reminds television broadcasters that there is another proceeding - one six years old - that proposes many of the same restrictions on television broadcasters.  Does the recent mention of this proceeding that so closely parallels the recent radio proposals indicate that some action may soon be forthcoming on the TV proceeding?

The TV proceeding was mentioned in an FCC decision released last week rejecting Petitions to Deny that had been filed against a number of license renewal applications for television stations in Wisconsin and Illinois alleging that the stations had not adequately served the public interest through the broadcast of issue responsive programming, especially programming covering election issues.  In rejecting those Petitions, the FCC stated that its ability to second guess the editorial discretion of a licensee was limited by the First Amendment and by the Communications Act's prohibition against broadcast censorship.  In this case, the FCC said that the showing made by the Petitioner was not sufficient to demonstrate that the stations had not served the public interest of their communities.  However, the decision noted that the Commission was considering quantitative standards for evaluating the public service of broadcast licensees, citing to the long-pending rulemaking proceeding, and implying that the evaluation of these licensees might have been at least somewhat different had these proposed standards been in place.

The pending proceeding to set more detailed public interest standards for TV broadcasters has origins very similar to the one now pending for radio, growing out of the FCC proceeding on digital television and the permission given to TV broadcasters to operate multiple digital programming streams.  In adopting those proposals, the FCC decided that it had to consider what public interest standards should apply to these multiple streams, and asked for public comment on those standards, and whether they should apply to analog programming as well.  The text of the Commission's proposal,  which can be found here, raises a number of issues including the following:

  • Whether to adopt a single standardized form on which broadcasters would report on their programming responsive to the public interest
  • What kind of information should be required on this form, tentatively concluding that reporting should be required on the percentages of specific types of programming (e.g. news and public affairs) provided by stations and on the amount of closed captioned and video description programming. The notice also asked what other information might be helpful in defining the service provided by stations (e.g. information about the specific efforts to address local political issues)
  • Should broadcasters be required to report on their efforts to identify the issues of importance to their community?
  • Whether broadcasters should be obligated to report on activities (e.g. fundraisers) that they undertake for the betterment of the community in addition to their over-the-air programming
  • Whether the broadcaster's public inspection file should be maintained on station websites

Many of these proposals echo those recently made by Commissioner Copps in his Op-Ed piece in the New York Times, which we commented on here.  Bringing back specific quantification of the types of programming offered by broadcasters and reporting on how they determine what the public is concerned about would bring broadcasters back to the state of the FCC rules as they existed until the middle of the 1980s.  Then, the Commission concluded that these rules were unnecessary, as the marketplace would insure that broadcasters kept their community in mind in making programming decisions.  Now, 20 years later, when marketplace competition has markedly increased, do broadcasters really need to be told how to serve their communities?  We'll see if the Commission thinks that they do when it finally resolves this proceeding. 
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Posted on May 31, 2007 by David Oxenford

FCC Issues Rules on Digital Radio - With Some Surprises that Could Eventually Impact Analog Operations

The FCC today issued the long-awaited text of its decision on Digital Audio radio - the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future - 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues - some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas - one to be used solely for digital use - upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below. 

The additional actions taken by the FCC and announced in the Order include the following:
  • Holding that a party that does a time brokerage agreement for more than 15% of any digital stream offered by another station has an attributable interest in the full station.  Thus, an owner who has a full complement of stations that he owns in a market cannot exceed the multiple ownership limitations by programming a digital over-the-air stream of another broadcaster in his market.
  • Rejected all objections to full-powered operations by grandfathered super-powered stations and short-spaced stations, finding that such a limitation was beyond the scope of this proceeding, and that no compelling reason for these limitations had been shown - but promised to monitor the situation.
  • Delayed consideration of whether noncommercial stations could use some of their digital capacity to offer commercial programming.
  • Permitted time brokerage of digital channels under the same rules that apply to a station's main analog channel.
  • Found it premature to adopt rules for the full transition to digital operations -  and adopted no obligations for any minimum operations in digital.  So the choice of whether to operate digitally is fully up to the broadcaster.
  • Limited operation of subscription services on digital channels to those specifically authorized following a request for experimental authority, until after the Commission completes consideration of the comments filed in response to its Further Notice.
  • Applied most standard programming obligations to digital streams - including the political rules and sponsorship identification (including payola rules).
  • Applied EAS rules to digital radio channels just as they apply to analog channels.
  • Adopted station identification rules requiring that the station use its main station call letters, followed by the community of license, and some identification, either orally or in text on the digital receiver,  that a listener is listening to a digital stream (e.g. "This is WXYZ digital channel 1, Anytown, USA").  As with a station's normal legal ID, the frequency of the station can be inserted between the call letters and the city of license.

In addition to these rules, the FCC adopted a Second Further Notice of Proposed Rulemaking.  Not only does this Further Notice address the issues listed above of allowing the commercial use of some digital capacity of noncommercial stations, and allowing the use of subscription services on digital streams, but it goes much further.  It suggests a number of revisions to FCC rules  - some of which would apply to analog as well as digital operations.  These include:

  • A proposal that public files for radio stations be kept digitally on a station's website.
  • The possible use of a standardized disclosure statement for reporting the public interest performance of broadcasters.
  • The possible elimination of relaxed main studio and program origination requirements, which no longer require the origination of any programming at a main studio.
  • A possible requirement that stations be manned, cutting back on recent Commission rulings that allow for unmanned, automated operations during nighttime and weekend hours.  in particular, the FCC points to the automation of EAS and how that has led to some problems in cases of off-hours emergencies.

Addressing these most important issues will need careful attention from broadcasters, as these issues may well impact all stations - not just those who choose to operate digitally.  Comments will be due 60 days after the Order is published in the Federal Register.  Replies will be due 30 days later. 

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Posted on May 15, 2007 by David Oxenford

Radio Items Missing In Action at the FCC

Two long awaited broadcast items seem to be missing in action at the FCC. Both the final rules on digital radio ("HD radio") and the Commission’s Notice of Proposed rulemaking on using FM translators to fill in gaps of the signals of AM stations, while expected quite a while ago, have still not been released by the FCC. The digital radio item, adopting rules on digital radio, eliminating the need to file for experimental authority for multi-channel FM operations and allowing AM stations to operate digitally at night, was adopted by the FCC at its meeting in March, yet the final text of the decision still hasn’t been released.  As the text has not been released, the effective date of the new rules has not been set.  Those AM stations ready to kick on their nighttime digital operations continue to wait.

As we explained in our previous posting on this matter, here, the digital radio order also contains a Further Notice of Proposed Rulemaking, addressing issues such as the public interest obligations of broadcasters on their multicast digital channels. That was one of the items that was supposedly delayed the action that finally occurred at the March meeting, and perhaps it is delaying the release of the text of the order in this proceeding

Many also expected that the Commission’s Notice of Proposed Rulemaking on allowing AM stations to use FM translators to fill in gaps in their service areas, particularly at night, would be released by now. See our post on the comments of Commissioner McDowell at the NAB Leadership Conference in February, here. Yet that Notice also has yet to surface from the FCC. As we’ve remarked before, there are many issues pending with respect to FM translators (including their relationships with LPFM stations), so this proceeding is quite complicated, again perhaps explaining the delays.

Nevertheless, broadcasters remain anxious for these actions from the FCC on these very important issues. It is interesting how, on some issues, the FCC can move remarkably fast (for instance in issuing the lengthy Notice of Proposed Rulemaking on setting the auction rules for the 700 MHz spectrum reclaimed from analog television, despite some very contentious issues), yet other proceedings seem to lag. Let’s hope that the lag in these cases isn’t for much longer.

 
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