Posted on April 20, 2008 by Brendan Holland

Comments on Localism Proceeding Due April 28; Congress Chimes In

The deadline for submitting comments in the Commission's Localism rule making proceeding is fast approaching.  Comments are due by April 28th, and can be filed electronically through the FCC's Electronic Comment Filing System.  This proceeding contains a number of significant proposals and could possibly re-institute regulations that were lifted from the broadcast industry decades ago.  Formal ascertainment through community advisory boards and possibly other means, requirements for manning main studios during all hours of operation of broadcast stations, imposing quantitative programming requirements, and requiring that main studios be maintained within a station's community of license are just a few of the many proposals the FCC is considering.  See our more detailed summary here.  This proceeding seeks input on these and other potentially burdensome requirements, many of which were eliminated by the Commission long ago, and some of which go beyond what the FCC has ever required before.   Given the potential impact this proceeding could have on broadcast stations, broadcasters are encouraged to file comments in this important rule making proceeding.   When submitting comments, commenters should be sure to reference the docket number for this rule making, MB Docket No. 04-233.

Some members of Congress have already chimed in in this proceeding and submitted comments opposing the Commission's localism proposals.  Over 120 members of Congress signed on to a letter addressed to Chairman Martin urging the Commission to avoid imposing additional regulations on broadcasters and to carefully consider the cost and effect that such regulation would have on the industry.  A copy of the letter is available here.  A summary of the letter posted on Rep. Marsha Blackburn's web site characterizes the localism proceeding as an attempt to "restore a 1970s era regulatory regime for local broadcasters." 

In the 1980s, the FCC looked at the competitive marketplace as justification for deregulation - finding that broadcasters, as a matter of self-preservation, would find their own ways of competing in their local markets, or they would perish.  Now, when the marketplace is so much more competitive, the FCC is proposing to bring back archaic regulations potentially requiring all stations in all markets to identical amounts of news, public affairs and local programs.  As we wrote recently, this simply does not make sense in a incredibly competitive media marketplace, where each station is looking to serve a unique audience that may or may not have interest in any specific category of programming.  Does it really make sense for an all sports station to have to do specific amounts of electoral coverage?  Or for their to be local music requirements - but only on those stations that choose to play music? 

And, as we wrote just last week, the burden of any paperwork requirement falls most heavily on the small broadcaster.  While dealing with mandatory paperwork burdens imposed by community advisory boards, mandatory focus groups, and quantitative programming obligations may be something that can be absorbed by a New York City station with 100 employees, how will it be handled by a station in some small town in Oklahoma that may have only 3 or 4 full-time employees? 

The real, practical effects of these rules simply have not been evaluated by the FCC.  While the rules may sound good in theory to those isolated inside the Beltway, how they will function in practice needs to be made clear to the Commission.  So file your comments by April 28th to be heard on the direction that the FCC will take for the future of broadcast regulation. 

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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 6, 2007 by David Oxenford

The Return of the Fairness Doctrine?

Last week, House Commerce and Energy Committee Chairman John Dingell reportedly stated that he favored the return of the Fairness Doctrine, and couldn't see why broadcasters would be opposed.  We've suggested reasons, here and here.  But the reports are that Congressman Dingell may try to move legislation to accomplish the return of the Doctrine later this year.

But, in good news for broadcasters, Congressman Dingell said that he didn't foresee any action on violence regulation this year - absent some triggering event - presumably something like the Janet Jackson incident which galvanized Congress into action to raise indecency penalties.  Perhaps one less concern for broadcasters, but the Fairness Doctrine appears to be a real concern to watch.

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Posted on May 6, 2007 by David Oxenford

Radio Shock Jocks in the News - Calls for Regulation to Follow?

The front page of the Sunday New York Times featured a story titled "Shock Radio Shrugs at Imus's Fall And Roughs Up the Usual Victims."  The story reports on radio station talk programming and how the Times' reporters found numerous instances of what they refer to as "coarse, sexually explicit banter" and "meanness."  The Times reports that these programs could lead the announcers and the stations owners into dangerous territory - either from FCC fines or through advertiser cancellations.  The Times also correctly indicates that the FCC usually does not initiate actions against such programs based on its own monitoring, but instead based on listener complaints - almost an open invitation for such complaints to be filed based on the paper's report.  With reports such as this hitting the popular press, after being brought to the forefront of public attention by the Imus affair, and earlier this year by the Sacramento contest gone wrong for the the Wii (here), can calls for regulation be far behind?

The Times own report asks the question as to whether the FCC or Congress will step up regulation in light of the Imus affair.  Interestingly, it avoids the questions raised by its own reports as to where lines would be drawn in any regulations.  For instance, in the story, the Times identified some programming that might cause concern under FCC indecency guidelines depending on the context in which the cited material was used, the report also cites several instances which assuredly do not fit within any FCC prohibitions.  In fact, some of the samples cited by the article do not seem much more "coarse" than what you might find on some Sunday morning or cable television news-talk programming.  For instance, the Times cites, seemingly as an example of "crude remarks," statements made on the Mancow syndicated radio talk programming, where Mancow allegedly asserted that radical Muslims "would not stop until they had flattened American religion like a steamroller" and then went on to say that he didn't want his children to be killed or "brainwashed" into Islamic beliefs.  While I'm sure that the Mancow language was not the same as that which might be used on a political talk program - aren't similar expressions about the goals of radical Islam often aired on such news talk programs - often by members of the political establishment?  Would the Times want to regulate the discussion of ideas based on how or where they were expressed?  In any content regulation, lines are hard to draw.

The report also highlights the discussion of sexual subjects on Spanish language stations - suggesting that these stations may have indecent content that the FCC is not finding. 

With the New York Times and other publications focusing on content on broadcast stations, will more regulation follow?   As we have warned in connection with so many other broadcast programming issues, with the upcoming election, be alert for the possibility of action in Congress.
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Posted on April 28, 2007 by David Oxenford

Violence on Television - FCC Issues Report Suggesting That Congressional Action Is Appropriate

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

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

 

The FCC's Report also has an extensive discussion of how any regulations would define excessively violent programming.  We have previously speculated on this issue, here.  The Commission's discussion refers repeatedly to its regulation of indecency as providing a model for regulation of violent programming.  The report concludes that a standard which restricts airing of violence that is "patently offensive" would be appropriate, and would meet the FCC's criteria of being narrow enough to meet judicial precedent on when content can be regulated consistent with the First Amendment, and specific enough for those being regulated to know what is and is not prohibited.  Given the issues that have arisen in the indecency context over where lines are drawn (where regulation has a long history), one wonders whether this standard could ever provide sufficient guidance for broadcasters. 

In its final sections, the Commission recommends actions that Congress could take.  The recommendation includes not only the proposal that Congress take steps to restrict violent programming on broadcast television to specific safe harbors, but it even suggests that cable and satellite TV adopt violence-free tiers, resurrecting Chairman Martin's interest in a la carte programming where consumers pay only for the programming they want to receive - an issue that is opposed as being unworkable by most cable operators and programmers for many reasons , including the fact that such a system is likely to contribute to less diverse programming as certain niche programming channels may not get enough support in an a la carte world to survive.    Certainly tying two controversial issues together would not make any Congressional action easier to pass.  In fact, given the constitutional and political issues that will arise from any such attempt - one almost wonders if this whole proposal isn't just a political move rather than one where regulation is really expected.

In any event, this Report goes to Congress - who will have to take the next steps on any regulatory efforts.  In the long run up to next year's elections, who knows what we will see.
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