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

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

February 1st marks the deadline for two FCC EEO requirements.  First, by February 1st, radio and television stations located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare their Annual EEO Public File Reports. Specifically, stations or Station Employment Units (SEUs) in those states with five or more full time employees (30 hours or more per week) 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 Web site, if any station in the SEU has a Web site, all by Feb. 1. The Annual EEO Public File Report summarizes the hiring and EEO activities conducted by the station or SEU during the past 12 months. The Report provides information about the full time job positions filled in the last year, the recruitment sources used to fill those positions, and the outreach activities that the station or SEU performed during the year. In preparing their Annual Reports, stations are encouraged to carefully review their EEO activities and take the time to organize their records. Stations should have appropriate documentation to back up each of the recruitment sources used for each job opening, as well as for each outreach activity. This annual report is also a good time for the station or employment unit to assess the success of its outreach and the efficacy of its recruitment sources, and to make any adjustments necessary to improve EEO compliance in the coming year. A copy of our longer EEO primer can be found here.

Second, in addition to preparing the Annual EEO Public File Report, by February 1 television stations in Kansas, Nebraska, and Oklahoma , as well as larger radio stations in New Jersey and New York (i.e., those with eleven or more full-time employees) must prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  The Form 397 provides the FCC with copies of the SEU's two most recent Annual EEO Public File Reports, and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures. While normally the Annual Report is simply prepared and placed in the station's public file and on the website, at the mid-point of the license term stations must actually provide the FCC with copies of its two most recent Reports.  More information about both of these February 1 filing deadlines can be found in our recent client advisory available here.

• 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.

• 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

Last Friday we posted about the FCC's announcement that it would open a filing window in December for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Today, the FCC revised the timing of that window and postponed the opening until February 2010.  Accordingly, rather than accepting applications for these vacant noncommercial allocations in December, the window for filing will now be from February 19 through February 26, 2010.  In addition, the accompanying freeze on the filing of commercial and noncommercial minor modifications will now go into effect on February 6th and last through the closing of the window on February 26, 2010.  The FCC postponed the window in response to a request from a group of noncommercial entities and associations who said that two months would not be enough time for interested applicants to get approval from their boards and pull together an application.  The FCC agreed and pushed the date back.  So noncommercial entities interested in filing for these new stations have some additional time to prepare.  Further information is available in our earlier blog and in the FCC's Public Notice released today. 

• Email This
• Print
• Comments (6)
• 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

The FCC today announced the opening of a filing window for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Applications on FCC Form 340 will be accepted from December 11th through December 18th for these vacant FM allotments in the non-reserved band between Channels 221 and 300.  A full listing of the allotments that are available can be found here.  Although the vacant channels are in the non-reserved FM Band these particular allocations have been reserved exclusively for noncommercial use.  Thus, the window is restricted to noncommercial educational applicants only.

In the event that multiple applications are filed seeking the same allotment, then the channel will be awarded by applying the Commission's comparative point system for noncommercial applicants.  Further details on filing an application can be found in today's Public Notice, and complete step-by-step instructions are available on the Commission's website here. 

In order to provide stability and predictability for applicants interested in filing for these vacant allotments, the FCC is imposing a freeze on the filing of minor change applications for both commercial and noncommercial FM radio stations.  The freeze will go into effect after 11:59 PM on November 25, 2009 and remain in effect through the close of the filing window.  Accordingly, any existing FM stations that intend to file a minor modification in November and December should plan ahead so they don't get delayed by the freeze.  In addition, the FCC has also imposed a freeze, effective immediately, on any applications proposing to change the reference coordinates for these 67 allotments.  Similarly, petitions or counterproposals proposing a change in the class, channel, or community of license of any of the allotments will not be accepted until December 19th, after the filing window has closed. 

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

The FCC's auction of 122 FM radio licenses came to a close last week with nearly a third of the licenses -- 37 to be precise -- remaining unsold at the closing hammer.  The outcome of the auction, which raised a net total of just $5.25 million on the sale of 85 licenses, may be seen by some as but the latest example of the current state of the radio industry.  As others have noted , the auction did not attract much attention from the beginning, with many of the qualified bidders depositing only small amounts of money, signaling that interest in the slate of licenses was not very keen. 

Admittedly, the large number of unsold licenses and the small total earnings for the 85 licenses that did sell is a reflection of the fact that many of the licenses being offered were smaller facilities in less populated areas, however, the auction results also reflect that it is a buyer's market these days.  The fact that 37 licenses went unsold meant that not a single bidder was willing to pay even the opening bid amounts for over three dozen of the licenses.  In the current marketplace, the FCC's opening price for these licenses was simply thought to be too high.  Further, of the 85 licenses that did sell, 33 of them were virtually uncontested, with the winning bid being submitted in the first, second, or third round.  Only a handful of the licenses saw active bidding throughout the auction. 

For those that succeeded in picking up a station in the auction, the 20% down payment is due by October 2, with the final payment and long form applications due by October 19, 2009.  A copy of the FCC's closing Public Notice is available here.  And for now, the unsold licenses will remain with the FCC to be re-auctioned at some point in the future, hopefully to a better result. 

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

With today's Federal Register publication of the FCC's recent Order amending the rules governing FM Translator stations, the date is officially set at October 1st for when AM stations can begin to rebroadcast their signals on FM translators.   Beginning October 1st, the long-standing prohibition on rebroadcasting AM radio on FM translators is off the books and translators are free to pick up an AM signal.  As of that date, no further authority will be required from the FCC in order for an FM translator to rebroadcast an AM station. 

In fact, any existing STAs (Special Temporary Authority) previously granted by the Commission for such rebroadcasts will be canceled as of October 1st, as they will no longer be necessary.  Accordingly, FM translator stations that are currently rebroadcasting an AM signal pursuant to an STA should follow the FCC's standard procedures and simply file a letter with the FCC indicating the full power station that is being carried.  Just as for the rebroadcast of an FM station, a translator stations must notify the Commission in writing of any change in the station being rebroadcast. 

As we summarized earlier, the rules governing rebroadcasts of AM stations are fairly similar to those for rebroadcasting FM.  The main issue with respect to AM rebroadcasts is that no portion of the 60 dBu contour of the FM translator station may extend beyond the smaller of:  (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station.  Further, AM broadcast licensees with Class D (daytime-only) facilities will be allowed to originate programming on such FM translators during periods when the AM station is not operating.  So daytime-only AM stations can continue operating at night on a fill-in FM translator. 

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

The FCC yesterday issued another in its series of EEO random audit notices, asking that approximately 170 radio stations nationwide provide information about their hiring practices.  Information requested includes the last two years worth of broadcast EEO Public File reports, plus more complete documentation of the efforts outlined in the Public File reports and demonstrating that the information provided in the annual report was really conducted and accurately reported.  In addition, the FCC asks that a station provide an explanation if their most recent EEO public fie report cannot be found on the Station's website.  The FCC's Public Notice about this audit, which lists the stations that must respond, can be found here.  That Public Notice also reminds broadcasters of the obligation to post the EEO public file report on the station's website, perhaps indicating that the FCC has been investigating and has found instances where this is not being done.  Responses to the audit must be filed by September 21.  A form of the EEO audit letter is available here. 

On the same day as the FCC issued this audit for radio stations, it issued a Public Notice to remind Multi-Channel Video Programming Distributors (MVPDs) with six or more full-time employees, including cable systems, of their obligation to file by September 30 their Annual EEO Program Reports on FCC Form 396-C .  This form is to be filed through the FCC's electronic filing system.  This notice also reminds certain cable systems of the need to submit supplemental information about their hiring efforts to the FCC. 

• 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

On Tuesday, the FCC released a public notice reminding stations of their obligation to provide a consumer referral telephone number to the FCC and to publicize that number so that viewers will have a local number to call for specific information about the station’s transition to DTV.

In addition, the FCC also reminded stations that they should be prepared to answer calls from viewers in the hours immediately after their transition and in the days that follow. The FCC’s rules require that stations offer information and assistance for viewers having difficulty receiving their signal. Per the FCC:  The station’s consumer referral number "should be staffed with personnel prepared to answer complex questions from viewers, particularly regarding necessary actions to take to get reception in specific locations, and other engineering issues."  In particular, stations must be prepared and staffed for an increased volume of calls, both referred from the FCC’s National Call Center and locally originating, at the time the station terminates its analog signal.  The FCC’s Call Center will be available 24 hours a day for the days surrounding the June 12 transition, forwarding calls directly to stations where necessary.

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

Further information from the FCC regarding the DTV transition, this time dealing with call signs. The FCC has announced that following the DTV transition, full power television stations may either keep their current call signs (i.e. WXYZ or WXYZ-TV) or they may formally change to use "-DT" instead, as in "WXYZ-DT".

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

We've written extensively about the FCC's proposals to turn back the hands of time, and return to the regulatory scheme that existed prior to the early 1980s by mandating that broadcasters serve their local communities - in a manner dictated by the FCC.  In the 1980s, the FCC decided that it did not need to micromanage the programming of broadcasters, as marketplace forces would ensure that stations met the public interest.  If they did not provide the services that people wanted, the FCC reasoned in the 1980s, the people would stop listening or watching - hurting the broadcaster who was not serving its community in the pocketbook.  While the FCC is now looking to retreat from this position - apparently believing that the market is no longer capable of insuring that broadcasters serve their communities, evidence that the marketplace will provide localism is now available on that most unregulated of media - the Internet.  Tomorrow, the Huffington Post, a website that had heretofore concentrated on national stories, will be launching a version of its product targeted to Chicago and, according to a story on American Public Media's Marketplace, it will be expanding by providing local service in many other markets in the next 18 months.

This is not the only evidence that the Internet is going local.  Local news sites are springing up in many communities. quite often with no ties to "established" media.  Micro-targeting of on-line ad sales shows that marketers know that, if they offer a local product, they need to reach local people to buy that product, and the Net more and more can provide that targeting.  Many websites, from registration information, IP address or other identifying information, greet users of a site with localized information - weather, TV listings or event information for the particular user's hometown.  Thus, while the FCC seems to believe that that marketplace is incapable of guaranteeing local content to serve local communities, the actions of companies on the Internet demonstrate that, if there is a need for a local service, it will be provided - more efficiently and in a way more likely to provide the public with the service that it demands - if it is left to the market to provide.  The Internet does not seem to need the government to dictate how that local service is provided - nor should the broadcaster.  Particularly now, with the broadcast industry hurting economically and facing more competition than ever before, the FCC's actions to seek mandated localism seems to be the wrong solution to a nonexistent problem - and one that will hopefully fade away in the coming months. 

• Email This
• Print
• Comments
• Share Link

In a recent decision, the FCC interpreted its radio multiple ownership rules in a case involving changes in an Arbitron market.  The FCC's rules restrict the number of radio stations that one company can own in a market based on how many stations are in that radio market.  In situations where stations are rated in an Arbitron market, the number of stations is determined by how many stations are in that Arbitron market, as determined by data compiled by the financial analysis firm BIA.  In this case, while the application to acquire the station was pending, BIA came out with its first list of stations that it considered to be in the newly created Arbitron market.  That list showed that, in the new market, the Buyer already owned more stations than allowed by the rules, so acquisition of this additional station was prohibited.  The case stands for the proposition that, while changes in Arbitron markets that allow an acquisition to take place must have been in place for two years to become effective (to prevent owners from gaming the system by making short-term changes), changes that adversely affect the ability of an owner to acquire a station become effective immediately.

According to the decision, at the time that the application in question was filed, the station to be bought was listed by BIA as being in the Manchester, New Hampshire Arbitron market.  The number of stations owned by the Buyer in Manchester was such that the acquisition of the station was permissible at the time the application was filed.  However, Arbitron announced the creation of a new Concord radio market just before the filing of the FCC application for approval of the transfer of control of the radio station.  Soon after the filing of the application, BIA released its list of stations in the new Concord market, and it included a number of the stations owned by Buyer, including the station it was proposing to acquire.  In the new Concord market, the Buyer would have too many stations to permit the acquisition of this station under the restrictions set out in the multiple ownership rules.

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

This evening, at about the close of business on a Friday evening, the FCC issued a decision on an number of indecency complaints involving a five-year old episode of "NYPD Blue."  The Commission fined approximately fifty or so ABC affiliates in the Central and Mountain time zones $27,500 each for airing indecent material.  Specifically, the Commission found that a scene in the episode aired on February 25, 2003 containing adult female nudity to be indecent.  The Commission rejected ABC's seemingly common sense argument that a woman's buttocks are not "sexual organs" within the definition of the indecency rules.  Instead, the FCC has now determined that showing the backside of a naked woman is a violation of the indecency rules if it airs before 10 PM, as it did in the Central and Mountain time zone.  A copy of the FCC's decision can be found here.  If there is a silver lining it is that the FCC imposed the statutory maximum that existed at the time the programming was aired -- $27,500 -- rather the new, stepped up fines.  Further, the Commission fined only those stations about which it received an actual complaint, and not simply all stations in those time zones that aired the episode. 

The stations have until February 11th to either pay the fine or appeal the forfeiture.  This is an accelerated timeframe for responding or paying the fine, as usually Commission gives stations 30 days to respond to a Notice of Apparent Liability for Forfeiture.  It is unclear what the impetus was for the FCC to finally issue a decision on the "NYPD Blue" complaints nearly five years after the episode originally aired and with several challenges on earlier Commission indecency rulings currently pending before the courts.  No word yet on whether ABC and the affected affiliates will appeal the decision, but it seems likely that this indecency decision will join the others already in the pipeline for judicial review.  And in the meantime, broadcasters have been put on notice that a woman's posterior is now officially indecent material.  No word yet on whether showing a man's rear end is equally problematic, but if there's a station willing to air it and a viewer willing to complain, the FCC will undoubtedly tackle that critical issue if and when it arises.   

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