The first item is to determine whether to require that the broadcasters maintain an Online Public Inspection File, is a controversial issue about which we wrote last week. The proposal for the online file grew out of the FCC's Future of Media Report (renamed the Report on the Information Needs of Communities when it was released last year, see our summary here).  In that same report, it was suggested that the FCC relax rules applicable to noncommercial broadcasters that limit their on-air fundraising for third-parties, if that fundraising interrupts the normal course of programming.  The Future of Media Report suggests that this restriction be relaxed so that noncommercial broadcasters be able to do block programming from time to time to raise funds for other noncommercial entities

The TV channel sharing item grow out of the FCC's proposals that hope to recapture some more of the television spectrum to repurpose it for wireless broadband.  Congress recently passed legislation (which we summarized here) to allow incentive auctions to try to entice certain TV broadcasters to give back their spectrum for re-auction by the FCC.  Given that digital television technology allows for one television channel to now transmit several programming streams, the FCC had suggested that one option for broadcasters was for two TV stations to get together, agree to turn one channel back in to the FCC for wireless use while putting both of their programming onto different streams on the second station, splitting auction proceeds,and perhaps even retaining must-carry rights for both streams. See our summary of the FCC's proposals for channel sharing, issued just over a year ago.

Such a channel-sharing program will be but a first step in the long process of clearing some spectrum for wireless broadband. Even if the FCC adopts rules for channel sharing, it must still adopt rules for the spectrum auctions (both the incentive auctions by which TV stations offer to give up their spectrum in exchange for payment) and for the actual bidding on the cleared spectrum by wireless users.  In addition, the FCC will likely want to repack the TV band, moving stations that don't elect to give up their channels to a smaller part of the TV band, to clear the same TV channels so as to provide a consistent spectrum band across the country for wireless use.  That plan, akin to the channel changes that took place when DTV was implemented, is no doubt a much longer, more complex process.  So this is but the first small step toward the FCC trying to implement their plans for wireless broadband operations on what are now TV channels. 

In any event, this may be a very important meeting for broadcasters.  This NPRM on the new public file requirements is also connected to the FCC's proposal to create a disclosure form for public interest programming, which may be addressed next.  Together, these issues may make April a very busy and important month for broadcasters.   

[Corrected 4/9/12, 4 PM to reflect that the FCC meeting will discuss the online public file, not the form for reporting on the public service of broadcasters, as originally indicated] 

The new form documenting the public interest programming of TV stations is proposed to include information on the following types of programs, based on a "composite week" of data - the dates for which may be selected after the fact, potentially requiring the taping of programs so that broadcasters can reach back to get the required data:

• Local news
• Local Civic/Government Affairs ("interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups")
• Local Electoral Affairs
• Closed Captioning and Video Description (i.e. how much video description is being done by a station, and what exceptions to closed captioning are being claimed for programming broadcast on the station)
• Emergency accessibility complaints (complaints filed against a station for not making emergency programming accessible to those with disabilities)

For more concerns about some of the proposals, review our more detailed summary of the proposal, and file comments by January 17, or replies by January 30, in this important proceeding. 

First, the FCC asks a series of questions about how such a form should be structured, and how the information should be collected to be meaningful for those that want to analyze it, but not overly burdensome for the TV stations.   The Commission seems to conclude that the form is necessary - not even asking questions on that basic issue of whether to adopt a standardized form.  The NOI states:

We continue to believe that the use of a standardized disclosure form will facilitate access to information on how licensees are serving the public interest and will allow the public to play a more active role in helping a station meet its obligation to provide programming that addresses the community's needs and interests

The Commission then goes on to discuss the Quarterly Programs Issues lists  ("QPIs") that are currently required to be placed in a station's public file every three months - describing the issues that station management sees as important in the community and the programs that the station has broadcast to address those issues (see our most recent advisory on this obligation, here).  The Commission states that these quarterly reports should be replaced, as broadcasters have been uneven in their recordkeeping of such lists.  Of course, that may be because the FCC has never proscribed any specific form for these reports, nor specifically said what is acceptable and what is unacceptable in connection with such reports.  Seemingly, replacing one form with another (albeit a more complete, detailed new form) may well accomplish nothing if the new report does not have clear and unambiguous instructions - something never adopted for the Quarterly Reports.

• Local news
• Local Civic/Government Affairs ("interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups")
• Local Electoral Affairs
• Closed Captioning and Video Description (i.e. how much video description is being done by a station, and what exceptions to closed captioning are being claimed for programming broadcast on the station)
• Emergency accessibility complaints (complaints filed against a station for not making emergency programming accessible to those with disabilities)

The proposal is to collect this information on the basis of a "composite week" for perhaps two weeks each quarter, as certain public interest groups requesting this information contend that at least two weeks worth of information each quarter is needed to have a statistically valid sample.  These groups also suggest that the days that are included in the composite weeks not be announced until after the day has already passed - meaning that stations would either have to monitor and record this type of programming daily, or record all of its programming so that it could go back after-the-fact to compute the amount of time devoted to these types of programs.  So the adoption of this requirement may in practice require that all broadcast programming be recorded by stations - effectively imposing for an entirely different reason a rule mandating that stations record their programming that was proposed in 2004 during the height of the indecency battles and never adopted.

For each program fitting into the categories specified, the FCC asks whether it can require that broadcasters report on a per segment (as opposed to a per program) basis, i.e. reporting only on those segments of a program that address one of the topics specified above.  The public interest groups suggested that the following information be kept for each program (or each segment) and reported on the form:

• Program/segment title or topic
• Date and time aired
• Whether it was aired on a primary channel or a multicast channel
• Was it first-run programming or had it been aired previously on another channel
• Approximate length
• Was there a sponsor for the program that needs to be disclosed pursuant to the sponsorship identification rules (seemingly asking if it was some sort of Video News Release or other paid segment)
• Was the program aired as part of a shared services, local marketing or news sharing agreement with another station or newspaper in the market

The Commission also proposes that each program fit in only one category.  In other words, an electoral program should not also be counted as a local news segment, and so on.  How these distinctions could be made is unclear.  One would think that most local news would either deal with local electoral or civic and governmental affairs in some way or another.  How to decide where to include programs that fit in more than one category is unclear.

But the biggest question about this form, as it was for the Form 355 (see our analysis here) is "why"?  Why collect this information at all?  The FCC takes great pains to say that it is not establishing any quantitative requirements for a particular amount of programming in any of these categories.  Instead, this is merely an attempt to make this information available to the local residents and others who may desire to study it .  But what would these groups do with this information?  The FCC suggests that they could engage with the stations to be able to help the stations better shape their programming to community needs.  Without such information, we have already seen many cases where citizen's groups have complained to the FCC, particularly at license renewal time, that a station was not programming so as to address issues of importance to some group of local citizens in some way or another.  In those cases, the FCC denied the petitions, saying that broadcasters were free to choose how to serve the public interest, and that there were no specific requirements for particular amounts of programming in these various categories.  If that remains the case, as the FCC suggests in the NOI, why mandate that the many man hours necessary to collect this information be spent, when there is no regulatory purpose for that information?  The FCC asks for a cost benefit analysis, and one would think that there is no regulatory purpose for the information that is collected will be part of any such analysis.

The FCC seems almost as if it is doing the work of collecting information for various groups, so that these groups can challenge the service provided by broadcasters.  In fact, the FCC suggests that, in addition to the categories of information requested, stations be allowed to volunteer additional information about ways in which they are serving the public.  Again, if this form is not to be used for some sort of enforcement purpose, what purpose would the volunteered information serve?  It is almost as if the FCC, and these citizens groups, are operating from a presumption that broadcasters are not serving the public unless they can fill this form up with good stuff - when most viewers of television programming can judge the service of TV stations in the way that they always have - by changing the channel (or, these days, changing the viewing screen to cable or online services) if information that they want is not available on a particular channel.

What is perhaps most confounding is that this detailed information collection is being required of what is perhaps the most transparent industry in the country, in terms of the ability of citizens to judge its output and to collect the information that the government is proposing to mandate that broadcasters provide.  This is not a manufacturing plant, where the output of a factory can only be computed by someone in the factory itself, counting the number of products as they come off the assembly line.  Nor is it like some potentially harmful substance that may be emitted from a smokestack or in waste water, where access to the output might be restricted, and information can only be gleaned with specialized scientific equipment.  In the case of television, all of the information that the FCC asks the broadcaster to collect (and much more) could be collected by any citizen at any time that they want - if they are willing to sit in front of the TV set (or a DVR) and watch the output of the TV station.  It is there for all the world to see and to document, if anyone so desires.  Why does the FCC need to put this burden on the broadcaster?  That is a question that will no doubt be argued in the comments on this NOI. 

The Comment deadline has not yet been set, but will be 30 days after the publication of this order in the Federal Register.  The Commission notes that, at this time, it is not proposing to extend these rules to radio, but that "we believe that we should eventually require radio licensees to replace their issues/programs lists with a standardized from as well."  So this proceeding is crucial for all broadcasters to follow closely and to provide the FCC with the information that it needs to make a rational decision as to the degree to which broadcasters will need to document how they serve the public interest. 

• The FCC proposes that TV broadcasters will need to have an online public file, submitted to and maintained on servers at the FCC rather than on each individual station's website
  • Several Commissioners suggest that the Commission will develop a mechanism for accessible storage of online public files, which may be searchable by the public
  • The online public file form will automatically import other FCC filings that are required to be in the file
  • Until the FCC electronic database is perfected, the documents will be placed online in their current formats
• Letters from the public concerning station operations are proposed to be excluded from the online file out of privacy concerns, though broadcasters will still need to keep those letters in a public file at the station.
• The online public file is proposed to include the political file, which was exempt under the 2007 rule as it would be too burdensome to update that report rapidly during an election season
• The online file is proposed to include additional material not now required to be in the public file, including:
  • Copies of shared services agreements
  • Sponsorship identification information that is now only broadcast on air in connection with the program in which sponsored material is included
• The FCC is currently considering a Notice of Inquiry, a draft of which is apparently circulating among the Commissioners now, that proposes some form of enhanced disclosure form that will replace the Form 355 (and the current Quarterly Programs Issues list) to document the public service provided by TV broadcasters

This is obviously a very important issue for broadcasters, as the potential for new burdensome regulations clearly exists. We wrote about many of the problems with the Form 355 (see, e.g. our article here), and the new file may well impose similar burdens (especially in connection with the obligation to document sponsorship identification material, and at election time with respect to the political file). Moreover, while these proposals are for TV broadcasters only, one can expect that, if they are adopted, there will be proposals to extend them to radio at some point in the future. We will have more about this proposal once the text of the item is released, and will add links to this article once the statements of the Commissioners the FCC public notice are available.

Update - 10/27/2012, 1:15 PM - The Public Notice of the FCC action, which is not very informative, is available here. 

In the Future of Media Report issued by the Commission earlier this year (actually renamed the Report on the Information Needs of Communities), the FCC study group recommended abolishing these 2007 rules, and terminating the proceeding looking at imposing them on radio (see our summary here).  The Report seemed to recognize that the reports were far too burdensome on licensees, and were not reasonably related to the current FCC rules on programming.  In essence, the reports required the collection of lots of information, without any regulatory purpose for the information collected.  In light of these findings, and the 4 year delay in implementing the rules already adopted, it seems safe to conclude that the 2007 rules are probably on their way out.  But the accompanying notice suggesting that the FCC will begin a new rulemaking to look at the online public inspection files, to be hosted by the FCC, raises questions about what will replace the 2007 rules.

This will be an important meeting for broadcasters (one of the few FCC meetings discussing broadcast issues in the last year).  And, as any TV rules may well shape future obligations for radio operators, all broadcasters need to be paying attention to the decisions reached and the suggestions made in the Further Notice of Proposed Rulemaking.  So pay careful attention to the results of this upcoming meeting. 

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.

Radio, too, has its own technical issues to deal with. The Commission will be faced with resolving proposals for increased power for HD Radio operations (In-Band On Channel or IBOC digital radio), which some broadcasters have opposed as holding the potential for adjacent channel interference. The Commission will also be faced with resolving proposals for making the measurement of AM antenna patterns easier but, on a most fundamental level, it has also been asked to recapture some of the television spectrum, including Channel 6 and possibly Channel 5, and to use that spectrum for new radio stations. While some worry about the increased competition that new radio channels could bring, others see the expanded FM band as a way to eliminate congestion on the current band – giving LPFM stations places to operate without restricting FM upgrades or endangering FM translators – and others have even suggested that some or all AM stations could be moved onto these channels. This is likely to be a long-term project, but one that may get serious consideration this year.

Programming, too, may come in for more review this year. The Commission’s rules, adopted a full year ago, requiring TV stations to document in minute detail their public interest programming on Form 355, has never been implemented, as the form has never been approved by the Office of Management and Budget as being in compliance with the Paperwork Reduction Act. As this form required so much new information, for no appreciable purpose, it seems unlikely that it could survive such a review. Thus, the Form may be revised before being implemented, or it may wait for new FCC programming rules to be adopted as part of the FCC’s localism proceeding, mandating some form of public interest programming, which could then be used to justify the collection of some data requested by the questions on Form 355.

Other aspects of the localism proceeding seem likely to be resolved in 2009. The proposal for a fully manned main studio during all hours of operation, located in the station’s city of license, seems to be less likely to be adopted as regulators realize the costs that such a requirement would impose. Yet requirements for some form of mandatory ascertainment of community needs, plus some enhanced disclosure of public interest programming, seem more likely. Some of the proposals rumored to be on the table include requiring that broadcasters be judged by whether they perform certain tasks set out on a menu of options by which they would demonstrate their service of the public interest. One would hope that any set of menu options would be broad enough to recognize all the diverse ways that broadcasters serve their communities, and not so restrictive as to make every station meet the public interest in the same cookie-cutter way, and thus eliminating diversity in approaches that has allowed the broadcast industry to flourish.

The return of the Fairness Doctrine, which many conservative pundits have predicted, is unlikely because of the constitutional and practical problems of implementation. Yet some fear that  mandated political coverage and issue-responsive programming, which is more likely,  may effectively take the place of the Doctrine. Restrictions on violent programming could also be at the top of the Congressional agenda, as Senator Rockefeller, the new head of the Senate Commerce Committee, has supported such regulation in the past. . 

In the advertising world, the FCC will be resolving its embedded advertising and product placement proceeding, where some “public interest” groups have advocated a total ban on such advertising, while others have suggested immediate sponsorship identification, through a crawl or superimposed caption, of any product for which consideration has been paid for its inclusion. The related issue of video news releases – whether stations have to identify on-air anything given them at no charge (e.g. a script, video footage, etc.) before its inclusion into a news report – will also likely be resolved. Some have also suggested that the Commission may be planning some adjustments to its payola rules, though what those changes would be, and how they would improve on the current rules, is hard to fathom.

There is also real concern that the Congressional committees which oversee the FCC may well push proposals for limits on prescription drug advertising. The new chairman of the House Energy and Commerce Committee, Henry Waxman, has favored a moratorium on such advertising while the industry works out rules that restrict various perceived abuses. If industry voluntary agreements don’t satisfy Congress, new restrictions on advertising directed to children are also possible, especially in connection with ads for food considered unhealthy (however that may be defined).

Copyright issues could also impact the broadcast industry this year – perhaps in ways more fundamental than any of those other issues listed above. For radio, we may see the webcasting royalties issue be resolved one way or the other. Congress has given webcasters and the recording industry until February 15 to settle the webcasting royalty issues and, if that doesn’t result in a resolution of the issue, the pending appeals will be argued this year and perhaps resolved by the end of the year. 

2009 will also bring about a renewed attempt by the recording industry to impose a performance royalty on broadcasters for their over-the-air signals, the “performance tax” as it has been labeled by the NAB. That performance royalty would require broadcasters to pay the recording industry and recording artists royalties for the use of music over the air – in addition to the ASCAP, BMI and SESAC royalties that are already paid to the composers. The recording industry was able to get that proposal through the House Judiciary Committee last year, and will make a renewed attempt to have it adopted by Congress. If such an attempt is successful, this could potentially result in the transfer of billions of dollars from broadcasting to the recording industry.

TV has its own copyright issues, as the law permitting Dish and DirecTV to import local broadcast stations into local markets must be renewed, and some have suggested that this might be the time to reexamine the must-carry and retransmission consent process for both cable and satellite. While nothing firm is on the table, this issue could arise just as retransmission consent fees are beginning to offer television broadcasters a meaningful new revenue stream.

All of these issues seem like plenty - but we haven't even discussed the resolution of the indecency cases currently pending before the Supreme Court that should come this year.  The Commission ended 2008 with several large EEO fines, and this year may bring the resolution of long-pending petitions for reconsideration of the current EEO rules, as well as resolution of whether the Form 395 Annual Employment Report  will make its reappearance and whether the information on the form should be available to the public to judge the EEO performance of broadcasters or should the information be used simply for industry profiling.  Commissioner Adelstein suggested that the information should be public in his concurring opinion on these recent fines.  The FCC's change in its multiple ownership rules to allow some broadcast-newspaper combinations is still on appeal as it becomes increasingly irrelevant (as newspaper companies don't have the money to buy broadcast station, and broadcasters probably don't want to buy newspapers), and other issues as to the local radio ownership rules and the attribution of TV JSAs are still pending and may be resolved one day - perhaps this year.  Even political rules may be revisited in 2009 - as the Commission has never issued rules implementing the BCRA requirements, and it also has a long-pending proceeding to determine how to assess spots sold by on-line auctions for lowest unit rate purposes. 

With these (and other) possible changes in the regulatory landscape, one can only hope that the government regulates with a light touch. While the Democrats who have been on the FCC during the Bush years have advocated tough, detailed regulatory mandates, the Obama administration has offered the hope of a less doctrinaire, more inclusive regulatory process. Given the economic outlook for the coming year, and the costs and likely disruptions of the digital transition, an administration that promises hope should deliver some to broadcasters simply by taking a break from excessive regulation to give everyone a chance to adjust to the new realities of 2009. But stayed tuned to these pages to see what develops in this new year. 

We would certainly not be surprised by the FCC lessening the burden that they have imposed on television broadcasters.  We have seen Commission staffers in public forums express surprise at the descriptions of the burdens that these rules place on television broadcasters.  And we have noted the slow pace with which these rules have been rolled out - having been adopted in December, the text of the decision coming out in January, and they still are not effective.  We will all have to watch closely to see if this press report is accurate and the FCC in fact reconsiders its Enhanced Disclosure requirements.  Stay tuned.