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Posted on December 7, 2010 by David Oxenford

FCC Commissioner Copps Calls For Stricter Broadcast Station License Renewal Standards - Could It Happen?

In a speech given last week, FCC Commissioner Michael Copps called for a new regime to review the public interest performance of broadcasters - suggesting that license renewal become a more rigorous exercise for radio and television operators. In his address called "Getting Media Right, A Call to Action", given to the Columbia University School of Journalism, Copps specifically suggested a "Public Value Test" for broadcasters when they file their license renewals. If the broadcaster passes the test, the broadcaster would get a renewal. If the broadcaster did not pass - if it does not show that it has "earned" the right to "use the people's airways" - then the licensee would get a one year probation period to prove that it should keep its license. If it does not improve, then the license would be taken and given to "someone who will use it to serve the public interest."

So what would this Public Value Test look like? The Commissioner suggested that the following factors would be reviewed:

A Meaningful Commitment to News and Public Affairs Programming - an increased commitment to news, local public affairs, election debates and issues oriented programming would be reviewed according to some quantitative benchmarks.
Enhanced Disclosure - requiring broadcasters to provide more information about their programming performance, on the Internet, as the Commissioner believes that information in the public file is "laughable", and also requiring that the FCC review that information at renewal time
Political Advertising Disclosure - requiring more information about the sponsors of political ads
Reflecting Diversity - looking to increase the gender, ethnic and racial ownership of broadcast stations
Community Discovery - requiring that broadcasters be required to, in some formal way, communicate with their communities to determine local programming needs and the interests of various groups within a station's community
Local and independent programming - requiring that broadcasters provide more local and independent programming instead of "homogenized music and entertainment from huge conglomerates - the Commissioner suggesting 25% of local programming being dedicated to local and independent programs. More local PSAs too.
Public Safety - requiring that all broadcasters have a plan to address emergencies and be either staffed during all hours of operation or be otherwise able to respond immediately to any local emergency.

What's likely to happen to these proposals?

This is not the first time that Commissioner Copps has suggested the need for a more rigorous review of a broadcaster’s license renewal application. During the years that Kevin Martin headed the FCC during the second half of the Bush administration, the FCC engaged in a very thorough review of the localism issues, conducting field hearings on these issues around the country, but not reaching any consensus among the various parties involved in the issues.

For broadcasters, it is good that Commissioner Copps recognizes the importance of the broadcast media, and cares about its performance. But there are significant difficulties, as recognized in the comments filed in the localism proceeding, in determining how to quantify any such obligations. One of the biggest difficulties in coming up with any objective standards to evaluate the service that broadcasters provide to their communities is the broad diversity of the broadcast community. Specific quantitative public service requirements that a TV station in New York City might be easily able to meet, might impose a crushing burden on a station in eastern Washington State, most cities in Montana or in the Upper Peninsula of Michigan. A Mom and Pop radio station providing the only service to a county of 10,000 in rural Nebraska is going to be able to provide a much different program service, and to have an entirely different ability to handle specific government mandates, than is a big FM in Los Angeles or Dallas. Even in these cities, a rock and roll radio station is going to be expected by its listeners to provide a wholly different experience than an all news or news talk station. Coming up with standards that try to judge the public interest value of a Senatorial election debate versus promoting a Toys for Tots collection point at a Black Eyed Peas concert in a community is a daunting task.

In the early 1980s, the FCC decided, in its deregulation of radio and later of television, that the marketplace would be able to assure that broadcasters served the needs of their communities. If their programming did not meet the needs of the community, the broadcaster would not be successful and would not be able to continue to operate. At that time, there were essentially half as many broadcast stations as there are now, and nowhere near the number of audio and video competitors that there are today from the myriad of digital sources. It is my sense that much of the wringing of hands over the state of journalism and the future of the media is driven not by empirical evidence that there are fewer outlets for information and expression, as any Google or Bing search of almost any topic, no matter how local, will produce far more information about almost any issue than could have been received from local radio, TV or the newspapers in 1983. Perhaps the concern is that there is no unified single source of that information in each community – when there was a big newspaper, a full-service radio station and a couple of television stations in every market. In the broadcast world alone, as the number of stations has grown in answer to demands for more diversity and the broader inclusion of new owners into the media, stations have been forced to differentiate themselves, serving a smaller but targeted portion of the overall market - but often a dedicated set of listeners or viewers. Where there is intense competition for viewers and listeners, each outlet today needs to be more focused on delivering the content that its target audience wants. In very few markets do you have the single full service radio station that you would have found 20 or 30 years ago.

Digital and other media competition has also made specialization more important, and increased the burden that government mandates as to the types of programming a station broadcasts would put on a station. Forcing a subset of the content providers (FCC licensees) to ignore the demands of the marketplace for any substantial portion of its broadcast day to instead meet the demands of the government will cause listeners to go to another source that is doing what they want – and that source may well be a digital media source not covered by FCC rules, and not providing any public service programming whatsoever. The end of the broadcast monopoly on audio and video programming has also dictated, in my opinion, the end of the FCC’s ability to dictate what the public should be hearing or seeing on their stations. Instead, the successful stations must do what they can to meet the needs of their audience, or they will perish from competition from new and old media alike.

This is obviously a contentious issue, and there probably is no single answer as to whether the government can force broadcasters to meet some objective public interest standard. I’d be interested in reader reactions as to whether the FCC can or should embark on a proceeding to address the issues identified by Commissioner Copps in his speech last week.

Tags: Commissioner michael copps, Programming Regulations, Public Interest Obligations/Localism, license renewal, programming obligations for broadcasters, public service requirements, quantitative programming requirements, standards for license renewal

Posted on October 29, 2010 by David Oxenford

EEO Review, Public File Issues, Contest Rules, and License Renewal DIscussed in Seminars at Joint Convention of Oregon and Washington State Broadcast Associations

The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week's joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states. Initially, I conducted a seminar for broadcasters providing a refresher on their EEO recruiting obligations set out under FCC rules. With some public interest groups calling for stricter enforcement of a broadcaster's EEO obligations, and with the license renewals for Oregon and Washington State radio broadcasters coming up in 2013 (with TV the next year), broadcasters cannot slack off on these important obligations to widely disseminate information about job openings and to educate their communities about broadcast employment issues as required by the FCC rules. Slides from my PowerPoint presentation on a broadcaster's EEO obligations are available here. Broadcasters looking for more information on EEO obligations can review the Davis Wright Tremaine Guide to the EEO rules, here, and our most recent reminder about the obligations for the annual EEO public inspection file report, here.

At a second session, we discussed the variety of legal issues facing broadcasters in the current environment. Many of the same issues discussed in this session were also discussed in my Top Ten List of Legal Issues to Keep Broadcasters Awake at Night, details of which can be found here. Some specific questions were raised during the Oregon-Washington session include questions about the FCC rules covering contests that stations conduct, and the rules that apply to such contests. See our blog post on some of those issues here and here. The obligations for the public file of broadcasters are also set out in our advisory, here. Another issue that broadcasters should remember is the new obligation for their advertising contracts to include terms that state that advertising is not sold for any discriminatory purpose, to avoid no-urban, no Spanish dictates (see our post here for details). As we wrote recently in connection with fines issued to a couple of stations for multiple day-to-day violations of the FCC rules, the attention to these details now will avoid major financial headaches for broadcasters later, and potentially long-term issues at license renewal time as well.

Posted on October 24, 2010 by David Oxenford

Top Ten Legal Issues to Keep Broadcasters Awake At Night - Presentations to Connecticut and Kansas Broadcasters Associations

So what Washington issues should be keeping broadcasters up at night? At the Connecticut Broadcasters Association Annual Convention in Hartford on October 14, and the Kansas Association of Broadcasters Annual Convention in Wichita on October 18, I presented my Top 10 list of issues for broadcasters – dealing with issues both practical and policy-based. The PowerPoint presentation from Connecticut is available here, and that from Kansas is available here. At these sessions, we discussed a variety of legal issues of importance to the industry, including the need for broadcasters to consider the upcoming license renewal cycle. As we wrote a few weeks ago, that cycle begins with stations in Virginia, Maryland, DC and West Virginia in June 2011, and will continue across the country for the next few years, with radio stations in Kansas filing renewals in February 2013, and radio stations in Connecticut filing on December 1, 2013. Television stations in each state will have applications due a year later. To be sure that stations are prepared for the renewal, they should be checking their public inspection files to make sure that they are complete, and should be preparing quarterly programs-issues lists detailing the programming that they broadcast to serve the public interest. A copy of Davis Wright Tremaine’s most recent advisory on the Quarterly issues programs list is available here. The most recent Quarterly Programs Issues List should have, by October 10, have been placed in the public files of all stations around the country, covering issue-responsive programming that was broadcast in the last quarter. The DWT Advisory covering all of the other materials that should be in the public inspection file, and the retention period for that content, is availablehere.

We also discussed compliance with the FCC’s EEO rules, and how important such compliance is – and how each station’s EEO performance will be evaluated at license renewal time or if the station is randomly audited in the FCC’s EEO random audit process. We wrote about some of the complaints of certain public interest organizations about how they felt that the FCC had not been aggressive enough in EEO enforcement, here. With the scrutiny given to this issue, broadcasters should be observing their obligations carefully. DWT’s advisory on EEO compliance is available here, and our most recent reminder on the annual public inspection file reports for broadcasters is available here. A PowerPoint presentation from a seminar that I just completed for the Washington and Oregon Broadcasters Associations will be posted on our blog shortly, which will highlight some of these EEO obligations.

Many other issues, from the performance royalty to spectrum battles, to the kinds of day-to-day enforcement issues that can lead to fines are also covered in the PowerPoints, and more information on many of these issues can be found in the pages of this blog. Look to the Topic headings to the right of this article, and click on the relevant to topic to see some of the recent issues that we have identified in connection with those matters.

At the Connecticut Broadcasters meeting, I also conducted a seminar on Digital Issues for Broadcasters. The PowerPoint for that seminar, along with links to other related material, can be found in our recent article on a similar presentation that I did for 11 state broadcast associations, available here.

Tags: Connecticut Broadcasters Association, FCC EEO enforcement, General FCC, Kansas Association of broadcasters, issues for broadcasters, license renewal, public inspection file, quarterly programs issues lists

Posted on August 24, 2010 by David Oxenford

FCC License Renewal Application Cycle Begins in Less Than A Year - What Stations Should Be Doing to Get Ready

Are you ready to file your next license renewal application? It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues). Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us - beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011. Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close. Television station renewal applications will be due on a state-by-state basis beginning one year later - starting with TVs in DC and the same three states in 2012. A schedule for the radio renewal filings is available here. With these deadlines almost upon us, what should stations be doing now to get ready?

In the last renewal cycle, the biggest source of problems dealt with public file issues. Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies. In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files. These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area. If that service is ever challenged, you will need the reports to demonstrate how your station's programming met the needs and interests of your city of license and the surrounding area. Check out our last advisory on the Quarterly Programs Issues Lists, here.

Mandatory EEO filings are another source of documentation that can cause issues for stations. Stations should have their EEO Annual Public File Reports in their public inspection file for every year of this renewal term, and should have their most recent Annual Report posted on their website (if they have a site). For television stations with 5 or more employees, and for radio employment units with more than 10 employees, you should have also filed a Form 397 Mid-Term EEO Report with the FCC at the mid-point of your license term (all but TV stations in the last few renewal windows should have already filed that report). Details of your EEO obligations (including the slides from a recent presentation summarizing the EEO rules), and links to various EEO advisories that our firm has published, are available here.

Recent FCC Form 323 ownership reports should also be in the public file. Our reminder on the ownership reports that all commercial stations should have filed at the beginning of July can be found here. Noncommercial stations need to remain alert to their mandatory biennial reports, which are due every two years, computed from the date on which your state's license renewal application should have been filed.

There are other issues that come up in connection with the broadcast public inspection file. For our Davis Wright Tremaine advisory on the Basics of the Public Inspection file for Commercial Broadcasters, setting out all of the documents that are required for inclusion in the public file, you can go here.

Now is the time for stations to review other compliance issues. RF radiation issues are considered at renewal time so, especially if there have been changes at your transmitter site since the last renewal, check to be sure that you are in compliance with all limits there.

Check your licenses to make sure that all of your operating facilities are authorized. Make sure that stations have licenses for all STLs, remote pick-ups and other auxiliary facilities, and that (especially if there has been a recent sale of your station) all such licenses are now listed in the current licensee's name. Make sure that the FCC has the correct mailing address for your station on file, so that any notices go to the correct place.

Also remember that, for the first time this year, the license renewal application is supposed to have a certification that stations are not discriminating in the sale of advertising time. We have written about this requirement before (see our posts here and here). This requirement is one on which the FCC has never provided much guidance. The Commission has said that station advertising contracts should have certifications that state that advertisers are not making their buying decisions for discriminatory purposes, an example of such a certification we provided here. But consult with your attorneys to make sure that you are ready for this new license renewal question.

This is a good time for stations to make sure that their operations are in good order in all respects. Correct issues that might exist, so that you don't need to scramble to do so when the license renewal is due. And make sure that your stations are serving their communities, and doing their best to address any criticisms that may be coming their way from their listeners. At renewal time, you want friends who will verify how well your station serves your community, not enemies who may be ready to complain to the FCC about your performance. Stations should obviously be doing this at all times but, with the renewal season soon to be upon us, be sure that these efforts are not put in the "to do" pile, but are instead action items for immediate attention. Your license renewal application will be due sooner than you think, no matter whether your station is in Virginia and filing next year, or in Pennsylvania where that four year delay can pass very quickly. Be ready.

Tags: EEO Compliance/Diversity, EEO mid term report, EEO public file report, FCC, FCC Form 397 Mid-Term EEO Report, Form 303, Form 323, General FCC, Public Interest Obligations/Localism, RF radiation, advertising discrimination, license renewal, ownership report, public inspection file, quarterly issues programs lists

Posted on March 28, 2010 by David Oxenford

Checklist for Commercial Broadcasters Public Inspection File - With License Renewals a Year Away, Make Sure that Your File is Complete

Incomplete public inspection files were the largest source of fines during the last license renewal cycle. We wrote last week about two noncommercial broadcasters whose renewal applications filed many years ago have just now led to consent decrees and voluntary contributions to the US treasury in lieu of fines. To help commercial broadcasters avoid these issues, we have prepared a Guide to the Basics of Public Inspection File Obligations for Commercial Radio and Television Broadcasters, discussing the rules that need to be followed with respect to the availability of the file to the public, its required contents, and the time period for the retention of documents kept in the file. The Guide also has links to some of our other advisories that deal in more detail with the obligations to keep specific types of documents in the file - including political broadcasting documents, quarterly issues programs lists, EEO reports and children's television reports. Read the guide, available here, review your operations and be prepared for the next renewal cycle.

Tags: FCC Fines, FCC document retention, General FCC, how long do broadcasters need to keep documents in public file, license renewal, public inspection file, radio law, television law, what documents need to be in a broadcasters public file

Posted on March 24, 2010 by David Oxenford

Fines For Public Inspection File Issues - Noncommercial Broadcasters Enter into Consent Decrees to Resolve Rule Violations

In two consent decrees released last week, the FCC's Enforcement Bureau agreed to significant "voluntary contributions" to the US Treasury to settle noncompliance issues reported in license renewal applications filed by noncommercial radio stations. Both stations had voluntarily reported public inspection file issues in their license renewals. One admitted to having no issues programs lists in its public file and having filed no biennial ownership reports for the license renewal period. The other admitted that it was missing several years worth of quarterly issues programs lists. In the first case, the FCC agreed to a $10,000 contribution in lieu of a fine (see the agreement here), in the other case a $1700 contribution (which was less than might normally be the case, as it was reduced by a financial hardship showing - see the order here and the agreement with the FCC here). These cases demonstrate the significance that the FCC places on public file issues - the biggest source of fines in the last license renewal cycle. With a new license renewal cycle beginning in June 2011, now is the time for all broadcasters - commercial and noncommercial - to make sure that they are ready for the beginning of this cycle by clearing up any outstanding regulatory issues.

The fines also once again demonstrate that the Commission no longer treats noncommercial broadcasters differently than commercial broadcasters - fining noncommercial stations for violations just as it does their commercial brethren (see a previous post on this subject, here). In these cases, the use of Consent Decrees also demonstrate the problems that issues arising at renewal time can cause. If a station's license renewal reports a problem, such as an incomplete public file, the application is pulled out of the routine processing pile for further scrutiny. Such scrutiny can often take a year, and sometimes several years, to resolve. While the renewal application is in this state of limbo, a sale of the station will not be approved, and sometimes other regulatory actions can be held up (in fact, in one of these cases, a transfer of control of the licensee company was delayed while this issue was being resolved). Thus, to avoid these lengthy delays, stations often decide to pursue the consent decree route to try to resolve the issue more quickly than would be the case if the application were just left with the FCC to run its course.

The Consent Decree route can speed the processing, but the process has its own costs. There is not only the cost of negotiating the agreement and making the voluntary contribution (which is usually about the same amount as a fine would be for the same offense), but the licensee typically must also agree to a compliance program to ensure that the violation does not occur again. Such a program often has the licensee making promises to routinely report to officers of the licensee and the station's outside counsel to make sure that the routine FCC obligations are being met. Come the next renewal time, not only does this confession invite scrutiny of the offense that originally got the station into trouble, but the promises made in the compliance plan can themselves be the subject of scrutiny, and perhaps even provide an independent basis for a fine should the plan not be followed.

And don't even think of not reporting in your license renewal application those violations in your public file that you may discover, as the failure to report a violation can cause its own problems - turning a mere rule violation into a misrepresentation issue (see our post here)

Obviously, each of these steps can have costs attached to them. So make sure that you don't have these problems to begin with - review your operations now to make sure that there are no significant problems to report when your renewal application is filed.

Tags: FCC Fines, FCC consent decree, Noncommercial Broadcasting, biennial ownership report, fines for noncommercial radio, fines reduced for financial hardship, license renewal, public inspection file, quarterly issues programs lists

Posted on August 7, 2009 by Brendan Holland

Broadcasters Beware: Failure to Timely Renew Earth Stations Can Draw Large Fines

The Commission today released yet another forfeiture for what has become an increasingly common oversight among broadcasters -- the failure to timely file a license renewal application for a satellite earth station. What made today's forfeiture unique, however, is the fact that the Commission proposed to double the amount of the forfeiture based on the size of the broadcast licensee and its presumed ability to pay such a fine. After balancing all the factors, the Commission ultimately ratcheted the fine down a bit, but in the end it assessed a $25,000 fine for the failure to timely file license renewal applications for two earth stations and for the continued operation of those facilities without proper authority. In light of today's decision, broadcasters should be sure to review and track the expiration dates for all FCC authorizations.

The FCC's decision in this case makes clear that in imposing a large fine in this case it is attempting to send a message that the Licensee will heed. Per the Commission's decision: "This $16,000 forfeiture amount [the baseline forfeiture] is subject to adjustment, however. In this regard, we consider the size of the violator and ability to pay a forfeiture, as well as its prior violation of the same rule sections before us today. To ensure that forfeiture liability is a deterrent, and not simply a cost of doing business, the Commission has determined that large or highly profitable companies such as [Licensee] , could expect the assessment of higher forfeitures for violations, and that prior violations of the same or other regulations would also be a factor contributing to upward adjustment of apparent liability. Given [Licensee's] size and its ability to pay a forfeiture, coupled with its previous violation, we conclude that an upward adjustment of the base forfeiture amount to $32,000 is appropriate." [Emphasis added.] In reaching its decision, the Commission noted that the Licensee in this case was a large broadcaster with "net yearly sales" of over $110 million.

This forfeiture should serve as a clear warning to broadcasters both big and small to review and track the expiration dates of any earth stations or other authorizations held by a broadcast station. Rarely (if ever) will the license term of an earth station authorization coincide with the renewal of the parent broadcast station, which means it is easy for the earth station to slip through the cracks.

The second lesson from today's decision is that the bigger you are, the harder you might fall. So larger broadcasters in particular are on notice that the FCC might increase a proposed fine to make sure that it gets your attention. And as we all know, larger does not necessarily mean more profitable. So just because a broadcaster is large, doesn't mean that it is any better positioned to absorb a large fine than a small broadcaster is to absorb a small fine. The adage about an ounce of prevention applies equally to both big and small.

That said, however, given the large number of licensees that seem to have missed the licensee renewal deadlines for earth stations in recent years, perhaps it would be worthwhile for the Commission to review its procedures for notifying licensees of the impending expiration of an earth station license. The length of earth station license terms, combined with the fact that the license terms are not in sync with the broadcast station renewal cycle has clearly resulted in numerous situations where licensees have missed the license renewal deadlines for their earth stations in recent years. While the Commission is obviously correct that it is incumbent upon licensees to be aware of the terms and expiration of their own licenses, ten years is a long license term, and, simply imposing larger and larger fines for an oversight that many broadcasters have tripped over may not be the solution. Perhaps better communication through renewal reminders, public notices, and the like could help licensees to avoid the problem entirely, which would ultimately save Commission resources and achieve the desired goal of ensuring that facilities are properly authorized.

Tags: FCC Fees, FCC Fines, General FCC, Television, earth station, fcc fine, fine, forfeiture, license renewal

Posted on May 14, 2009 by David Oxenford

Even Though Old Media May Be Dying - Let's Regulate Them While We Can - Broadcast License Renewals Every Three Years?

In a speech to the Free Press Summit, Acting FCC Chairman Michael Copps suggested that broadcast license renewals should no longer be a "postcard", but instead should be a real test of the broadcaster's service to the public interest - and should happen every three years, rather than on the eight year renewal cycle that is currently provided for by the law. While the Chairman acknowledged that many suggest that the old media are in troubled times and may well be supplanted by new forms of communications, "If old media is going to be with us a while still...we still need to get serious about defining broadcasters’ public interest obligations and reinvigorating our license renewal process." In other words, while broadcasters may be dying, we should regulate them while we can.

First, it should be pointed out that the broadcast license renewal is no longer a postcard, and really hasn't been for almost 20 years. The current renewal forms require certifications on many matters demonstrating a broadcaster's service to the public and its compliance with the rules, and additional documentation on EEO performance and other matters. TV broadcasters also have substantial renewal submissions on their compliance with their obligations under the Children's television rules. Issues of noncompliance with the rules resulted in many fines in the last renewal cycle, demonstrating that this is not a process where the FCC is without teeth. Yet most of these fines were for paperwork violations (e.g. not keeping detailed records of EEO outreach or quarterly issues programs lists demonstrating the public interest programming broadcast by a station), not for any substantive claims that station licensees were fundamentally unqualified and should forfeit their licenses. In fact, the Acting Chairman's speech recognizes that most broadcasters do a fine job serving their communities, yet he believes that more regulation is necessary to police those that don't. But is this the time to be imposing additional regulatory burdens on all of the industry, for the actions of a few. Will the overall public interest be served by such actions? .

As we wrote years ago when this proposal was proposal was previously floated by Commissioner Copps, the license renewal process was lengthened based on findings that the old process was cumbersome and unnecessary - often provoking litigation and delay, but only rarely uncovering any real evidence of serious problems with a licensee warranting Commission action. There simply were no benefits to the substantially increased costs of the 3 year license term. Moreover, the processing of the applications imposed a substantial burden on an already overworked FCC staff that took their attention off of the processing of the many other matters already before them.

The period was gradually extended - going to 5 years for TV and 7 years for radio, and reaching its current 8 year term as part of the Telecommunications Act of 1996. The Act specifies that the license renewal term shall be for "not more than 8 years," theoretically leaving the FCC with the flexibility to decide on some term less than 8 years. However, when the Commission decided in 1997 to extend the renewal term to the full 8 years, it did so relying on statements of Congressional intent that Congress had expected to lighten the regulatory burden on broadcasters by extending the term for the full period. Thus, were the FCC to try to shorten this period, it would have to explain why these findings were no longer relevant.

According to Broadcasting and Cable, Commissioner Copps later stated that he did not expect to rule on localism issues, or presumably raise this license renewal extension, during his interim chairmanship. And the NAB immediately objected to the proposal. Yet, as this issue has been raised by the Acting Chairman before, and as he will remain on the Commission even when the permanent Chair is seated, we can no doubt expect to hear this proposal raised yet again, perhaps in a formal setting, in the near future. Broadcasters should be prepared to address any such formal proposal.

Tags: 3 year license terms, 8 year license term, Chairman Copps, Public Interest Obligations/Localism, broadcast regulation, broadcaster programming obligations, broadcaster service to community, broadcasters service to public, license renewal, public service

Posted on April 30, 2009 by David Oxenford

FCC Gives No Special Consideration to Noncommercial Broadcasters Who Violate the Rules - Colleges Pay Attention to Your Radio Station!

In a decision fining a noncommercial radio station $7200 for failure to have several year's worth of quarterly issues programs lists in its public inspection file, the FCC specifically stated that it does not have a reduced scale for fines for noncommercial broadcasters. Instead, noncommercial station licensees, like the college that was involved in this case, have to justify a reduction in the amount of a fine based on financial hardship by providing a financial statement for the licensee itself - not just a showing of the budget for the radio station. Thus, a college or university station that is in violation of an FCC rule, and which is issued a Notice of Apparent Liability, cannot justify a reduction in the fine merely by saying that the station cannot afford the fine - they will have to show that the institution itself is unable to pay the fine that the FCC imposes.

This case is but one of a number of noncommercial stations that have received fines in recent days. Just yesterday, another noncommercial station owned by a college was fined $7000 for not having timely filed its license renewal application. The college's explanation that the regulatory failure was due to "poor administration" of the station didn't fly - as the FCC is clearly not going to reduce a fine because the licensee was not paying attention to the actions of its agents. These cases and others like it demonstrate that the FCC is going to hold noncommercial stations to the same level of scrutiny as commercial operators. The days when noncommercial broadcasters could count on being treated by the FCC with a lighter regulatory touch are over. And many college, universities and other nonprofits that had not paid attention to the actions of their broadcast stations need to pay attention now, as in these days of tightened budgets, nonprofit groups can hardly afford the costs of paying an unexpected FCC fine.

Tags: FCC Fines, FCC licensee responsibility, Noncommercial Broadcasting, college radio, college radio fines, educational radio, license renewal, noncommercial radio fines, nonprofit radio, nonprofit radio fines, public inspection file

Posted on October 15, 2008 by David Oxenford

FCC Rules Require Non-Discrimination Clauses in All Advertising Sales Contracts - Act Now to Avoid Trouble Later

In the FCC’s recent Report and Order on Diversity, released earlier this year, the Commission announced new requirements for all broadcast station’s advertising sales contracts. The new FCC rule requires that all advertising contracts contain clauses ensuring that there is no discrimination based on race or gender in the sale of advertising time. This new requirement, which took effect in July, not only requires broadcasters to have these non-discrimination clauses in their advertising sales contracts, but will also require that broadcasters certify as to the existence of such clauses in their next license renewal application. Thus, to be sure that you can make such certifications, you must revise your advertising contracts to include a nondiscrimination provision, such as the one set out below, if you have not done so already.

These new measures are intended to increase participation in the broadcast industry by businesses owned by women and minorities. The Commission was concerned that some advertising contracts include either explicit or implicit “no urban/no Spanish” dictates. Such contractual limitations, the Commission explained, may violate U.S. anti-discrimination laws by either presuming that certain minority groups cannot be persuaded to buy the advertiser’s product or service, or worse, intentionally minimizing the number African Americans or Hispanics patronizing advertisers’ businesses.

The Commission decided not to mandate specific language for use in advertising contracts. Nevertheless, the Commission plans to amend the license renewal application, Form 303-S, to require that broadcasters certify “that their contracts do not discriminate on the basis of race or gender and that such contracts contain nondiscrimination clauses.” The current Form 303-S (dated July 2008) does not include such a certification, but the new rule only took effect July 15. Updated renewal forms containing the required certification should be adopted in the near future, well before the start of the next license renewal cycle. Such a certification is likely to require that the broadcaster certify as to the existence of such clauses from this point forward. Thus, broadcasters who have not already added a nondiscrimination clause to their advertising contracts should begin to do so now.

The FCC refused to specify exactly what the certifications should say. We suggest language along the following lines:

This station does not discriminate in the sale of advertising time, and will accept no advertising which is placed with an intent to discriminate on the basis of race, gender or ethnicity. Advertiser hereby certifies that it is not buying broadcasting air time under this advertising sales contract for a discriminatory purpose, including but not limited to decisions not to place advertising on particular stations on the basis of race, gender, national origin, or ancestry.

The Commission has not made clear exactly how this requirement is to be implemented with respect to certain legitimate uses of advertising based on demographics. For instance, an advertiser who wants to place ads for a women’s clothing store, a medical practice that specializes in women’s health issues, or for other products specifically designed for woman will no doubt target their ads at stations with a high proportion of women in its audience. Similarly, if an advertiser wants to advertise a concert by a Spanish-language recording artist, they will more likely seek a station that reaches a population with a large Hispanic population. Presumably, this type of targeted advertising based on legitimate distinctions based on the inherent nature of a particular product is not prohibited, even though one could say that it is an advertising decision based on gender or ethnicity. Instead, what the FCC seems to be targeting is advertising where a general market advertiser – e.g. a car dealer or a grocery store – provides instructions that it does not want its advertising running on stations targeted toward minority audiences.

Stations should be careful not to accept general market ads that specifically exclude Spanish, urban or other stations based on race, ethnicity or gender. Stations should also instruct their staff not to either implicitly or explicitly encourage or accept advertising based on such criteria. As is the case with any other FCC certification, just making the certification is not enough - the station must act in accord with the language of the certification it has made. If a station were found to have accepted ads based on racial or gender criteria, yet it nevertheless made the certification, it could conceivably have not only discrimination issues before the FCC, but also misrepresentation issues to deal with. Thus, staff education will be an important part of compliance with this rule.

Stations should immediately take necessary steps to comply with the Commission’s new anti-discrimination requirements for advertising. The new rule has not received much attention since its release, but broadcasters should comply with it now to avoid potential problems upon renewing their license.

Tags: Advertising Issues, EEO Compliance/Diversity, FCC ad contract requirements, FCC certifications, advertising contract, broadcast advertising discrimination, license renewal, no urban no spanish, nondiscrimination clause, radio ads

Posted on April 17, 2008 by David Oxenford

FCC Form 355 - A Form Without a Reason?

The FCC Form 355 requiring "enhanced disclosure" by television stations was a frequent topic of discussion at this week's NAB Convention in Las Vegas. That form will require that television broadcasters report significant, detailed information about their programming, providing very detailed reports of the percentage of programming that they devote to news, public affairs, election programming, local programming, PSAs, independently produced programs and various other program categories, as well as specifics of each program that fits into these categories (see our detailed description of the requirements here). Obviously, all broadcasters were concerned about how they would deal with the expense and time necessary to complete the forms, and the potential for complaints about the programming that such reports will generate. At legal sessions by the American Bar Association Forum on Communications Law and the Federal Communications Bar Association, held in connection with the NAB Convention, it became very clear to me that the obligations imposed by these new rules are obligations adopted for absolutely no reason, as the Commission has not adopted any rules mandating specific amounts of the types of programming reported on the form. In fact, one of the Commissioner's legal assistants confirmed that, unless and until the FCC adopts such specific programming requirements, the Commission's staff will not need to spend any time processing these forms. Thus, if the form goes into effect, broadcasters will be forced to keep these records, and expend significant amounts of staff time and station resources necessary to complete the forms, for essentially no purpose.

Of course, public interest advocates will argue that the forms will allow the Commission to assess the station's operation in the public interest, and will allow the public to complain about failures of stations to serve local needs. But, as in a recent license renewal case we wrote about here, the Commission rejected a Petition to Deny against a station based on its alleged failure to do much local public affairs programming as, without specific quantitative program requirements, the Commission cannot punish a station for not doing specific amounts of particular programming. If the Commission adheres to this precedent, it will not be able to fine stations for the information that they put on the Form 355, but only for not filing it or not completing it accurately. Thus, unless the Commission adopts specific programming requirements, the form will be nothing more than a paperwork trap for the unwary or overburdened broadcaster. And, as is usually the case with such obligations, the burden will fall hardest on the small broadcaster who does not the staff and resources to devote to otherwise unnecessary paperwork.

We are certainly not advocating the adoption of such programming requirements. In fact, we believe that such standards would be constitutionally suspect and would end up forcing all stations into cookie-cutter images of each other - at a time when the plethora of media choices now available demands that each station adopt a targeted identity catering to the needs of a unique and specific audience. And in tailoring its service to specific audiences, a station cannot be constrained by specific program percentages, as each audience may have the same needs - some will not sit still for traditional news and public affairs programming, while others will demand it. Forcing all stations to provide the same program choices simply leaves some audiences unserved. While this may be most evident in radio, television will adapt too as there are more and more outlets for video programming. TV will have to seek out the niches at which it will direct its programming. Mandating a specific percentage of news, public affairs, election coverage, religious programming or anything else simply will not serve the public's interest in receiving wide and diverse programming choices. For the individual consumer, having the programming that he or she wants when they want it is more important than insuring that some percentage of that station's programming is made up of local news.

As one broadcaster observed to me, these rules may have made some sense when broadcasters were all mass market stations, providing "full service" programming to their communities. That was a time when there were few media outlets in each market, and to maximize audience, each station had to try to serve all elements of the community. Now, as broadcast stations compete against programming coming from cable, satellite, Internet, mobile and other platforms, there really are few if any full-service stations, particularly in large broadcast markets. Even broadcasters themselves, as they adapt to the multicast opportunities that are presented by digital transmission, will provide more competition in a marketplace, and hasten the need for focusing on the superserving the needs of particular audiences.

For now, the NAB is challenging in Court the implementation of the Form 355. How the Commission will justify its retreat from the deregulation of the 1980s when it admits that this form currently serves no regulatory purpose is hard to imagine. In the interim, comments on the potential for the adoption of specific quantitative programming obligations, as part of the Localism proceeding (see our summary here), are due on April 28. Broadcasters should file comments to make sure that the Commission understands the current competitive marketplace, and how their programming will be constrained if they were all forced to adhere to the same arbitrarily set programming obligations for various categories of various types of programming. It is a crucial proceeding that could determine the future of the broadcast industry - be sure to participate.

Tags: FCC Form 355, NAB appeal, Programming Regulations, Public Interest Obligations/Localism, Television, enhanced disclosure, license renewal, local news, local programming, localism, program obligations, public affairs, public interest

Posted on March 27, 2008 by David Oxenford

What a Difference A Renewal Makes - FCC Admonishes Two Broadcasters for EEO Violations, Fines Would Have Followed if Renewals Had Not Recently Been Granted

In two decisions released this week by the FCC, here and here, two large broadcast group owners were admonished for failures to comply with the FCC’s EEO rules. In both cases, failures to widely disseminate information about job openings in one market were discovered by the FCC in the course of random EEO audits that selected these stations for review. In both cases, the Commission determined that the violations were serious, and imposed reporting conditions (essentially subjecting the stations to an FCC audit of their EEO annual public file reports every year for the next 3 years). And in each case, the FCC would have fined the stations for their violations, but the Commission moved too slow, as in both cases, license renewals were granted between the time of the violations and the EEO audit. Under provisions of the Communications Act, the Commission cannot fine a station for action that occurred during a prior renewal term - so the grant of the renewals cut off the possibility of a fine in these cases.

These actions highlight the importance of complying with the Commission’s EEO rules, which we have summarized in our EEO Guide, here. In particular, in both cases, the station groups had not widely disseminated information about job openings, as required by the rules. Wide dissemination requires the use of recruitment sources designed to reach all groups within a community to allow their members to learn about the job openings at the station. The Commission's aim is to bring into the broadcast workforce employees representing diverse groups within a community rather than hiring all their employees from traditional broadcast sources. In these cases, the stations had used only corporate websites, on-air announcements, and word of mouth recruiting. No outside sources, or sources reasonably likely to reach the entire community, were used by the broadcasters, hence the admonition and the reporting conditions.

So, is a broadcaster never justified in relying on its own airwaves as its sole recruitment tool? In most cases, as not everyone in a community is likely to listen to one owner’s broadcast stations, it cannot reasonably be assumed that the use of the airwaves would reach the entire community. While the FCC, in the Order adopting the EEO rules, did say that the use of a major newspaper read throughout the community might be sufficient as a source to reach all groups within the community, most broadcasters face competition, rarely being in a situation where they have the overall market reach of the monopoly daily newspaper (even though most broadcasters might argue that it is far more likely that ads on their stations will be heard and remembered than it is that a classified ad somewhere in a newspaper will be read by a potential employment candidate – especially one who may not be actively looking for work, but who might be intrigued by the possibility of a broadcast career and consider pursuing an open broadcast position). Nevertheless, under the current EEO regulations, broadcasters must design their EEO programs in such a way so as to be theoretically targeting all groups within a community.

In addition, it is important to note that one of these decisions involved Entravision, a broadcaster specializing in Spanish-language programming. It is probably reasonable to assume that the broadcaster had an ethnically diverse workplace, attracting Hispanic-American employees. However, the new EEO rules are designed not to measure the race or ethnicity of the broadcast station’s workplace, but instead to measure its efforts to reach out to the entire community and all groups within that community (not just racial and ethnic minorities) to bring new people from these diverse groups into the broadcast workforce. Thus, stations that may have racially or ethnically diverse workforces should not consider themselves exempt from the requirements of the rules.

As the Commission has committed to randomly audit 5% of all broadcast stations annually, and to also audit cable television systems which are subject to similar EEO rules, these cases are significant in demonstrating that the Commission’s EEO rules must be strictly observed, or serious consequences may ensue. So assess your EEO program now to assure that it is in compliance with the Commission’s rules.

Tags: EEO Compliance/Diversity, EEO rule, FCC Fines, FCC employment rules, broadcast employment, diversity, equal employment, license renewal, public file, random audit, wide dissemination

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.
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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: Public Interest Obligations/Localism, ascertainment, license renewal, localism, manned main studio, media diversity, public affairs program, public interest, quantitative programming requirements

Posted on November 9, 2007 by David Oxenford

FCC Sets Unusual Public Forum to Assess License Renewal of New Jersey Television Station

In a very unusual, if not unprecedented case, the FCC announced a Public Forum on the license renewal application of WWOR-TV to assess the service provided by that station to the citizens of New Jersey. While the FCC has in the past held evidentiary hearings on license renewal applications, those hearings were trial-type, adversarial proceedings held on specific issues before administrative law judges - not amorphous public proceedings on general questions about the service provided by the station. This proceeding seems much more akin to the "localism" hearings that the FCC has been holding around the country (including the most recent held in Washington on Halloween), only in this case it is not conducted to come up with some general policy guidelines, but instead it is to assess whether a broadcast license worth hundreds of millions of dollars should be renewed. While the revocation of a license for failure to serve the public interest under the license renewal standards that have been in effect for the last 11 years is unprecedented, this process may be one that other stations could face were proposals of certain Congressional and FCC proponents of license renewal reform to get their way.

As we wrote here and here, some have suggested that the FCC's license renewal process should be fundamentally reformed. There have been suggestions that license renewal, which once occurred every three years for broadcast stations but now comes up but once every eight years, should return to that shorter cycle. And some have suggested that the license renewal process should have more "teeth" to assess a broadcaster's performance (see, for instance, the statement of Commissioner Copps at the FCC Localism hearing in Portland, Maine in June). These teeth have been suggested to include everything from specific quantitative showings of public interest programming by the broadcaster, to local public hearings to assess the level of that service for some or all broadcast stations. How the FCC would have the resources to conduct hearings for any meaningful number of broadcast stations is unclear - but the suggestion has been made by various proponents of license renewal reform.

The examination of WWOR-TV's service to the residents of New Jersey may reflect the station's unique history. Once licensed to New York City and part of the RKO broadcast group which had all of its FCC licenses challenged because of issues of candor stemming from some corporate wrongdoing engaged in by its parent company. While all of the company's other licenses ended up in other hands as a result of the renewal challenges, the WWOR license was saved by an act of Congress, agreeing to renew the license of any VHF television station that would move to a state that currently had no commercial VHF television service. As New Jersey had no VHF station, WWOR's move to New Jersey saved its license.

Now, however, the station's renewal has been challenged on various grounds, and the FCC will hold this unique hearing. Will this be but the first of such hearings? This is an issue for broadcasters to watch as the FCC weighs various proposals for ensuring localism through license renewal reform and other means.

Tags: FCC public forum, FCC public hearing, Programming Regulations, Public Interest Obligations/Localism, license renewal, localism, public service

Posted on October 28, 2007 by David Oxenford

Copps Calls for FCC Proceeding to Consider News Corporation's Acquisition of Wall Street Journal

In an unusual action, Commissioner Michael Copps last week publicly released a letter he wrote to Chairman Martin ( whose office is just down the hall from Copps' office on the Eighth Floor of the FCC's headquarters in Washington) urging the Chairman to initiate a proceeding to determine if the News Corporation's acquisition of the Wall Street Journal is in the public interest. Copps points to the fact that the company currently owns another daily newspaper published in New York (the New York Post) as well as two full power television stations (WWOR and WNYW) in the market. While recognizing that the FCC has previously ruled that national newspapers should not be counted for purposes of the FCC's newspaper- broadcast cross ownership limitations which currently bar local ownership of broadcast stations and daily newspapers in the same area. This exception for national papers was principally decided in connection with Gannett's USA Today, headquartered in the Washington DC area, where Gannett also owns a TV station. Copps argues that, despite the USA Today precedent, this situation nevertheless demands further review for two reasons: 1) the local concentration of two TV stations and two widely-read local newspapers and 2) the national concentration that will result in two of the five most widely read newspapers in the country being commonly owned with one of the four major television networks, as well as the owner of many other outlets of communication spread throughout the country.

One seemingly unique aspect of the Copps request is that he is asking that the FCC investigate the acquisition of a newspaper, over which the FCC has no direct jurisdiction. In fact, in the past, TV companies have purchased newspapers that they could not own consistent with the cross-ownership rules, with the understanding that they would divest one of these interests by the time that the next license renewal for the television station came up (or ask for a waiver of the rules at that time). This would be necessary as the FCC would have jurisdiction over the duopoly through the renewal application. In recent years, there have been companies which have bought newspapers in their television markets, taking the risk that, by the time the television station renewal was filed, the FCC's cross-ownership rules would have changed. And they are now left pursuing waivers in connection with their renewal applications. In this case, while the FCC would not have jurisdiction over the acquisition of the Journal, they would have jurisdiction over the pending TV renewal applications.

This letter also seems to be part of the recent concerted effort to stop the Chairman's announced intent to resolve the multiple ownership proceeding before the end of the year. And Commissioner Copps is not the only one complaining. Senators Dorgan and Lott held a press conference asking for more consideration of the issues, as has Senator and Presidential hopeful Barack Obama. Members of Congress have written the FCC asking for delay, and the Senate committee which oversees broadcasting last week held a hearing where regulatory restraint was also urged. Some observers have suggested that, with all of the opposition, the Chairman might not get all the issues resolved, but might settle for prompt resolution of the cross-interest issue. This latest short-distance correspondence might well be an attempt to derail even this modest reform.

Tags: FCC cross ownership, Multiple Ownership Rules, license renewal, media concentration, media consolidation, multiple ownership, newspaper cross ownership, newspaper television ownership, radio television ownership

Posted on September 24, 2007 by David Oxenford

One Sign That Broadcasters Are About to Become Political Footballs - Obama Suggests Shorter Broadcast License Terms and Less Consolidation

At last Thursday's Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama. According to press reports, the statement expressed the candidate's positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation. These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here. While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year. The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television - after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public. But those in Congress (and on the FCC) have the ability to do something about it. And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important. We've already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit's decision throwing out the FCC's fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines. Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.

But indecency and ownership are not the only broadcast issues on the Congressional agenda. Bills to regulate violence on television are pending (see our post here). Proposals have been made to regulate the advertising of unhealthy food to children, which have been stayed off temporarily by a government commission to study the issue and suggest voluntary guidelines, but at least one Presidential candidate has suggested (as we wrote here) that legislation is an option if the voluntary reforms don't go far enough and move fast enough. And LPFM, about which we wrote here, also may rise on the Congressional agenda.

The FCC may itself feel the heat to do something (almost anything) in the election year, and in the last days of the Presidential term and perhaps the last days of the terms of some of the sitting Commissioners (as there is usually substantial FCC turnover after an election, no matter which party wins). Many FCC issues, from rumored new rules on payola and sponsorship identification, to old issues long waiting for resolution, like the taping of broadcast programs and the extension of broadcast EEO rules to part-time employees and the return of Form 395 all await action. So, in the crazy days before the election, watch carefully to see what surprises your government has in store.

Tags: Advertising Issues, Children's Programming and Advertising, FCC EEO regulation, Indecency, LPFM, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, barack obama, broadcast consolidation, broadcast ownership, junk food advertising, license renewal, media consolidation, multiple ownership, public service, unhealthy food ads, violent television

Posted on July 27, 2007 by David Oxenford

Big Fines for Public File Violation that Escalated

The FCC released an order today, fining a broadcaster $20,000 for misrepresentations made in its license renewal application about the completeness of its public inspection file. The fine issued in this case was not a fine for the fact that the file was incomplete (two stations in the cluster had each already been fined $4000 for the actual public file violations), but instead the fine was issued because the licensee had certified in its renewal application that the public file had been complete and accurate at all points during the course of the license term. This case highlights both the need to keep an accurate public inspection file, and the need to carefully consider all certifications made in FCC applications. Incorrect certifications can lead to fines and potentially even more severe sanctions if the FCC finds an intentional misrepresentation or lack of candor - the potential loss of a license. Admitting a minor paperwork transgression like an incomplete public file will result in a fine - an inaccurate certification which appears to try to hide a problem can lead to far more severe consequences.

In this case, the FCC found that the licensee had not maintained Quarterly Issues Programs lists. The licensee claimed that its obligations had been met through a listing of public service announcements that the stations had put in their files. The FCC rejected that argument, citing the requirement in its rules requiring that Quarterly Issues Programs lists contain "a narrative description of what issues were given substantial treatment" by the licensee as well as the programs that treated each issue. In addition, the time and date of broadcast of each program, as well as its title and duration, is to be provided. A simple list of PSAs does not meet these requirements - as it does not list the issues addressed, much less provide the detailed program information required by the rule. For a summary of the Quarterly Issues Programs list obligations, and a model form to be used to meet the obligations, see our most recent memo on the subject, here. Remember, the Quarterly Issues Programs Lists are a broadcast station's only official record of how they have served the public interest needs of its community, so be sure that adequate attention is paid to the completion of these forms.

Perhaps more troubling in this case was the fact that the licensee, despite having twice been fined for public file violations during the course of the license term (and having paid the fines, essentially admitting the violations), nevertheless went ahead and certified that the public file had been complete at all times during the course of the renewal term. While the licensee tried to justify its answer based on the belief that the PSAs covered the requirement, the fact that it had already paid fines on this issue seems to point to the fact that the licensee was simply sloppy in filing out the license renewal, not paying attention to the certifications in the renewal and their actual meaning.

Similar inaccurate public inspection file certifications have previously caused broadcasters to be fined and, in the case of one California noncommercial station, the designation for hearing of a license renewal application to determine if the station's license should be revoked. Once again, it is important to emphasize that the underlying misconduct, if admitted by the licensee, would have at most cost the licensee a fine of a few thousand dollars (and, in this case, as fines were already paid, quite possibly nothing more). But the inaccurate certification, in and of itself, is one of the most serious offenses in the FCC's jurisdiction. On any FCC application, it is much better to admit a violation and take whatever penalty may follow than to try to hide or obscure the violation.

This case serves as a warning to all broadcasters - honestly is the best policy, and care in completing FCC forms to avoid any appearance of dishonestly is essential.

Tags: FCC Fines, FCC certifications, FCC lack of candor, FCC misrepresentations, Public Interest Obligations/Localism, Quarterly Issues Programs List, broadcast community service, broadcaster files, license renewal, public inspection file, public interest

Posted on July 25, 2007 by David Oxenford

Detailed License Renewal Requirements to Return?

In the broadcast world, if you stick around long enough, what was once big and then faded away will no doubt come around once again. Whether its the resurrection of prime time games shows that faded in the 50s to become big again today, or the regulatory landscape - it all comes around again. In comments made to an oversight hearing of the US House of Representatives yesterday, Chairman Martin stated that there is an item circulating through the FCC proposing to require that broadcasters file in their license renewal applications more detailed information about the types of public interest programming they provide. Until the mid-1980s, broadcasters had to specify the percentage of their programming that was comprised of news, public affairs and "other" public interest programming, as well as the number of public service announcements that the station broadcast. These specific requirements disappeared in the "deregulation" of the 1980s, but from the statements made yesterday, they may now be making a return if Chairman Martin and the Democratic Commissioners can agree on a set of rules to be imposed on broadcasters.

We've written about various proposals to require specific, quantifiable public interest obligations of broadcasters in the context of the recent digital radio order. We also wrote about the long-outstanding proceeding to quantify public interest obligations of television broadcasters that was mentioned in a recent decision denying a license renewal challenge (and implying that a decision was coming soon). Whether the Chairman's mention at yesterday's hearing of the upcoming "item" was a reference to these two proceedings, or to some entirely new effort to re-regulate broadcasters, remains to be seen. But the "post-card" renewal that was adopted in the 1980s, which has continued to grow in size and complexity over the intervening years, may well grow significantly in the near future.

And that may not be all - the frequency of the renewal is also in question. Commissioner Copps has been calling for a return to a three year renewal cycle (see our post about his proposals, here), rather than the eight year cycle that currently exists. That call was repeated at yesterday's hearing. So watch these developments carefully - and see what develops in this coming election year, when political points are often scored by cracking down on perceived problems, whether or not they exist.

Tags: FCC regulations, General FCC, Programming Regulations, Public Interest Obligations/Localism, license renewal, post card renewals, public interest, public service announcements

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.

Tags: Digital Radio, Digital Television, Digital television obligations, FCC programming rules, FCC public interest, Public Interest Obligations/Localism, broadcaster public interest rules, digital radio rules, digital television rules, election programming, license renewal, public interest obligations, public service programming, television programming obligations, television programming rules

Posted on June 3, 2007 by David Oxenford

You Can Force A Broadcaster to Program, But You Can't Make People Watch: Proposals for More License Renewal Obligations

Yesterday’s New York Times featured an article on its Opinion/Editorial page written by FCC Commissioner Michael Copps, suggesting that enforcement of the public interest obligations of broadcaster become more stringent. Commissioner Copps suggested that broadcasters needed to have their responsiveness to the needs of their community scrutinized more closely, and more often. Among other actions, the Commissioner suggested that license renewal period for broadcasters be shortened from the current eight year term, to once every three years – as well as a host of more stringent and specific programming obligations. Coming on the heels of the FCC’s proposal in the Further Notice of Proposed Rulemaking on Digital Radio (see our summary, here) to explore the local service of broadcasters through a checklist public file report quantifying their public interest service, as well as mandating more local program origination and a greater local presence for stations, local service seems to have emerged as a major issue of concern that may be played out in FCC proceedings in this year leading up to the 2008 Presidential election.

The Copps proposal to shorten license renewal terms back to the three years, and to stiffen the renewal process, asks that the FCC return to a system that required broadcasters to spend significant sums of money on administrative matters that could have better gone to broadcast operations. And the sums that used to be spent on license renewal applications had minimal real impact on the public interest. While from time to time, broadcasters did run into scrutiny at renewal time, the vast majority of broadcasters’ applications were reviewed in a perfunctory manner and renewed – just as they are today. And with the Commission’s depleted resources that are already stretched thin, it seems unlikely that its staff would be able to provide much greater scrutiny to renewal applications that are filed more than twice as often as they are currently – more than doubling the workload of the already overburdened Commission staff.

While some renewal applications did receive more scrutiny during the 1980s, the Commissioner forgets the abuses that the process permitted. The old license renewal process allowed the filing of applications by third parties which would propose that the third party would be able to better serve the public interest than the incumbent licensee who was filing for license renewal. In other words, a third party's paper promises were weighed against a licensee's past service to the public. This often led to decade-long litigation battles for the renewal of station licenses in major markets around the country. This process spurred the growth of a cottage industry of companies that would submit competing applications against license renewals, often settling at the end of the day for a private pay-off to walk away from their challenges and dismiss their applications. While virtually none of these challenges were successful absent some significant other wrongdoing by a licensee, the process was extremely costly for licensees and it added an element of uncertainty to the renewal process which served to restrict financing available to the broadcast industry. Who wanted to loan to an industry where the principal asset was subject to being revoked every three years? While Commissioner Copps seems to suggest that it would be no big deal if more broadcasters lost their licenses for not adequately serving the public interest, in fact it would make it even harder for new entrants to the broadcast industry to obtain the financing necessary to enter the business.

Some of the specifics of the public interest obligations suggested in the editorial also seem to ignore the realities of today’s entertainment marketplace. For instance, the Commissioner suggests that broadcasters should be obligated to cover much of the party Presidential nominating conventions – even though these events have in recent years become little more than several days worth of commercials for the parties involved with little real drama, debate or presentation of much more than political platitudes. This suggestion seems to stem from the Commission’s concern 8 years ago when the Fox network covered a baseball playoff game instead of a Presidential debate. To me, when you have 3 other broadcast networks and numerous cable channels covering the debate, isn’t the public interest better served by providing diversity of programming? Unless we are prepared to mandate that every citizen watch Presidential debates or party conventions, mandating that all stations cover any particular event accomplishes nothing, as airing anything on every station can’t guarantee that everyone will watch. By lessening choice, you probably also contribute to a decrease in the ability of television stations to provide important information to the public, as you encourage those who don’t want to watch the event for which you mandate coverage to seek out other media, lessening television in the long run.

In fact, in today’s Washington Post, there is a story on how the audience for television news in decreasing for many reasons, including the other available media choices. In fact, as these other media choices increase, broadcast stations will, of necessity have to provide more local programming, as that is where they will differentiate themselves from the national programming that comes in from cable, satellite, Internet and other digital providers. It should be incumbent of the FCC to allow these stations to find their own way in this new media landscape, rather than having the government mandate what programming people will see on their televisions or hear on their radio. The government may be able to force certain programming to be available, but they can’t make people view it. Until the government can make people watch “what’s good for them,” and make decisions as to exactly what that is, they should regulate with a very light hand.

Tags: FCC local news rules, Programming Regulations, Public Interest Obligations/Localism, broadcast programming obligations, broadcast programming rules, broadcast public interest, broadcast renewal, license renewal, local programming, public interest standard

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