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

Just a reminder that by October 1, Television stations must once again make their triennial carriage elections.  By that date, TV stations must notify the local cable systems and satellite carriers in their market in writing as to whether the station intends to be carried pursuant to must-carry or a retransmission consent agreement for the next three-year term, which runs from Jan. 1, 2012 through Dec. 31, 2014.  Accordingly, before Oct.1, stations must send a written election notice to the cable systems and satellite providers in their market via certified mail, return receipt requested.  The election letter should indicate the station's call letters, channel, community of license, DMA assignment, and contact information, in addition to answering the basic question of whether the station would like to elect carriage pursuant to must-carry or else negotiate a retransmission consent agreement.  In addition, those stations electing carriage pursuant to must-carry should also indicate the channel on which they wish to be carried (i.e., the over the air channel, the cable channel on which it has been carried historically, or some other mutually agreeable channel).  And be sure to keep copies of the election letters sent out.  Copies of all the election letters must be maintained in the station’s public inspection files. 

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The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television Channel 6 (and possibly Channel 5) for FM use after the completion of the television digital transition, to allow FM licensees who multicast to sell one of their multicast channels independently of the main channel, to allow certain AM stations with expanded band channels to avoid turning in one of their channels at the end of the 5 year transition period if the licensee is a designated entity (or sells one of its channels to a designated entity), and to provide Class A television stations with must-carry status.  The rulemaking proceeding will also look at whether the current definition of a designated entity (focusing on the fact that it is a small business as opposed to any review of the race or gender of its owners) is the one that the FCC should continue to use.  Thus, this is an important proceeding in which many broadcasters should be interested, and now you have more time to prepare comments on the issues that are raised.

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In recent weeks, Low Power Television stations have been the center of attention in Washington in connection with the Digital television transition.  While all full-power television stations are set to convert to digital operations less than a year from now, ceasing analog operations at the end of the day on February 17, 2009, there is no specific deadline for LPTV stations to convert to digital.  As the NTIA rolls out its coupon program for the purchase of converter boxes that will take digital signals of over-the-air television stations and convert them to analog for those who do not have digital television receivers (see our summary here), LPTV advocates noted that many converters do not pass through analog signals.  Thus, once a television is hooked up to a converter box, that television will not be able to pick up stations broadcasting in analog - so many unconverted LPTV stations after the conversion date will be denied access to television receivers.

Suggestions have been made that the converter boxes be reconfigured to pass through analog - unlikely as many of the boxes have already been manufactured and are on their way to stores (note that some converters do pass through analog signals, but a consumer needs to look for those boxes).  LPTV advocates have also asked for some form of cable must-carry during the transition process - a proposal sure to be opposed by cable system operators. 

The deadline for LPTV conversion is also in question.  A number of proposals have been made to allow these stations to keep operating in analog through 2012, as Federal funds to assist them in the digital conversion may be available, but not until 2010.  Of course, by then most viewers will have been watching digital television for years, so many LPTV stations may have made the conversion voluntarily well before that date to stay in tune with the viewers.

The final issue that we'll be seeing more of is the classification of more LPTV stations as Class A TV stations.  LPTV stations are generally secondary stations, which can be knocked off the air when a new full-power station starts broadcasting or when one improves its facilities in such a way so as to create interference to the LPTV.  A Class A station is not secondary, but instead must be protected by new stations or the increases in power of full-power stations.  Class A stations were created in a one-time window years ago, by demonstrating that they originated local programming and otherwise observed all of the rules followed by full-power television stations.  The Commission has discussed the possibility of allowing more stations to qualify as Class A stations, which will become more important as the freeze on modifications to full-power stations and on requests for the allotment of new full-power TV channels expires later this year once the final details of the digital transition have been set. 

Watch for all of these issues to be addressed in the near future, as the final digital transition details are set.

 

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The FCC today released its agenda for its September open meeting, to be held on September 11.  As might be expected, the Commission is to consider a number of matters dealing with public safety and homeland security issues for communications companies.   However, the Commission will also be considering a number of items dealing with cable television.  This includes the proceeding on the obligations of cable systems to carry broadcast television stations after the digital transition.  Also to be considered are a proceeding involving the possible extension of the rules restricting cable systems with interests in programming networks from having exclusive rights to that programming, and another proceeding addressing issues left over from the Commission's order adopting rules restricting the ability of local franchising authorities to delay the franchise applications of competitive cable systems (i.e. those that will compete in a franchise area with the existing system).  Comments in each of these proceeding were only received by the FCC in the last few months - so the Commission being ready to act on these matters this quickly is unusual.

Our firm has published memos on each of these issues.  The memo on the post-transition obligation of cable systems to carry television stations can be found here.  A summary of the proceeding on the rights to exclusive cable programming can be found here.  The advisory dealing with the Commission decision on local franchising authorities and their processing of applications for competitive franchises can be found here.  More on these issues after next week's meeting.

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