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On Friday, the US Court of Appeals for the DC Circuit followed the FCC's lead in denying the NAB's request for stay of the requirement for TV stations to post their public inspection files online.  Accordingly, that rule goes into effect on Thursday, August 2, 2012.

Effective that date, TV stations should post all new public file documents online in the FCC database created for this purpose.  Stations will have six months in which to post pre-existing public file documents into that database. The online posting requirement applies to TV stations only...not to radio stations or cable systems.

Posting of the political public file will not be required until July 1, 2014, except for the top four network affiliated stations (ABC, NBC, CBS, Fox) in the top 50 markets.  No station will be required to post political file documents created prior to August 2, 2012.

To facilitate the process, the FCC is holding online/teleconference seminars on Monday, July 30th and Tuesday, July 31st.  The Monday seminar will be held from 9-11 AM EDT while the Tuesday seminar will be held from 4-6 pm EDT.  Details of how to join the online seminars are available at the FCC website here.

 

 

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The FCC has once again proposed a $10,000 fine against a college radio station missing quarterly issues/program lists in the public inpsection file.  This time, the culprit is Rollins College, a small liberal arts college in Florida with 1700 students. 

We know that $10,000 is the "base forfeiture" for failure to maintain a complete public inspection file, and this is not the first time the FCC has proposed this fine for a college radio station.  But we have questioned before whether a $10,000 fine is appropriate for this type of violation and the amount seems even more egregious when it is levied against a small noncommercial educational college radio station.  It is the same fine that would be levied against a major commercial television network station located in New York City for the same violation.

Yes, rules are rules and they should be followed by all FCC licensed broadcast stations.  But as Dave Seyler notes in a thoughtful piece written for Radio Business Report, it may not be in the best interests of the federal government to "siphon money out of our educational system."  In this case, as in other similar cases, the college received no warning following an FCC inspection...just the fine. 

As we have also previously noted, very few citizens go to radio stations looking to inspect quarterly issues/programs lists.  Do we really need a small college radio station to document its coverage of community issues the same way a commercial station would?  Would the FCC really consider stripping a small college of its noncommercial license for this type of violation, or is it just another way for the FCC to earn revenues?  It sure seems a lot like the latter. 

We know the FCC is stretched thin in terms of personnel and resources, and they do the best they can with the resources available. We also know that stations unable to pay FCC fines can present evidence of inability to pay to reduce or cancel proposed fines.  But there are legal fees to pay for doing that as well.  Accordingly, it does not seem unrealistic to suggest that some rule violations may merit a warning prior to a fine or that noncommercial educational radio stations be treated with a bit more leniency going forward.

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The FCC has announced that the obligation for television broadcast stations to post their public inspection files online will become effective August 2, 2012, absent a stay requested by the National Association of Broadcasters (NAB), which has appealed the rule to the US Court of Appeals for the DC Circuit.

Absent a stay, the rule requires full power and Class A television stations to post any NEW public file documents online at an FCC-hosted website as of August 2nd.  Those broadcasters will have six months or until February 2, 2013 to post PRE-EXISTING public file documents online. 

The political public file, which is the subject of the NAB appeal, will be treated a bit differently.  NEW political public file documents must be posted effective August 2 by only the top four network affiliated stations (ABC, CBS, NBC and Fox) in the top 50 markets. There is no requirement to post pre-existing political file documents online.

All other TV stations (i.e. non-network affiliated stations in the top 50 markets and ALL TV stations outside of the top 50 markets), do not have to post political public file documents online until July 1, 2014.

While it remains to be seen whether the NAB's request for a stay of these requirements will be granted, the FCC plans to schedule user testing and educational webinars in the near future to ensure that users know how to upload documents to the FCC's website intended for this purpose, and perhaps to ensure that the website can handle the anticipated traffic. 

While TV broadcasters should begin preparing for this requirement, it would be wise to stay tuned for further developments.

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The FCC has issued a flurry of fines against broadcast stations in the past week or two.  While a number of these fines were for the operation of unlicensed pirate radio stations, several of the fines were for public inspection file violations, stations broadcasting with excessive power or failing to reduce power at nighttime, or for other technical violations.  Agents from the Commission's field offices have been busy visiting stations, and licensees are urged to heed these recent forfeiture actions and review their own operations to ensure compliance with the Commission's rules, starting with the main studio rules and public inspection file requirements, about which we've written often in the past.  (See here, here, and here, for example.)

While the main studio and public inspection file requirements seem basic, the failure to properly follow these rules can be quite costly.  Today's FCC releases carries news of two such fines, one for $24,000 and one for $25,000.  In the first case involving two AM stations, the Commission fined the licensee $12,000 per station for failing to maintain a local public inspection file.  A copy of the decision is available here.  The FCC increased the forfeiture from the base fine of $10,000 based on its finding of violations at other stations operated by the licensee, which in the FCC's view may indicate a "systemic compliance issue".  In the second case, available here, the Commission fined two other AM stations operated by the same licensee a total of $25,000 for public inspection file violations, failure to operate consistent with the terms of the station's license, and failure to make required annual measurements. 

Of particular note, one of the AM stations had failed to conduct the required annual equipment performance measurements, and had failed to switch from its authorized Daytime pattern to its authorized Nighttime directional pattern during the month of April.  Section 73.1590(a)(6) of the Commission's rules requires that AM stations make annual equipment performance measurements, and that the details of those measurements be kept on file at the transmitter or remote control point for two years and be made available to the FCC upon request.  These measurements ensure that the station and transmitter are operating properly and are not causing any spurious or harmonic emissions, and must be conducted every year with no more than 14 months between measurements. In the case issued today, the station had no record of the measurements and had apparently not conducted the annual equipment performance measurements. 

These fines should be a clear warning to broadcast stations -- particularly AM stations -- to review their operations and ensure that they are in compliance with the Commission's rules and their authorized parameters.  And AM stations should make sure to make their annual equipment performance measurements and retain the proper documentation in their files. 

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The FCC released a Notice of Apparent Liability for Forfeiture today, proposing a $10,000 fine against a public TV station in Los Angeles for requiring an appointment to view the station's public inspection file. This case shows how seriously the FCC takes the requirement of open and unfettered access to a broadcast station's public file.  An FCC agent visited the station's main studio twice without identifying himself as an FCC employee.  Both times, the station's security guard refused to let him see the station's public inspection file or speak with the station manager without an appointment.

On the third visit, the FCC agent identified himself as such and was allowed to view the station's public inspection file "after a thorough examination of the agent's badge and several phone calls to [station] personnel." 

The public inspection file was found to be complete. However, the station was fined $10,000 for "willfully and repeatedly" failing to make the public inspection file available.  The FCC stressed that "stations cannot require members of the public to make appointments to access a station's public inspection file."

Note that the FCC had no issues with the contents or completeness of the public inspection file.  The only issue was access to the public file.  Although the station may appeal this fine, this should be a lesson to all stations to make the public inspection file to all members of the public during regular business hours....no appointments required.

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Many broadcasters, both television and radio, have been running the NAB spots on the Future of Television.  Those spots contain a description of the service available from local television stations and the new technologies that over-the-air television are in the process of deploying, and end with the suggestion that the Future of Broadcast Television lies in "technology not regulation from Washington DC."  Obviously, these ads are geared to address some of the many legislative and administrative issues facing TV broadcasters - including the proposals to take back some of the TV spectrum for wireless broadband uses.  Given that these spots could be arguably be seen as addressing Federal issues, to be safe, they should be identified as issue ads in stations' public inspection files, and appropriate information about those spots should be placed in the files.

The NAB, in announcing the availability of these spots, suggested this same precaution.  We've written before about issue ads, and the need to place notations in the public file about these ads. For instance, when stations ran ads on the broadcast performance royalty, we suggested that same treatment (and proponents of the royalty complained that broadcasters might not be making such notations).  What needs to go in the public file?  As the issues are Federal ones (as opposed to state and local issues that have lesser disclosure obligations), the requirements are similar to those that apply to political candidates. 

Specifically, when a station receives any request for time to address any issue dealing with a Federal matter (one to be considered by Congress, the President or any US government agency), the public file entry should include:

• If the request to purchase time is accepted or rejected
• If the ads are accepted, the dates on which the ad is run
• The rates charged by the station (or in the case of the NAB spots, that there was no charge but the ads themselves were furnished at no charge)
• Class of time purchased
• The issue to which the ad refers
• The name of the purchaser of the advertising time including:
  • The name, address and phone number of a contact person
  • A list of the chief executive officers or members of the executive committee or board of directors of the sponsoring organization.

Remember - issue ads don't implicate equal time or lowest unit rates - so taking these ads from the NAB should not be an issue for the station in terms of triggering any obligations for spots taking a contrary view.  But note the broadcast of these issue ads in your public file just to avoid any issues about whether "issue ad" obligations were met.

 

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Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC's Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they've heard that excuse many time.  If the fence is open when they arrive, expect a fine.

EAS is another area where many stations have had issues.  In this case, it appeared that the station operators were unfamiliar with the EAS system and how it worked, or why it hadn't received the required EAS alerts.  I've heard from many engineers who work with the Alternate Broadcast Inspection Program ("ABIP") that this is a frequent problem at stations around the country.  ABIP is a program that many state broadcast associations run, where they hire private inspectors to visit stations to assess their FCC compliance.  If stations pass the ABIP program, they are exempt from a random FCC technical inspection for three years (though the FCC can still inspect a station which has passed the ABIP inspection where there are complaints or violations that are a threat to safety).  These inspections can identify problems early, so that you can avoid fines later.  All stations should consider such an inspection to avoid issues such as a non-functioning EAS receiver.

An ABIP inspection would also discover a problem that one of these stations had - no public file. Obviously, all full-power stations are supposed to have public inspection files.  See our memo on the contents of the file for commercial stations.  And all employees who could possibly be called on to greet an FCC inspector who arrives at a station should know where the file is kept.  No file, or employees who don't know about the file, expect a fine.

Careful planning now, and undergoing an ABIP inspection can avoid fines later.  In this case, a little prevention would have provided a cure from thousands of dollars of liabilities.  

[Additional thoughts - 10/28/10 - note that, in both of these cases, the FCC initially fined the stations much higher amounts, but reduced the fines to the levels reported above after the stations showed that they would be unable to pay the higher fines.  The initial fines were $25,000 - reduced to $5,500 - and $17,000 - reduced to $3,500.  These amount show just how much violations of the sort found here could cost a successful radio station.]

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In the last few weeks, I've been asked several times by broadcasters whether an ad should be considered an "issue ad."   Usually, the ad in question deals with some sort of faintly controversial issue, and the broadcaster seems torn about how to classify the ad.   In many ways, the answer is almost irrelevant as, other than some public file obligations, whether or not an ad is an issue ad has little practical significance.  Issue ads are not entitled to special rates - lowest unit rates are reserved for candidate ads.  They are not entitled to special placement in broadcast schedules.  As there is no Fairness Doctrine, there isn't even a requirement that you treat both sides of an issue in the same fashion (except perhaps, where a Fairness obligation may still arise if the issue being discussed is a candidate in an election, when the last remnant of Fairness, the Zapple Doctrine, has not officially been declared dead).  So why worry about whether or not something is an issue ad?

The principal reason is the public file. Commission rules require that the sponsor of an issue ad be identified in a broadcaster's public file, along with the sponsor's principal officers or directors.  This is required for any ad dealing with a controversial issue of public importance.  The ad does not need to deal with a political issue, or one to be considered by a government body.  Any controversial issue of public importance merits the public file treatment.  For ads dealing with a "federal issue", one to be considered by the US Congress, any Federal administrative agency or any other branch of the United States government, additional disclosures need to be made in the file (which we have listed before), setting out all the information that you would need to provide with respect to a candidate ad - including the price paid for the ad and the schedule on which the ad will run. 

It has been suggested to me that an issue ad needs to be identified so as to decide whether the ad needs to have a "paid for" or "sponsored by" tag at the end to identify its sponsor.  In fact, any ad where the sponsor of the ad is unclear - even a pure commercial ad needs to have a "paid for" or "sponsored  by tag."  For instance, a few years ago, a station was fined when a local chamber of commerce was buying time to promote all the businesses in its town, and the chamber was never identified in the ad - much less as the sponsor of that ad.  When the ad is for a product, and the maker of the product is that sponsor, the Commission considers the identification of the product to be sufficient sponsorship identification.  But where the actual sponsor is someone else, and it is not clear from the ad who the sponsor is, a broadcaster is required to identify that sponsor.

So, in considering whether a spot is an issue ad, why go through the trouble of worrying too much about it.  If it deals with something that looks controversial, err on the side of caution.  Consider it an issue ad, place notice in your public file, and go on with your business!

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On November 10, Davis Wright Tremaine's David Oxenford and Bobby Baker, the head of the FCC's Office of Political Broadcasting, conducted a webinar on the FCC's political broadcasting rules and policies.  The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states.  Topics discussed included reasonable access, equal opportunities, lowest unit charges, and political sponsorship identification and public file rules. 

Seminar participants were provided with Davis Wright Tremaine's Political Broadcasting Guide, available here.  The PowerPoint presentation used in the seminar is available here.

 

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We’re not even in what most would consider election season - except for the two states with off-year governor’s contests and those other states with various state and municipal elections. Yet political ads are running on broadcast stations across the country.  Republican groups have announced plans to run ads attacking certain Democratic Congressmen who are perceived as vulnerable, while certain Democratic interest groups have run ads about the positions of Republicans on the Obama stimulus package and the President’s proposed budget.   In addition to these ads targeting specific potential candidates, there are issue ads running across the country on various issues pending before Congress, or likely to be considered by Congress in the near term. These ads often have a tag line “write or call your Congressman and tell him to vote No” on whatever bill is being discussed. While these are not ads for political candidates that require lowest unit rates or specific equal opportunities, they do give rise to political file issues.  Stations need to remember to observe these requirements and put the required information into their public file to avoid FCC issues.

Under provisions of the Bipartisan Campaign Reform Act, when a station runs an ad addressing a “Federal issue”, the station must keep in its public file essentially all the same information about the ad that it would maintain for a candidate ad. The station must identify the spot and the schedule that its sponsor has purchased, the identify of the sponsor (name, address and list of principal executive officers or directors), the class of time purchased, and the price paid for the ads.  Federal issues are ones that deal with a Federal election or with any issue to be considered by Congress or any Federal government agency.

Even ads dealing with state or local issues (e.g. school bond issues, zoning disputes, state ballot initiatives) require some public file disclosures.  While stations do not need to provide information about the entire schedule and the price of spots purchased in connection with controversial issues of state or local importance, they do need to maintain in their public file a list of the sponsoring organization's chief executive officers, the members of its executive committee, or its directors.  Maintain those files – and stay out of potential FCC trouble.

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In two recent FCC decisions, one dealing with a commercial operator and that other with a noncommercial licensee, the Commission's staff addressed the issue of how large an FCC fine could be imposed on a broadcaster without that fine being subject to reduction because of the licensee's inability to pay.  In the first case, a commercial station was fined for violations of the EAS rules.  As we've written before, EAS seems to be the most common violation found at broadcast stations by FCC inspectors.  However, what is most notable about this decision is not the violation, but the Commission's discussion of the penalty for that violation.  As in many cases, the licensee argued that, as it had experienced several years of financial losses, the amount of its fine should be reduced as the payment of that fine would impose a financial burden on it.  The FCC rejected the argument, finding that as the fine was less than 2% of the licensee's gross revenues, it was not excessive.  The Commission stated that, while profits and losses may be important in determining whether a licensee can pay a fine, in most cases, if the fine is less than 2% of gross revenues, it will not be considered excessive even if the licensee has not been making a profit as it it not a significant overall expense.  Therefore, the Commission refused to reduce the fine because of financial hardship argument.

In the noncommercial case, the applicant claimed that a fine that it was issued for not having any quarterly programs issues lists in it public file should have been reduced because that fine would significantly deplete the station's budget that had been allocated to it by the School District with which it was associated.  However, the licensee only provided the FCC with information concerning the budget allotted to the radio station, and it did not provide any financial information about finances of the licensee school district.  Without that information, the Commission stated that it could not determine that the fine was excessive, so it did not reduce the fine on the basis of financial hardship.  Clearly, the Commission is not anxious to reduce a fine based on the licensees financial inability to pay, so a licensee looking for such a reduction must carefully document its request showing that the fine would impose a financial hardship.

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The Public and Broadcasting is a document first written by the FCC in the 1970s to tell the public about how the FCC regulates broadcast stations, and to tell the public how they can get involved in the regulatory process.  Broadcasters must maintain a copy of the manual in their public file, and make it available to members of the public who request it.  For years, the manual was grossly out of date, finally being updated a few years ago.  Today, the FCC issued a Public Notice announcing that they have once again updated The Public and Broadcasting, and that all stations need to place the new version in their public file.  The new version, with a new subtitle "How to Get the Most Service from Your Local Station" can be found here.  Stations should print that document, and place it in their public file.

The manual is updated, and sets out most of the programming and other operational rules that would be of interest to the public.  The manual seems to be objective - pointing out that most programming decisions are left to the broadcast licensee to avoid violating the Freedom of Speech rights of the broadcaster. 

 

The Commission, at the same time, announced that it was setting up contact representatives within the FCC to deal with questions from the public about how to deal with their local broadcasters - and how to get involved in the FCC's processes of regulating broadcasters.  Toll free numbers and email addresses of one contact representative to deal with radio matters, and another for TV, have been established.  Setting up these contacts seem to be part of the FCC's suspicion, reflected in their localism proceeding and in connection with many other recent FCC actions, that broadcasters are not adequately serving the public and that there is significant interest on the public's part to become active in the activities of broadcasters and their regulation by the Commission.  This suspicion also seems to be underlying the proposals for community advisory boards and manned main studios in a station's city of license, as reflected in the issues raised in the localism proceeding, where comments are due on Monday, April 28.

As the Commission is urging that the public monitor broadcasters and their adherence to the FCC's rules, broadcasters should start their compliance programs by updating the version of The Public and Broadcasting that is in their public file.

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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. 

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In the last few weeks, I've received several calls from broadcasters about on-air employees who have decided to run for local political office, and the equal time obligations that these decisions can create.  Initially, it is important to remember that equal opportunities apply to state and local candidates, as well as Federal candidates.  And the rules apply as soon as the candidate is legally qualified, even if the spot airs outside the "political windows" used for lowest unit rate purposes (45 days before a primary and 60 days before the general election).  For more information about how the rules apply, see our Political Broadcasting Guide.  In one very recent example of the application of these rules, a situation in Columbia, Missouri has been reported in local newspaper stories concerning a radio station morning show host who decided to run for the local elective hospital board.  To avoid having to give equal time to the host's political opponents, the station decided to take the employee off the air.  This was but one option open to the station, as set forth in the article, quoting the head of the Missouri Broadcasters Association, who accurately set out several other choices that the station could have taken. 

These choices for the station faced with an on-air host who runs for office include:

• Obtain waivers from the opponents of the station employee allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race.
• Allow the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents
• Provide equal time to the opposing candidates equal to the amount of time that the host's voice was heard on the air (if the opponents request it within 7 days of the host being on the air)
• Take the host off the air during the election

Other situations have also arisen concerning non-employees, running for office, who may work for another local station, for ad agencies, or for advertisers, but whose voice or picture appears on spots that run on a station.

The Commission's rules require equal opportunities where a candidate's "recognizable voice or image" appears on a broadcast station.  So, if an announcer with a recognizable voice decides to run for office, commercials featuring that voice become subject to the equal opportunities doctrine.  If that voice is on a PSA or station promotional announcement, for which no consideration is received by the station,opposing candidates who request it within 7 days, get equal time for free - and they can use it in connection with their campaign.  If the voice is on a paid commercial, the opposing candidate will probably have to pay for the equal time, though the opponent would get lowest unit rates during political window periods (even though the initial candidate's spot for a commercial advertiser was for full commercial rates).  As the equal time obligation to respond to paid spots is not for free, but instead only gives the opponent the right to buy time, stations might seem to have no reason to object to the initial candidate's voice on a spot.  However, that spot could force the station to sell time to candidates in a race in which the station might have otherwise have determined not to sell time.  Only Federal candidates have a right of reasonable access to broadcast stations.  Stations can choose whether or not to give state and local candidates access to their stations but, once they make the station available to one candidate, they must make it available to all candidate for the same office.  Thus, a station may have decided, for inventory control or other reasons, not to sell time to candidates for an office like hospital commissioner but, if one candidate's recognizable voice appears on an ad for a local car dealer, the other hospital commissioner candidates can request time within 7 days, and be entitled to purchase such time.

Stations also need to make notes in their public file of all "uses" of a station by a political candidate.  All of these appearances by on-air personnel who become candidates would be considered a use by a political candidate (even though they never mention their campaign), so they must be noted.  Clearly, there are many political broadcasting issues that must be considered when an employee runs for office - so stations should take care of observing those rules.

 

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The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations - requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules.  The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts - probably requiring dedicated employees just to gather the necessary information.  The degree of detail required is more substantial than that ever required of broadcasters - far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s - though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.

 Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered.  The Commission's decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters.  While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file's existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file).  With respect to the new Form 355 detailing the station's programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements.  Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355).  At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance.  Moreover, citizens will be encouraged by the Commission's actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster's programming.  Broadcasters in turn will feel pressured to air programming that will head off these complaints.  So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.

In the order, the FCC also minimizes the costs of complying with its new requirements.  The Commission suggests that the costs of digitizing a public inspection file would "involve a one-time cost of $15,000," and then could be maintained on a server for less than $20 a month.  Even if this cost is accurate (and as set forth below, there are reasons to doubt this), for a small market television station even that cost can be quite significant.  While the Commission suggests that small stations with minimal website operations can request a waiver of these requirements, it sets no standards by which such a waiver will be judged.  Similarly, the costs for the constant review of a station's programming necessary to complete the Form 355 will be substantial, as every day's programming will need to be timed, classified, and recorded so that the weekly averages that are reported on the Form can be computed, and as the report requires a complete catalog of all public interest programming.  Someone will have to make those computations, and prepare the required descriptions of the public interest programming, again not an insubstantial cost, especially for a small market station (and even for some larger market stations).  And for what purpose?  The Commission implies that it is for the greater good that will come from the information reported in the form - information which, as stated above, in the Commission's own eyes is currently of no regulatory significance.

These issues may well be played out in appeals or requests for reconsideration of the new rules.  But, unless and until the rules are changed, broadcasters will need to comply with the new requirements.  First, the provisions governing the on-line maintenance of the public file include the following (with our observations in parentheses):

• The Rules will become effective 60 days after the notice of their approval by the Office of Management and Budget (as required by the Paperwork Reduction Act - this is paperwork reduction?) is published in the Federal Register.
• Stations can either post the public file contents on their own website, or on the website of their State Broadcast Association (why would the Association volunteer to do that?).  Even if the State Association agrees to host the website, the station must have a link on its website to the report. 
• If a station has no website, it does not need to create one to comply with these rules (and it has no obligation to place the file on the State Association site).  But if it later develops a website, it must have the public file contents posted within 30 days.
• The contents of the political file do not need to be posted on the website
• Letters from the public do not need to be posted on the site - though emails from the public should be posted
• Documents that are posted on other sites, including the FCC site, need not also be stored on the station site, if a link to the documents is placed on the station's site
• The file must be accessible to the disabled, complying with Conformance Level A of the World Wide Web consortium's Web Content Accessibility (W3C/WAI) guidelines.  (Information may be found here).  This may preclude some files being stored solely in a PDF format (and will no doubt cause some consternation among those at stations, who we would expect to be most people, not familiar with these standards). 
• Twice each day, the station must publicize on the air, with its station identification, the availability of the file on the website.  At least one of those mentions must be between the hours of 6 PM and midnight.

The FCC Form 355 requires information including the following:

• A list of the station's programming streams (i.e. the analog channel and any digital multicast program streams) and "their main programming focus"
• A list of the parent company and affiliates of the company which owns the station (isn't this what Ownership Reports are for?)
• For each programming stream, the average number of weekly programming hours devoted to the following:
  • High Definition programming
  • National news
  • Local news produced by the station
  • Local news produced by some other entity (who must be identified)
  • Programming devoted to "local civic affairs," defined as programming designed to provide the public with information about local issues, including statements or interviews with local officials, discussions of local issues, and coverage of local legislative meetings.  This programming must be subtracted from the "news" programming reported above.
  • Coverage of local electoral affairs - basically coverage of local elections - which must also be subtracted from the news coverage numbers reported above
  • Independently produced programming, i.e programming not produced by a national network (presumably each local station will have to determine if a network has as little as a one-third interest in all programming that is being aired)
  • "Other" local programming - which is not defined but presumably would include sports, religious, and entertainment programming produced within the station's service area
  • Public service announcements
  • Paid public service announcements (a PSA-type announcement for which the station or any group that the station is affiliated with - presumably including state broadcast associations - receives something of value)
  • Closed captioned programming
• A list of each national news story that includes significant treatment of community issues, listing for each such program:
  • title, length and date and time of airing
  • whether it was aired on the primary channel of the station
  • whether it was locally produced
  • whether it previously aired on this station or any other station (how is a station supposed to figure out what other stations a national news program aired on?)
  • if it was part of a regularly scheduled news program
  • whether any consideration was received for the broadcast of the segment
• A list of all local news program segments dealing with community issues, providing the same information for each such segment as listed above for national news segments
• A list of all local civic affairs program segments that provides significant treatment of a community issue, with all the same details as listed above for news segments
• A list of all electoral affairs programs that includes significant treatment of community issues, with the same details as provided for news segments
• The title, length and date and time of the airing of all independently produced programming
• A list of all local programming not otherwise listed above, with title, length,and date and time of airing, and whether the station received consideration for airing the program
• For each PSA, the name of the sponsoring organization, the number of times the PSA ran, the length, and the percentage of times that were during prime time hours
• For each paid PSA, the same information as for unpaid PSAs
• Details of programming directed to "undeserved communities," defined as demographic segments of the community to which little or no programming is directed (query - if no programming is directed to a particular demographic segment, how can a station have anything to report in this category?)
• Details of religious services or other local religious broadcasts aired at no change
• A description of how the station determined that its programming met community needs
• Details on the amount of closed captioned programming broadcast by the station, and a list of exempt programs that were aired, with details as to the exemptions
• Whether the station voluntarily provided video description of any of its programs and, if so, how much
• Information about broadcasts about community emergencies, including a statement as to whether or not the station complied with the rules that require such programs to be accessible to the disabled
• Whether or not more than 3 hours per day of programming is provided pursuant to an LMA or JSA.

 As I was preparing this litany of information that the Form 355 will contain, I was trying to imagine how stations will comply with this requirement. As set out above, the form calls for an inventory of all program segments that deal with issues of public concern.  To fully comply with the rules, it would appear that a station will have to have staff members dedicated to monitoring all programming broadcast on the station - including on multicast streams and including all network and syndicated programming - to determine if the programming contains a significant discussion of important issues of public concern. Then, if any segment of any program does contain such a discussion, the station will have to write up the description of that program for inclusion on the Form 355, providing the duration, topic and time of broadcast of each such program. The Form 355 will not be a form that a station can simply fill out in the last few days of the quarter, but instead will require a minute-by-minute review of station operations, and a daily updating up information to be ready to upload it on the quarterly due date.

This would seem to be an incredibly burdensome requirement for any station. But, as with any new regulatory mandate, the burden falls hardest on small market stations. The costs and time to monitor station programming is essentially the same whether a station is in Glendive, Montana or New York City, as the amount of programming that a station broadcasts in either a big or a small market is essentially the same. Yet a New York City station has far greater resources from which to pay the costs of compliance with these rules. The small market station, in many cases already reeling under the costs of the digital transition, will be crushed by the new burden that these new rules entail. If ever the Paperwork Reduction Act should be brought to bear to reject a program for the regulatory burden it imposes, this should be the case. Lets hope that the Office of Management and Budget is more attuned to the burden that these rules create than was the FCC.

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At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism.  At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown.  The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations.  The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation.  From the discussion in the NPRM, new rules will apply to all broadcasters - large and small - and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with.  Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.

Among the specific proposals on which the Commission asks for comments include the following:

Community Advisory Boards:  The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station's programming.  The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board.  Other questions include how often the board should meet, and how the board members should be selected (or elected - though by whom, the Commission does not suggest).

Other Community Outreach Efforts.  The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters.  These would include the following:

• Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
• Focus sessions or town hall meetings
• Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
• Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.

Remote Station Operations.  Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation.  Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).

Quantitative Programming Guidelines.  The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time.  Questions include what categories of standards should be established (just local programs - or more specific requirements to set required amounts of news, public affairs and other categories - and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?

Main Studios.  The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license

Network Programming Review.  The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired.  If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?

Voice Tracking.  The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.

Local Music.  While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music.  With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.

Class A TV.  The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.

 

In addition to these specific proposals to be considered in this proceeding, the Commission mentions a number of other proceedings that are either underway or which will be initiated to consider other issues relevant to the consideration of localism in broadcasting.  The new proceedings to begin include:

Embedded Advertising.  The Commission specifically states in the NPRM that it believes that there are a number of broadcast practices that violate the spirit of the Commission's sponsorship identification rules.  On one of these issues, the Commission plans to launch a proceeding to investigate 'embedded advertising," commercial messages that are contained in program content (e.g. when the hero of a TV program sips a recognizable can of Coke or drives a Ford or goes to see a specific new movie).  That proceeding was on the Commission's agenda in December, but was pulled at the last minute but apparently will return in the near future.

Network-Affiliate Issues.  The Commission for years has had pending before it a petition by a group of owners of network affiliated television stations arguing that network affiliation agreements gave the networks too much power, effectively precluding affiliates from making programming choices that might better serve the interests of their communities.  It appears that the Commission will be resolving those issues, perhaps in a new proceeding to specifically consider some of those issues.

In-State Television Signal Availability.  The Commission promises to initiate a proceeding to determine if cable and satellite carriers should be permitted (or required) to provide subscribers with service from an in-state television station, even if the subscriber lives in a DMA where all the television stations originate in another state. 

FM Channel Availability.  The FCC has instructed its staff to come up with a tool to make it easier for the public to determine (on their own without hiring a consulting engineer) if a new FM station can be allotted at a particular community.  Look for this tool to appear on the FCC's website in the future. 

Other issues will be decided as part of other on-going proceedings.  These include:

Enhanced Disclosure Obligations.  In a simultaneously released Order, the FCC imposes certain enhanced disclosure obligations on television broadcasters - requiring that new forms be completed quarterly by broadcasters reporting on the types of programming that they broadcast, and requiring that public file information be maintained on the station's website (if the station has a website).  The imposition of similar requirement for radio is already under consideration in the Digital Radio proceeding.

Emergency Communications.  The obligations of broadcasters to communicate with their audiences in times of emergency, including communications with the hearing impaired and with audience members who do not speak English, are to be considered in an Emergency Communications docket that the Commission states will be decided soon

LPFM Issues.  Issues about providing LPFM stations with more protections from interference from full power stations, and a potential preference against FM translator stations, will be addressed in a Further Notice of Proposed Rulemaking in which the Commission will soon be receiving comments (see our post here)

Payola, Video News Releases and Sponsorship Identification.  The Commission currently has proceedings underway to enforce its payola rules in specific cases, and to gather more information about the use of Video News Releases (VNRs) by broadcasters, as well as certain specific enforcement actions.  The Commission intends to pursue these issues

Increase Opportunity for New Entrants.  In a separate proceeding adopted at the December meeting, the Commission adopted an order containing specific rules to enhance the opportunities for new entrants into broadcast ownership, thus increasing local media diversity.  That proceeding will also raise a number of new issues.  The text of the new rules adopted in that proceeding, and its proposals for other new rules, has not yet been released, but a number of localism related issues will be discussed in that proceeding.

Comments on this extensive list of proposals for new rules are due only 30 days after a summary of this proceeding is published in the Federal Register.  The Commission has given the public only 30 days to comment on proposals to return the broadcast industry to the regulatory structure of the 1980s.  All broadcasters should be paying attention to these proposals, as they will have a direct impact on their bottom line, and will also create numerous traps into which a broadcaster can fall at renewal time.  The five and ten thousand dollar fines that we saw in the last renewal cycle for stations that did not complete all of their quarterly issues programs lists may well be nothing compared to fines for violating some or all of these new standards if adopted.  Pay attention to this proceeding!

 

 

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The FCC today adopted new requirements for television broadcasters to quarterly file a report with the FCC quantifying their service to the public.  The order also requires that stations keep their public file on their website, if they have a website.  Broadcasters will also be required to broadcast twice each day a notice as to how listeners can find their public file.  This order resolves some of the issues raised in a rulemaking proceeding (about which we wrote here) begun over 7 years ago as part of the rules to govern TV's digital transition.  Yet these new rules apply to analog as well as digital television operations.  In fact, the public file rule goes into effect 60 days after the publication of the FCC's order in the Federal Register.  

The new FCC form will replace the Quarterly Issues Programs lists prepared by licensees since the mid-1980s.  The Quarterly Issues lists were originally adopted to replace more detailed reporting requirements which forced broadcasters to collect and file the same types of information that the FCC is now requesting.  While the new forms are not yet released, from the discussion at the FCC meeting, it appears that they will require the following information:

• Details about civic and election coverage provided by the station
• Information about programming from independent producers that is aired by the station
• Information about the number of Public Service announcements (PSAs) aired by the station
• A description of efforts that the station has undertaken to serve its community
• Specifics about emergency information provided by the station
• Information about how emergency and other information is provided to viewers with disabilities
• There was also some discussion that indicated that the reports would require information about how stations ascertain the needs of their community that are addressed in their programs.

While these new reports do not impose any new standards on a broadcaster requiring a specific amount of any type of programming, at least Commissioner Copps expressed his hope that this was but a first step in developing mandatory requirements for specific amounts of public service and public affairs programming for TV broadcasters.  Commissioner McDowell, on the other hand, recognized the implicit threat that these forms imposed - by requiring the detailed reporting of the types of programming that a station airs, the FCC is implicitly urging stations to air that kind of programming.  He feared that this was moving the FCC in the wrong direction toward more regulation and treading on First Amendment concerns.

Commissioner McDowell also expressed concerns about how stations - especially smaller ones - would meet the requirement that they have their public files online in 60 days.  While there was some discussion about the potential for waivers by smaller stations which maintain a bare-bones website or are otherwise financially distressed, one wonders if the Commission fully understands what needs to be in a public file, and the potential issues that can arise from putting it all on-line.  Not only will there be these new quarterly filings that will need to be put online (or linked to, as apparently the Commission will allow a station to link to documents that are already online), but there will also need to be links to children's programming reports, EEO annual reports, and Ownership filings on FCC Form 323.  Stations will also need to put on their websites Network Affiliation Agreements, LMAs or JSAs, documents relating to their ownership (including options, pledges and other financial documents that set limitations on the operation of the station) and various other sometimes voluminous documents.  From what was said at the meeting, about the only documents that will not need to be put on the website will be political file contents and letters from the public that are sent by "snail mail" (though email letters from the public will need to be maintained online).  I would fear that these obligations will be the kind of "gotcha" rules that will lead to fines at license renewal time, just as the failure to keep a complete public file, to complete Quarterly Issues Programs lists, or to observe all the obligations of the children's television rules led to so many fines during the recent renewal cycle. 

This summary is based on the Commission's brief Public Notice about the actions, and the statements made at the FCC meeting.  When the full text of the Commission's order is released, we will know more about the details of these requirements.  Stay tuned, and start thinking about increasing the electronic storage capacity of your station website.

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The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27.  The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling - including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations.  The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business - even though comments on the Commission's proposals on this matter were received just a month ago.

First, the Commission is to release an Order on Low Power FM.  We have written about some of the issues that could be decided previously - including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).

On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators.  We wrote about the proposals - made as part of the Commission's DTV proceedings (though to be applicable to all TV stations), here.  Proposed rules included the standardization of quarterly issues programs lists, making station's public fies available on the Internet, and quantifying other public interest obligations. 

The proceeding to encourage minority ownership has a laundry list of new proposals, from allowing minority groups to buy expiring construction permits for new stations and giving them increased time to construct, to allowing various modifications of the multiple ownership rules that would allow investments by non-minorities in companies controlled by minorities or new entrants.  We summarized those proposals here.  With the last comments on these proposals just filed on October 15, this would be an exceedingly quick action - as actions on most rulemaking proposals usually take a year or more to resolve.

This could be an incredibly important meeting for broadcasters - so be sure to watch for the results on Tuesday.

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The FCC today issued the long-awaited text of its decision on Digital Audio radio - the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future - 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues - some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas - one to be used solely for digital use - upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below. 

The additional actions taken by the FCC and announced in the Order include the following:

• Holding that a party that does a time brokerage agreement for more than 15% of any digital stream offered by another station has an attributable interest in the full station.  Thus, an owner who has a full complement of stations that he owns in a market cannot exceed the multiple ownership limitations by programming a digital over-the-air stream of another broadcaster in his market.
• Rejected all objections to full-powered operations by grandfathered super-powered stations and short-spaced stations, finding that such a limitation was beyond the scope of this proceeding, and that no compelling reason for these limitations had been shown - but promised to monitor the situation.
• Delayed consideration of whether noncommercial stations could use some of their digital capacity to offer commercial programming.
• Permitted time brokerage of digital channels under the same rules that apply to a station's main analog channel.
• Found it premature to adopt rules for the full transition to digital operations -  and adopted no obligations for any minimum operations in digital.  So the choice of whether to operate digitally is fully up to the broadcaster.
• Limited operation of subscription services on digital channels to those specifically authorized following a request for experimental authority, until after the Commission completes consideration of the comments filed in response to its Further Notice.
• Applied most standard programming obligations to digital streams - including the political rules and sponsorship identification (including payola rules).
• Applied EAS rules to digital radio channels just as they apply to analog channels.
• Adopted station identification rules requiring that the station use its main station call letters, followed by the community of license, and some identification, either orally or in text on the digital receiver,  that a listener is listening to a digital stream (e.g. "This is WXYZ digital channel 1, Anytown, USA").  As with a station's normal legal ID, the frequency of the station can be inserted between the call letters and the city of license.

In addition to these rules, the FCC adopted a Second Further Notice of Proposed Rulemaking.  Not only does this Further Notice address the issues listed above of allowing the commercial use of some digital capacity of noncommercial stations, and allowing the use of subscription services on digital streams, but it goes much further.  It suggests a number of revisions to FCC rules  - some of which would apply to analog as well as digital operations.  These include:

• A proposal that public files for radio stations be kept digitally on a station's website.
• The possible use of a standardized disclosure statement for reporting the public interest performance of broadcasters.
• The possible elimination of relaxed main studio and program origination requirements, which no longer require the origination of any programming at a main studio.
• A possible requirement that stations be manned, cutting back on recent Commission rulings that allow for unmanned, automated operations during nighttime and weekend hours.  in particular, the FCC points to the automation of EAS and how that has led to some problems in cases of off-hours emergencies.

Addressing these most important issues will need careful attention from broadcasters, as these issues may well impact all stations - not just those who choose to operate digitally.  Comments will be due 60 days after the Order is published in the Federal Register.  Replies will be due 30 days later. 

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