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The FCC's proposal to replace the never-implemented Form 355 with a new form to document the public interest programming of television broadcasters (to eventually be expanded to include radio operators) was published in today's Federal Register - setting January 17 as the comment date for those interested in telling the FCC what they think of the proposed new form.  We summarized the FCC's proposals for the content of the new form in our article here.  This form would also replace quarterly issues programs lists as the way that broadcasters demonstrate how they serve the public interest, and would be included in the new online public inspection file if the proposal for such a file is adopted by the FCC (comments on that proposal are due next week, on December 22, see our notice here). 

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

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

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

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Online public files, detailed reports about virtually every program aired on a television station as to its source and whether it addressed various types of perceived community interests, and other paperwork requirements that would have required most television stations to hire a new employee just to deal with the burden, were all part of mandatory television public interest reporting requirements adopted by the FCC back in 2007 (see our articles here and here on these reports on FCC Form 355).  Similar obligations were also proposed for radio but never adopted.  The TV "enhanced disclosure" rules have never been implemented, however, and were apparently never even submitted to the Office of Management and Budget  for approval of their compliance with the Paperwork Reduction Act.  The numerous petitions for reconsideration filed against these rules are on the tentative agenda for the next FCC meeting, to be held on October 27.  Not only is the disposition of these petitions on the agenda, but a proposal for a further proceeding to look at new requirements for an online public file, to be hosted by the FCC, is to be considered at the same time.  What can broadcasters expect to happen?

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

The Future of Media Report also suggested that the FCC and the public had no current way to determine whether broadcasters were serving the public interest, and no objective standards by which such service would be judged.  The Report did not suggest any concrete actions in this regard, other than to require more online disclosure of the public interest programming of broadcasters - though in a form more easily accomplished than that required by the 2007 rules.  The findings of the FCC's study were seized on by some of the media watchdogs and "public interest" groups active in broadcast matters, to argue for more reporting by broadcasters.  In recent weeks, including at the recent FCC public hearing held in Arizona to discuss the findings of the Future of Media Report, there have been suggestions that the FCC was sensing "renewed interest" in the questions of the public interest standards that should be applicable to broadcasters.  This new proceeding looks to reimpose some sort of online public file requirement.  From the brief description in the FCC's notice about the upcoming meeting, it seems that the FCC is proposing that every station's public file would be hosted by the FCC (which would presumably mean filing all public file documents with the FCC).  This may be the first step in attempts to better define the public interest requirements of broadcasters. 

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

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The end of September marks the close of the Third Quarter of 2011, which brings two quarterly filing obligations for broadcast stations.  The first obligation is that by October 10 all radio and television stations, both commercial and noncommercial, must prepare and place in their public inspection file Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of July, August, and September that dealt with those issues. The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion. See our full advisory for further details.  With the renewal cycle now in full-swing for radio stations and looming on the horizon for television stations, licensees are reminded to make sure their stations are meeting this obligation on a quarterly basis. 

Secondly, full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2011.  While technically, the deadline for filing the Form 398 with the FCC will roll to Tuesday, October 11th (because Monday is a Federal holiday, Columbus Day), given that the Reports must also be placed in the station's public inspection file within ten days after the end of the quarter, it would be best for stations to simply prepare and file their programming reports by October 10th to ensure they are timely. Our recent advisory is available here with all the details on the Children's Television Programming Reports.  By Oct. 10th, commercial stations should also prepare and place in their public inspection file the necessary quarterly certifications regarding compliance with the commercial limitations in Children's Programming. 

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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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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of July, August, and September dealing with those issues must be prepared and placed in the stations' public inspection file by October 10, 2007.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory here for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2007.  The Reports must also be placed in the stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by October 10th.

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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. 

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We recently wrote about the FCC's proceeding to assess the status of stations that are primarily home shopping in nature - to determine if such stations are serving the public interest and are entitled to must carry status on cable systems.  The FCC has just issued an Order extending the comment deadline in that proceeding.  Comments are now due on July 18, with replies to be submitted on August 2.  With a proceeding with its roots reaching back to 1993 - a few more days to decide the issues involved probably don't make much of a difference! 

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Two long awaited broadcast items seem to be missing in action at the FCC. Both the final rules on digital radio ("HD radio") and the Commission’s Notice of Proposed rulemaking on using FM translators to fill in gaps of the signals of AM stations, while expected quite a while ago, have still not been released by the FCC. The digital radio item, adopting rules on digital radio, eliminating the need to file for experimental authority for multi-channel FM operations and allowing AM stations to operate digitally at night, was adopted by the FCC at its meeting in March, yet the final text of the decision still hasn’t been released.  As the text has not been released, the effective date of the new rules has not been set.  Those AM stations ready to kick on their nighttime digital operations continue to wait.

As we explained in our previous posting on this matter, here, the digital radio order also contains a Further Notice of Proposed Rulemaking, addressing issues such as the public interest obligations of broadcasters on their multicast digital channels. That was one of the items that was supposedly delayed the action that finally occurred at the March meeting, and perhaps it is delaying the release of the text of the order in this proceeding

Many also expected that the Commission’s Notice of Proposed Rulemaking on allowing AM stations to use FM translators to fill in gaps in their service areas, particularly at night, would be released by now. See our post on the comments of Commissioner McDowell at the NAB Leadership Conference in February, here. Yet that Notice also has yet to surface from the FCC. As we’ve remarked before, there are many issues pending with respect to FM translators (including their relationships with LPFM stations), so this proceeding is quite complicated, again perhaps explaining the delays.

Nevertheless, broadcasters remain anxious for these actions from the FCC on these very important issues. It is interesting how, on some issues, the FCC can move remarkably fast (for instance in issuing the lengthy Notice of Proposed Rulemaking on setting the auction rules for the 700 MHz spectrum reclaimed from analog television, despite some very contentious issues), yet other proceedings seem to lag. Let’s hope that the lag in these cases isn’t for much longer.

 

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