Everyone knows that a fundamental principle of American democracy is the First Amendment – guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech.  It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice.  Few people – even broadcasters and other media companies – have cause to think about First Amendment principles in their day-to-day operations.  The concepts embodied by the First Amendment are almost a given – except when they are not.

In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts – often made without significant consideration of those First Amendment principles.  On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters.  One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here).  While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by the Communications Act and past FCC precedent. Continue Reading The First Amendment’s Role in Broadcast and Online Regulation

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year to pay for FCC operations for the current fiscal year. The notice proposes sticking with last year’s decision to assess television fees based on the population served by a station.  The proposed fees to be paid by each TV station are included in an Appendix to the Notice.  While proposing to use these unique fees for each station for this year, the FCC proposes for next year to group TV station fees within tiers, and it seeks comments on the tiers to be used.  While the total fees to be paid this by the radio industry are the same as last year, each station is proposed to pay more, apparently based on the FCC’s estimates that there will be fewer total stations paying fees.  The FCC also asks if it should again provide some relief to companies that, because of COVID-related financial difficulties, cannot pay their fees or cannot pay them on time.  Comments on the FCC’s proposal are due by June 3 and reply comments are due by June 18.  (Notice of Proposed Rulemaking)
  • As we noted a few weeks ago, FEMA has now officially chosen August 11, 2021 as the date for the next national EAS test (with August 25 as a backup date). The test will originate through Primary Entry Point facilities (i.e., principally through broadcast transmissions) rather than through internet dissemination via the Integrated Public Alert & Warning System (IPAWS) to test how well alerts are distributed if internet delivery is unavailable.  (FEMA Letter)
  • The C-band Relocation Payment Clearinghouse (RPC) posted its Draft C-band Handbook and will accept comments on the draft before 6:00 p.m. Eastern on May 14. The handbook covers, among other things, how funds will be distributed from the money received from entities that purchased C-band spectrum rights to those entities, like broadcasters, eligible for reimbursement for clearing the spectrum. In the past week or two, many broadcasters who are eligible for reimbursement, either through lump-sum payments or through the actual reimbursement of out-of-pocket expenses, have heard directly from the companies coordinating the reimbursement process asking questions about the details for such reimbursement.  Stations should be sure to quickly respond to these inquiries to avoid delays or other problems with those payments.

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s new rules that permit AM broadcasters to convert to all-digital operations became effective April 29.  The new rules require the filing of the FCC’s Digital Notification Form (Form 335-AM) within 10 days of the start of all-digital AM operations. A station converting to all-digital operations must run on-air notices for 30 days before converting to alert analog listeners of their plans.  See our blog post, here, for more on all-digital AM.  (Public Notice)
  • The FCC released a guide summarizing TV closed captioning quality standards (accuracy, synchronicity, completeness, and placement). The guide includes best practices and discusses how TV stations must monitor and maintain their equipment and signal transmissions associated with closed captioning, perform technical equipment checks, take any corrective measures necessary to ensure that captioning is passed through to viewers intact, and keep records of these activities for a minimum of two years.  The guide serves as a good reminder to TV stations of their closed captioning obligations.  (Closed Captioning Compliance Guide)
  • The application window is now open for parties interested in participating in the FCC’s upcoming auction of construction permits authorizing the construction of 136 new FM stations and 4 AMs (Auction 109). The application window will close on May 11 at 6:00 p.m. Eastern Time.  (FCC Auction 109 Page)
    • Following the Supreme Court decision reinstating the FCC’s 2017 changes in its ownership rules, which also reinstated the FCC’s incubator program (see our article here), the FCC noted that the broadcast interests of certain investors in auction applicants classified as “eligible entities” under that program may not need to be counted against the applicant if it is seeking bidding credits in the auction for having three or fewer other broadcast interests. The application of these rules is very fact dependent so consult your attorney for advice on how this change might affect your status in the auction.  (Public Notice)
  • New radiofrequency (RF) exposure rules, adopted in 2019, will go into effect on May 3, 2021, requiring that all new facilities must comply with the new rules beginning May 3, 2021 and providing a two-year compliance transition period for existing facilities. The new rules include updated signage requirements for areas of high RF radiation.  They also make changes to the “categorical exemption” or “categorical exclusion” rules by which some facilities were exempted from demonstrating compliance with RF exposure limits.  (Public Notice)
  • The FCC cleaned up its retransmission consent rules to make them consistent with certain statutory changes, making clear that the requirement for parties to negotiate retransmission consent agreements in good faith and the prohibition on exclusive agreements will continue indefinitely. The language of the FCC rules, which was based on prior statutory language, suggested that these provisions terminated on January 1, 2020.  This week, the FCC made clear that they have no expiration date and thus remain in effect.  (Order)

For more on upcoming regulatory dates and deadlines coming up in May and early June, read this article.  These dates include the close of the application window for Auction 109, the effective date for new distributed transmission systems rules, and upcoming license renewal and EEO deadlines.

The FCC’s order adopted in late October authorizing AM stations to voluntarily convert to operations in a fully-digital mode became effective yesterday when the approval of its information-collection obligations under the Paperwork Reduction Act was announced in the Federal Register.  This means that AM stations can opt for full-digital operations, which many have argued will provide a stronger, more stable digital AM signal with improved fidelity and more resistance to the environmental noise that plagues analog AM reception.  We wrote about the draft of the FCC’s order adopting these rules, and the paperwork required for a station to convert, here.  An FCC Form 335-AM must be filed upon a station’s conversion, containing information about the digital operation.  That form includes, among other required information, certifications that the digital operation meets all power and bandwidth requirements and can comply with EAS requirements. Converting stations must provide 30 days of notices to their analog listeners before switching to digital.

Will there be a rush of stations looking to take advantage of this opportunity?  The trade press has reported on several stations already making the change.  While most have associated FM translators so that their programming will continue to be available to analog listeners in their market even after their digital conversion, there have been stations that have opted to convert even without a translator.  These stations are seemingly banking on factory-installed digital AM radios that are included in some new cars.  We assume that other AM operators will take a wait and see attitude while some others, finding less and less of a return on AM facilities, may embrace this all-digital option as a way of attempting to revive this challenged part of the radio ecosystem.  Whatever your thoughts may be, if you operate an AM station, the opportunity is now open for full digital operations.

Update, 4/30/2021 – The FCC has issued a Public Notice confirming the April 29 effective date and the current availability of the new Form 335-AM.  

May is somewhat lighter on broadcast regulatory dates and deadlines than some recent months, but there are still dates to note.  Among other things, the FCC will begin the process of auctioning 140 construction permits for new AM and FM radio stations across the country.  Also, broadcasters in several states, with an eye on the June 1 deadline, should be preparing now to file applications for license renewal or to prepare and upload to their public inspection file EEO public file reports, demonstrating their compliance with the FCC’s equal employment opportunity requirements.  So let’s take a look at some of the important dates for May (and early June).  As always, be sure to consult with your communications counsel on the dates and deadlines applicable to your operation.

The Auction 109 window for “short-form” applications to participate in the auction of 136 FM construction permits and 4 AM construction permits began at 12:00 p.m. Eastern Time on April 28 and will close at 6:00 p.m. Eastern Time on May 11.  By that deadline, interested parties must file with the FCC their short-form applications (FCC Form 175) setting out information including their ownership and the channels on which they are interested in bidding.    The auction is scheduled to begin on July 27.  A freeze on the filing of FM minor modification applications remains in effect until the end of the auction filing window.  This freeze was imposed to ensure that Commission staff and auction bidders have a stable database to work with during the auction.  Read more about the auction and freeze, here and here. Continue Reading May Regulatory Dates: Auction Applications for AM and FM Construction Permits for New Radio Stations, New DTS Rules, License Renewals and More

Last week, the NY Times ran an interesting article, here, about how many old TV programs now available on streaming services are missing music that was featured on the original broadcast.  This was because when the music rights were initially purchased,  their use was limited to over-the-air broadcasts or was limited to a short period of time, with the producers never envisioning that the programs would be available through on-demand streaming services decades after they originally aired on over-the-air television.  While not mentioned in the article, for many radio broadcasters one of the series most missed on streaming services is the industry favorite WKRP in Cincinnati.  That series took forever to get to digital outlets, and still does not appear to be on any subscription streaming service, reportedly because of music rights issues.  This article and the issues that it highlights should be a warning not just to TV producers, but also to anyone planning to use music in audio or video productions – including podcasts and online videos – that clearing music rights is essential to insure that these productions can be fully exploited  not only when they are first made available, but also in the future if they are repurposed for other platforms.

We have written before (see, for example, our articles here and here) about the need to get permission from the copyright holders in both the musical work (or musical composition – the words and music to a song) and in the sound recording (or master recording – the song as recorded by a particular band or singer).  Just signing up with a performing rights organization (ASCAP, BMI, SESAC or GMR) is not enough because, while podcasts may involve the public performances of the musical works that these organizations license, they do not give rights to make the permanent fixed copies of those songs, synchronized with other audio in the podcast, that can be accessed and downloaded on demand.  These uses require the additional copyrights to reproduce and distribute music, and arguably to make derivative works, that can only be obtained from the copyright holder (see our article here describing why the PRO license itself does not give all rights needed to use music in podcasts).   Similarly, the rights to the sound recording must also be obtained from the copyright holder in the recording – and payments to SoundExchange do not cover the on-demand music uses involved in a podcast.  Thus, when the necessary rights are not obtained from the copyright holders, we have seen podcasts go silent after infringement claims are brought or threatened (see our article here). Continue Reading Missing Music On Streamed TV Programs Highlights Rights Issues for Podcasters and Video Producers

In January, the FCC adopted new rules for Distributed Transmission Systems (DTS) for TV broadcasters (the FCC’s order is available here).  Last week, the rules were published in the Federal Register, setting the effective dates of these new rules as May 24, 2021 (except as they apply to Class A TV, LPTV and TV translators, where new rules are subject to further review by the Office of Management and Budget under the Paperwork Reduction Act before they become effective).  The FCC yesterday released a Public Notice confirming that effective date.  The new rules for DTS will allow over-the-air TV broadcasters to provide stronger, more uniform coverage throughout their service areas, rather than having coverage strongest near to a station’s transmitter site and decreasing as the distance to the viewer increases (or as terrain obstacles intervene).

DTS, also referred to as Single Frequency Networks, allow TV stations to, instead of having one large transmitter in the center of its market area, use multiple transmitters throughout the service area to provide more consistent coverage throughout the market.  The new ATSC 3.0, Next Gen television transmission standard that is being rolled out throughout the country was designed for this kind of operation. This transmission model is more akin to the operation of cellular telephone networks than to the old broadcast model.  ATSC 3.0 uses a transmission system in which multiple signals on the same channel that are receivable at the same location reinforce each other.  Older broadcast transmission systems face issues when trying to operate multiple transmitters on the same channel, as these transmitters can cause destructive interference in areas where their coverage overlaps, making coverage worse, not better  (see, for instance, the concerns about the proposals for the use of “zonecasting” for FM stations, where arguments have been raised that multiple FM same-channel boosters rebroadcasting a primary FM station will create pockets of interference within a station’s market – see our references to such comments in articles here, here, and here).  The new DTS rules allow TV broadcasters to take advantage of the new ATSC 3.0 transmission characteristics to provide uniform, strong signals throughout a station’s market, without the destructive interference. Continue Reading Effective Date Set for New Rules on TV Distributed Transmission Systems (Single Frequency Networks) – An Assist in the Roll-Out of Next Gen TV 

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • At the FCC’s regular monthly Open Meeting, the Commissioners voted to adopt new rules mandating sponsorship identification of foreign government-provided broadcast programming. The new rules require on-air and public file disclosures when programming is supplied by a foreign governmental entity.  Even though many broadcast groups argued for rules requiring broadcasters to take specific steps to warn programmers about these requirements and to research the foreign-government connections of programmers only when they had reasons to suspect a programmer of having such connections, the FCC required that these steps be taken whenever they enter into any agreement to lease airtime.  (Report and Order)
  • As we noted last week, Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The FCC wasted no time acting on this letter and is now seeking comment on whether updates are needed to the FCC’s rules that implemented the CALM Act.  The FCC wants to hear from consumers about their television-watching experience as it relates to the loudness of commercials and from the industry about whether the rules are serving their intended purpose.  Comments are due by June 3 and reply comments are due by July 9.  We wrote more about this issue and the request for comments, here.  (Public Notice)
  • The FCC adopted a ten-application limit for the upcoming filing window for noncommercial FM radio stations to operate in the reserved band below 92 MHz on the FM band. (Public Notice).  The Media Bureau also set the dates for the filing of applications for these new noncommercial stations – requiring that they be submitted during a filing window running from 12:01 Eastern Time on Tuesday, November 2, 2021 through 6:00 pm Eastern Time on Tuesday, November 9, 2021.  More details about these applications will be released by the Commission at some point in the future.  Read more about this upcoming window on our blog, here.  (Public Notice)
  • New rules for distributed transmission systems (DTS, also known as single frequency networks) will go into effect May 24, 2021. The new rules are designed to give broadcast TV stations greater flexibility in the placement of multiple transmitters throughout their protected service area to provide a stronger, more uniform signal throughout their markets.  This is seen as important to facilitate the provision of the additional services that can be offered through the new ATSC 3.0 transmission standard (NextGen television).  The new rules provide broadcasters with a bright-line rule that will expand the permissible range of “spillover” by DTS facilities beyond current protected service areas.  The rules for full-power stations go into effect on May 24, but rules that apply to Class A, low power TV, and TV translator stations will not be effective until some later date following approval by the Office of Management and Budget.  (Federal Register)

In the week ahead, parties interested in participating in the FCC’s upcoming auction of 136 FM and 4 AM construction permits (Auction 109) can begin submitting their short-form applications (Form 175) on April 28 at 12:00 p.m. Eastern Time.  The application window will close on May 11 at 6:00 p.m. Eastern Time.  (FCC Auction 109 Page)

The FCC released its decision to limit to 10 the number of applications that can be filed by one party in the next window for new noncommercial FM stations in the reserved FM band (those channels below 92.1 on the FM dial).  No party can have attributable interests in more than 10 applications filed in the window.  By making this decision, the FCC cleared the way for the window itself, which was first hinted at last summer (see our article here).  So, having cleared the way, the FCC’s staff, in another public notice, announced that the filing window will be in early November – and run from 12:01 AM EDT on November 2, 2021 until November 9, 2021 at 6 PM EST.

Further filing details will be provided by the FCC in a subsequent notice.  But applicants can expect that, in the window, they will need to file applications fully setting out their technical proposals so that the FCC can evaluate which applications are mutually exclusive (i.e., which are in technical conflict so that only one can be granted without creating prohibited levels of interference to the other).  Applicants will also need to set out their claims under the “points system” used to choose between applicants who are mutually exclusive (see our articles here and here on recent changes to that points system).  Nonprofit, educational parties interested in filing for a new noncommercial FM channel should start now to consult with their engineers and attorneys about the preparations needed to file for that new station in the upcoming window in November.

Earlier this week, we highlighted a letter sent last week from Congresswoman Anna Eshoo asking the FCC to review CALM Act complianceThe letter noted that the FCC has received thousands of complaints about loud commercials in the decade that the law has been in effect without having taken any enforcement action.  The FCC wasted no time in reacting, with Media Bureau issuing a request late Monday for comments on the current rules which implement the law and whether changes to those rules are needed.  Comments are due June 3, 2021, with reply comments due by July 9.

The CALM Act (the Commercial Advertisement Loudness Mitigation Act) was passed in 2011 due to the perception of many in Congress that the volume of commercials on broadcast, cable and satellite television was far higher than that in the programming that surrounded the commercials.  After the legislation was passed, the FCC adopted rules to implement the Act (which we described here).  Those rules were principally based on compliance with a set of ATSC (Advanced Television Systems Committee) recommended practices, to be enforced through a complaint-driven system. The FCC has updated those rules once (when ATSC updated its recommended practices – see our article here).  The FCC now asks if those rules should be revisited to make them more effective in combatting the perceived problem of loud commercials. Continue Reading FCC Being Anything but CALM About Congressional Letter – Asks for Public Comments on CALM Act Enforcement