July 2008

We’ve written about the FCC rules against broadcasting phone calls without permission of the person at the other end of the line.  Specifically, we’ve written about the FCC’s decision that held that these rules prevent the broadcast of people’s voicemail messages without their permission, and about the FCC’s decision to fine a station even though…

I recently attended the convention of the Montana Broadcasters Association, and just a few weeks before that I had been at an event sponsored by the Washington State Association of Broadcasters.  Talking with small market TV Broadcasters in those states, an issue that does not affect major television markets but which complicates the digital transition has become clear.  In smaller markets in many states, particularly in some of the western states where there are multiple geographically dispersed cities in many television markets, there is at least one network affiliate in many cities that is either an LPTV or TV translator station.   As we’ve written before, LPTV and translator stations are not required to convert to digital by the February 2009 digital conversion deadline.  Instead, these stations can continue to operate in analog until an as yet unspecified date in the future.  While these stations are allowed to convert to digital, many do not have the resources to do so.  Thus, many of these stations will continue to broadcast in analog after the February 18 transition deadline.  What makes the issue particularly problematic is that most  DTV converters do not allow the "pass through" of analog programming, i.e. once they are hooked up, television sets only receive digital signals and analog signals are effectively blocked.  This presents the potential of marketplace confusion for those viewers who do not receive their signals from cable or satellite, as they will be getting conflicting messages – being told to get a digital converter to pick up the full-power stations in a market as they convert to digital, but if the consumer buys the wrong converter box, they will not be able to receive other LPTV and translator stations in the same market.

The problem has been exaggerated as converter boxes with analog pass through have been delayed in reaching the marketplace.  When I bought converter boxes in Washington, DC early last month, neither of the two major electronics retailers had the converter boxes with analog pass-through available.  A well-reviewed box from EchoStar was supposed to hit stores last month, but it is in short supply.  I can find it on-line only at the Dish Network’s (owned by EchoStar) own website.  Thus, for households who buy and connect most of the available digital converter boxes, suddenly their analog LPTV stations are gone.  In some of these smaller Western markets, that may mean the loss of one or more local network affiliates.Continue Reading The Digital Transition End Game in Smaller Markets – The Problem with LPTV

Last week, the FCC commenced its long anticipated proceeding to reexamine its sponsorship identification rules. This proceeding has been rumored for over six months, having appeared on an agenda for a Commission open meeting in December, only to be pulled from the agenda days before it was to have been voted on. The Commission has initiated this proceeding, to a great degree, at the urging of Commissioner Adelstein who has been vocal in his concerns that the broadcast and advertising industries, in adopting advertising techniques to respond to technological and marketplace changes, has been exposing the public to commercial messages without their knowledge.  One of the principal practices of concern to the Commission, though not the only one, is embedded advertising (as the Commission refers to product placement and product integration into the dialog and/or plot of a program). While many of the trade press reports have focused on embedded advertising, this proceeding is wide-ranging and important to the broadcast, cable and advertising industries. Comments on the proceeding will be due 60 days after its publication in the Federal Register, with replies 30 days later.   We have prepared an Advisory, summarizing the issues raised by the Commission in this proceeding, which can be found here.

According to trade press reports, this proceeding was initially planned as a Notice of Proposed Rulemaking (NPRM), which would have proposed rules which, after public comment, could have been immediately adopted. After significant lobbying from the advertising community, the Notice was released in two parts. First, there is a Notice of Inquiry (NOI), asking a series of questions about the current state of advertising on broadcast and cable outlets, and asking how the Commission should amend its rules to deal with new advertising techniques. Second, the Commission’s announcement contains an NPRM with respect to certain specific items, including proposing to clarify the type of sponsorship identification necessary in television advertising, the extension of the sponsorship identification rules beyond local origination cablecasting to cable network programming, and clarification of the rules with respect to live-read radio commercials. The specifics of the NOI and the NPRM are set forth in our Advisory. Continue Reading FCC Begins Investigation of Embedded Advertising and Sponsorship Identification

David Oxenford conducted a session at the Michigan Association of Broadcasters Annual Meeting and Leadership Retreat at the Crystal Mountain Resort in northern Michigan on July 15, 2008.  The title of his session was A Washington Roadmap to the Broadcast and Internet Regulatory Future.  David discussed legal issues for broadcasters in their digital transition…