December 2011

The FCC issued its Notice of Proposed Rulemaking in its reexamination of its multiple ownership rules, suggesting limited changes in its rules governing the number of interests that one person or company can have in media outlets in a particular community.  The FCC’s tentative conclusions leave most of the current rules in place – including rules that limit the number of radio and TV stations that one entity can own in a market, and rules prohibiting combined ownership of daily newspapers and TV stations in the same market.  The Commission also proposed keeping the dual network rule, prohibiting the combination of any of the four major TV networks.  Shared Services Agreements were another issue addressed by the FCC – proposing to examine SSAs and and other news and program sharing agreements between otherwise independent stations.  The FCC did propose the abolition of one rule – the rule that currently limits the ownership of radio and TV stations in the same market.  In the NPRM, the FCC suggested that other ownership rules could be waived in some instances, so the details of waivers and exceptions could become an important aspect of any final decision in this proceeding.  All of these conclusions are tentative, and the Commission asks many questions about each of its tentative conclusions and asks for public comment on its ideas.  The public can formally weigh in with comments for 45 days after the NPRM is published in the Federal Register, and file replies 30 days later.  After that, there is sure to be much lobbying of the Commissioners before any final decision is made.

This proceeding combines several on-going proceedings.  The Commission started its required Quadrennial Review of the ownership rules over two years ago with a series of public hearings, and a Notice of Inquiry.  The Commission also is dealing with the clean-up of its last review of the ownership rules, which was embodied in a controversial decision reached late in 2007 (see our summaries here and here).  The Third Circuit Court of Appeals threw out significant parts of that decision, finding that the FCC’s relaxation of the newspaper-television rules had not been the subject of adequate notice to the public, and that the FCC had ignored its obligations to take steps to promote minority ownership of the media.  Some parties seeking repeal of the newspaper-television cross-ownership rules have asked the Supreme Court to review the Third Circuit decision – but this NPRM looks to reexamine many of these issues in the event that the Supreme Court doesn’t otherwise preempt their decision.    Below we’ll take a look at specific questions raised by the NPRM.Continue Reading Multiple Ownership Proposals Released By FCC – Abolish Radio-TV Cross-Ownership Rules, Leave Most Other Rules In Place, Examine Shared Services Agreements

The FCC approved the first database manager for TV white spaces devices – those wireless communications devices that will operate in the spectrum currently used by broadcast television, operating on channels not in use in a given area and supposedly avoiding interference to the reception of over-the-air television stations.  Spectrum Bridge is the first company to be approved to act as a database manager, though there are several other companies who have applied and whose systems are in various stages of development and testing.  The database manager is to keep a list of all of the services that a white spaces device needs to protect from interference, and be able to transmit that information to devices to tell them what channels they can use in a given geographical area.  Protection must be accorded not only to TV stations and TV translators and LPTV stations, but also to the receive sites of Multichannel Video Programing Distributors (cable and satellite TV), certain broadcast auxiliary operations, off-shore telephone services and radio astronomy users, some land mobile operators, and certain wireless microphone users.  Today’s Public Notice specifically addresses how wireless microphone users need to register with the FCC to be protected from interference.

The Spectrum Bridge database was tested a few months ago, and the FCC’s letter outlines a number of concerns expressed about its operations.  These include several problems encountered by the NAB in registering sites that were supposed to be protected by white spaces devices.  While licensed facilities of TV stations and land mobile users are available from the FCC’s own database, receive sites for MVPDs and translators need to be registered, as do the location of certain mobile broadcast auxiliary stations.  The FCC ordered Spectrum Bridge to re-open its database for the registration of additional sites to be protected, and said that this would provide registrants the ability to test the modifications to the system in the coming weeks before the system becomes operational. Continue Reading FCC Approves First TV White Spaces Database Manager – Wireless Devices in TV Band to Start Operations in January

What’s up for broadcasters in 2012?  What dates do they need to keep on their radar to make sure that they are in legal compliance?  Our broadcaster calendar for 2012 is now available and ready for your review.  It’s an especially busy year – with television license renewals beginning and radio renewals continuing, lowest unit…

The FCC this week adopted its rules implementing the CALM Act to address the public perception that commercials are too loud – louder than the programming which they accompany. Congress passed a law last year requiring that the FCC address the issue, and this week’s order adopts these implementing rules which will go into effect on December 13, 2012 (see our articles on the passage of the Act here, and on the Notice of Proposed Rulemaking in this proceeding here). The rules adopted by the FCC allow television stations and MVPDs (multichannel video programming distributors – cable and satellite TV companies) to meet the requirements of the Act by relying on the A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee) setting out a process by which these TV providers can assure that commercials that they insert into program streams are not louder than the programs that they accompany. The rules also allow a safe harbor by which stations and MVPDs can comply with the Act in connection with “embedded commercials”, i.e. commercials that are sent to the station or system by a network or other program supplier.

The specific requirements for compliance with the new rules depend on whether the advertisements that are being broadcast are originated by the station or system, or whether they come embedded from some third-party program provider. For commercial insertions by the station or MVPD, compliance is assumed if they install the equipment required by A/85, use it in connection with their insertions, and maintain and repair it as necessary to keep it in good working order. For embedded commercials, stations can run all the programming through some sort of real time processing to ensure that the audio loudness is uniform. However the Commission was concerned would audio processing would degrade the audio quality of the programming provided by third parties. Thus, the Commission offered an alternative safe harbor with respect to embedded advertising. To comply with the safe harbor, stations and systems would either:

  • Rely on widely available certifications from networks and other program suppliers that they have complied with the standards necessary to assure that the commercials are no louder than the programming in which they are embedded, or
  • The stations and systems will need to perform “spot checks” on programming for which they have obtained no certification. Spot checks are done as follows:
    • Large stations (with over $14 million in annual 2011 revenue based on BIA Media Access Pro information) and very large MVPDs ( those with over 10 million subscribers) needs to annually spot check 100% of their non-certified programming. Large MVPDs (those with between 500,000 and 10 million subscribers) need to spot check 50% of their programming. Small stations and systems are exempt from regular spot check obligations
    • The spot check is a once-a-year obligation, requiring the station or system to do 24 hours of monitoring within a 7 day period, including at least one complete program from each non-certified program supplier, to ensure that the programs comply with the A/85 standards
    • Spot checks will phase out over 2 years as more and more programming is brought into compliance
    • If a spot check reveals an issue, the station or system needs to notify the program provider and the FCC, and do another spot check of the non-compliant programming within 30 days . If the programming continues to be noncompliant, then the programming is outside the safe harbor (meaning that, if a station or system continues to run it, they can be subject to fines)

The Order also set out additional details about what kinds of programming are subject to the rules, the complaint process for those who believe that stations or systems are not complying with their obligations, and waivers for small stations and systems.  These matters are discussed below.Continue Reading A Summary of the FCC Rules Implementing the CALM Act to Regulate Loud TV Commercials

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…

With the Iowa primary approaching, political ads are increasing on the local Iowa TV stations.  While the national press may have been focused on some of the recent Rick Perry ads about the end of "don’t ask, don’t tell" and its connection to the celebration of Christmas in the public schools, there has been an even more controversial ad running on Iowa TV stations – anti-abortion spots being run by Randall Terry, the head of Operation Rescue, who has announced that he is running for the Democratic nomination for President – challenging President Obama for the privilege of running in next year’s election.  Some of the planned ads have graphic depictions of the results of abortions.  These ads are disturbing to some, and many viewers (and many stations) are concerned and upset about their being broadcast – so why are stations running them?  For the most part, it is based on the requirement of Section 315 of the Communications Act that prohibits a station from censoring an ad from a candidate for public office.  Not only that, but court rulings concerning the reasonable access provisions of the Communcations Act prohibit stations from channeling potentially disturbing ads to later night hours – limiting stations to a pre-ad disclaimer warning viewers of the content to come and advising them that the ad is being aired by a candidate and is not subject to station censorship (stations should work with counsel to use language on such a disclaimer that has been approved by the FCC). 

But there are issues that stations need to explore to prevent everyone with the money to cover an ad from claiming to be a candidate for office and being able to air disturbing images on broadcast stations.  Under the law, a person has no censorship rights for their ads (and reasonable access rights for Federal candidates) only if they can show that they are a "legally qualified candidate."  In most cases, the question as to whether someone is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting that person.  But once the local election authority receives the papers (and does whatever evaluation may be required), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for Presidential candidates, especially in caucus states, and for write-in candidates, there are slightly different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a "substantial showing" that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election in the caucus would do. What does that mean?Continue Reading Graphic Abortion Ads In Iowa By Presidential Candidate – And A Seminar on FCC Political Broadcasting Rules

While the FCC is entertaining comments on its proposal to move the public inspection file for broadcast television stations online (see our article here), the existing physical public files of several New York area broadcasters came under examination by the New York Times, according to an article in Sunday’s paper. The article seemed to both make fun of the contents of the required public file, while at the same time noting that the people at several stations contacted by the reporter seemed to be unaware of the Commission’s requirements that the file be made available immediately to anyone who visits a station and asks to see it, and that requiring appointments is not an option. We’ve written in the past about stations that received substantial fines for requiring a visitor to make an appointment to see a station’s files (see, one case where a commercial TV station was fined $10,000, and another where a noncommercial FM was fined $8000 for a similar violation).  If the NY Times article is accurate, stations need to reexamine their policies and be sure that those dealing with the public know of the location of the file and the fact that it must be made available upon request – no questions asked. For more information about the public file requirements, see our Guide to the Basics of the Public Inspection File for Commercial Stations, here.

The second aspect of the report, poking some fun at some of the weird comments from the public found in the file, reinforces some of what I have been told by broadcasters. At a broadcaster meeting last week, I was told stories of station public files that have expanded exponentially since the FCC added a requirement that the file contain emails from the public, as well as letters. Broadcasters report that the letters from the public can now often take up several drawers of a file cabinet, while the remainder of the file fits in a single drawer. While the Commission has tentatively concluded that these letters would not be required to be included in the electronic online file, the recent rulemaking proposal did suggest that the letters be retained at the station, and that perhaps summaries of the written comments be made part of the online file. In addition, comments were requested as to whether social media posts about station operations be kept in some fashion – even though sites like Facebook and Twitter, by their very nature, keep most of what it posted on their sites for the public to view (see our summary of the proposals here). Broadcasters at my meeting last week were very concerned about the volume of paper that would generate, and the need for manpower to review Twitter feeds and Facebook posts almost around the clock to see if any needed to be placed into the file as they related to the station operations.Continue Reading What the NY Times Article on the Broadcast Public Inspection File Says About the FCC’s Public File Requirements

New ASCAP royalties are on their way to radio broadcasters. ASCAP and the Radio Music Licensing Committee (RMLC) have just announced that they have reached an agreement in principal to return to the percentage of revenue royalties that for so long were paid by radio stations to ASCAP and BMI – a system that…