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A month ago, the FCC released its Notice of Proposed Rulemaking looking to reassess the requirement that broadcasters and MVPDs (cable and satellite television) engage in “good faith” negotiations over the retransmission consent necessary for the MVPD to rebroadcast the signal of a broadcast television station, triggering numerous questions throughout the industry (and among financial analysts who follow the television industry) as to what that release meant. On Friday, the Notice of Proposed Rulemaking was published in the Federal Register, setting the dates for the filing of comments on the questions raised by the Commission. Comments are due on December 1, and Reply Comments on December 31. Given that this may well be the same period of time in which TV stations are preparing their initial applications for the incentive auction, and given that the reply falls in the middle of the holidays, don’t be surprised if requests for an extension of these comment dates are filed.

But no matter the dates on which comments are filed, this proceeding obviously raises a number of important issues. While many industry analysts wondered if, by the very fact that the Notice was released, it signaled the FCC’s intent to “go after” broadcasters in their retransmission consent dealings – perhaps as a way to encourage them to participate in the incentive auction by threatening the revenue from the retransmission consent fees that they now receive. But what most of these observers fail to note is that the release of the NPRM by September 1 was actually not the initiated by the FCC Commissioners. Instead, the action was mandated by Congress when it adopted STELAR, the law that extended the right of satellite television companies to retransmit the signals of local television stations. That legislations included many required actions and studies (see our summary here), including the requirement that this NPRM be started by September 1. Thus, the Commission actually waited as long as it could in releasing this rulemaking order.
Continue Reading Dates Set for Comments on Good Faith Negotiation of Retransmission Consent Agreements – What is the FCC Asking?

October is one of those months where the regulatory stars align, when not only do broadcasters in many states have EEO Public File report obligations, but also Quarterly Issues Programs Lists need to be placed in the public files of all commercial and noncommercial stations, and Quarterly Children’s Television Reports need to be filed at the FCC and placed in the public files of television stations.  On top of these routine obligations, there are a number of actions likely to be taken by the FCC that may affect many segments of the broadcast industry.  So let’s look at some of the specifics.

First, by October 1, EEO public file reports should be placed in the public file of stations with 5 or more full-time employees, if those stations are located in the following states and territories: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.  In addition to those obligations, radio stations that are part of employment units with 11 or more full-time employees and are located in the states of Florida, Puerto Rico, and the Virgin Islands must prepare and file with the FCC EEO Mid-Term Reports on FCC Form 397, submitting specifics of their employment practices in the last two years (through the submission of their Public File reports) as well as some additional information.  The Mid-Term report for those stations are due by October 1.  More information about these EEO obligations can be found in our article here.
Continue Reading October Regulatory Dates for Broadcasters – Many Routine Filings for All Broadcasters, Incentive Auction Actions, and More

In an article posted on the FCC’s blog yesterday, FCC Chairman Tom Wheeler listed four actions that would soon be coming out of the FCC to address broadcast issues. For TV, these include looking at what constitutes “good faith negotiations” in the retransmission consent context, and whether to do away with the FCC’s network nonduplication protection rule. For radio, the long-delayed AM revitalization docket will apparently soon be considered by the FCC. And, finally, the FCC may modernize the contest rules for all broadcasters by allowing more online disclosure of contest rules. What are these proceedings all about?

The retransmission consent proceeding grows out of Congress’ adoption of STELAR, which authorized the continued retransmission of broadcast signals by satellite television operators. As part of that legislation, which we summarized here, the FCC was directed to start a proceeding to determine whether it should adopt new rules to define what constitutes “good faith negotiation” of retransmission consent agreements. There has already been significant lobbying on this issue by both sides. Right now, good faith negotiation really has not been an area where the FCC has intervened beyond using its bully pulpit to urge parties to retransmission consent disputes to reach a deal. It is commonly recognized that failing to deal with a MVPD at all would be a violation of the good faith standard, but many MVPDs now want the FCC to become more involved, putting limits on TV channel blackouts, especially just before big televised events (like the Super Bowl or the Oscars), limiting the blackout of web-based programming to subscribers of an MVPD that is involved in a dispute, limiting the bundling of Big 4 network programs with programming from other channels provided by the TV broadcaster, and similar limits. The Chairman’s blog is short on specifics, but does suggest that, while some specific prohibitions may be suggested, the FCC would also be able to look at the totality of the circumstances to determine if a broadcaster and an MVPD were negotiating in good faith (note that these rules apply to broadcast retransmission consent negotiation, not those between MVPDs and cable channels not shown on broadcast TV).
Continue Reading FCC Chairman Details Issues Coming Soon for Broadcasters – Review of Retransmission Consent, Network Nonduplication, AM Improvements, and Contest Rules

With tomorrow’s FCC meeting to detail dates and procedures for the TV incentive auction dominating the headlines, there are other August regulatory dates that should not be overlooked. While we never can get to all of the relevant dates in our monthly highlight article, here are a few items worth your consideration. For one, we will soon be seeing details for submitting the regulatory fees that are due from all commercial broadcasters (and most other commercial entities regulated by the FCC) before the end of September. Last year, that notice came out right at the end of the month – immediately before the Labor Day weekend, somewhat later than in past years (see our article here). So be on the alert for that notice, to allow you to be ready to pay those mandatory fees before the applicable deadline.

Already, by the first of the month, commercial and noncommercial full-power and Class A television stations and all radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment units with 5 or more full-time employees should have put into their public inspection files their annual EEO Public Inspection File Report, and posted those reports online so that they are accessible to visitors to their station websites. As part of the Mid-Term EEO reporting process we wrote about here, radio stations in the Carolina’s that are part of employment groups with 11 or more full-time employees should have also filed their Form 397 EEO Reports with the FCC by August 3. Noncommercial television stations in Illinois and Wisconsin should also have submitted their Biennial Ownership Reports by August 3, as should have noncommercial radio operators in both North and South Carolina and California. Details on all of these standard regulatory deadlines are available in our Broadcaster’s Regulatory Calendar, here.
Continue Reading August Regulatory Dates for Broadcasters – While Incentive Auction Dominates the News, Other Dates to Watch

Over-the-top video systems, using the Internet to transmit over-the-air TV signals to consumers, are back in the news. Last week, a US District Court Judge in the Central District of California, in a case involving FilmOnX, an Aereo-like service that had been involved in many of the court decisions that had preceded the Supreme Court’s Aereo decision, suggested that such platforms can get that public performance right through the statutory license provided by Section 111 of the Copyright Act – the same section of the Act that allows cable systems to retransmit broadcast signals without getting permission from every copyright holder of every program broadcast on those stations. Just last year, we were writing about the Supreme Court decision in the Aereo case, where the Court determined that a company could not use an Internet-based platform to stream the signals of over-the-air television stations within their own markets without first getting public performance rights from the stations themselves. The new decision raises the potential of a new way for these Internet services to try to get the rights to rebroadcast TV signals.

The FilmOn decision was on a motion for summary decision, and is a very tentative decision – the Judge recognizing that he was weighing in on a very sensitive subject, going where both the FCC and the Copyright Office have thus far feared to tread, and disagreeing with the Second Circuit Court of Appeals that had held the opposite several years ago in the Ivi decision. The FilmOn decision is a preliminary one – subject to further argument before the Judge at the end of the month. Even if adopted as written, the judge recognized the potential impact of his decision, and the fact that it contradicted Ivi and other decisions. Thus, the decision stated that its effect would be stayed pending an immediate appeal to the Ninth Circuit Court of Appeals. So, even if finalized, we have not seen the last of this argument yet.
Continue Reading A Compulsory License for Internet TV Platforms to Retransmit Broadcast TV? One US District Court Considering FilmOnX Seems to Think So

The FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any multichannel video programming distributor (i.e. cable or satellite TV) from carrying the signal of the station at the end of a retransmission consent agreement unless the station is accessible over-the-air or by Internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this Petition are due by August 14. This is an initial Petition for Rulemaking (which can be viewed here), so these comments will inform the FCC as to whether to further pursue the proposals made in the Petition through a formal Notice of Proposed Rulemaking which would be needed before a rule change.

Obviously, this petition raises controversial issues. Mediacom asserts that it is looking after the interests of consumers in being able to access television programming – and not losing that access during retransmission consent negotiations. Broadcasters, on the other hand, feel that the ability to remove their signal from an MVPD is their most effective bargaining chip in retransmission consent negotiations. Broadcasters will no doubt argue that they have the rights to their programming and, if the MVPD will not agree to terms for its carriage, the MVPD should no longer have the right to carry the programming.
Continue Reading FCC Asks for Comments on Petition for Rulemaking that Would Tie TV License Renewals to Restrictions on Blackouts after the Expiration of Retransmission Consent Agreements

May is one of those months where there are no routine, recurring FCC regulatory filing deadlines – no EEO reports or Quarterly Issues Programs lists, no Children’s Television Programming Reports or noncommercial station ownership report deadlines. But, as with any month, that does not mean that there are no dates of concern for broadcasters – as there are certain compliance deadlines and other important dates of which broadcasters need to be aware in the upcoming month. Here is our summary of some of the dates that broadcasters should be watching in the upcoming month.

The only thing approaching a routine regulatory date of note is the obligation of TV stations in Delaware and Pennsylvania to air the third and fourth of their required six post-filing announcements of the filing of their renewal applications – the last of the renewal applications for either radio or TV that were filed in this renewal cycle. The next routine license renewal filing window will be when radio renewals being again in June of 2019 – with the filing of radio license renewals by stations in Maryland, Virginia, West Virginia and DC. However, as we have written before, EEO Mid-Term reports are due from larger radio station groups in these 3 states and in DC on June 1 of this year. So radio station employment units (commonly controlled station groups serving the same area and having at least one common employee) with 11 or more full-time (30 hours per week) employees should be preparing to file those reports on FCC Form 397 by June 1.
Continue Reading May Regulatory Dates for Broadcasters – Including EEO Mid-Term Reports, FM Auction, Emergency Communications Compliance, TV Market Modification Comments, Class A TV Digital Conversion Deadline and More

The FCC has extended the Reply Comment deadline in its proceeding looking at whether to apply some or all of the regulations applicable to multichannel video programming distributors (MVPDs – cable and satellite TV) to over-the-top video providers who provide multiple channels of video programming in a linear fashion (i.e. like a cable system, with…

The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16…

The FCC yesterday released a public notice extending the comment dates in their proceeding to regulate Online (or “over-the-top”) Video, particularly Internet video providers who provide multiple channels of linear video programming (programming streamed at the same time to all viewers, as opposed to on-demand video like that provided by Netflix or Amazon), in the …