Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant

The requirement that television broadcasters and MVPDs (including cable and satellite television providers) negotiate in good faith over the provisions of retransmission consent agreements is often cited in arguments by one side or the other when negotiations over the fees to be paid under those agreements break down.  In a consent decree released last week, the FCC showed that the requirement is more than just a few words in the statutes and rules governing these negotiations, reaching an agreement with TV licensee Howard Stirk Holdings, LLC to pay a penalty of $100,000 for violations of those requirements and to also adopt a compliance plan setting up internal corporate controls to ensure that similar violations do not occur in the future.

The consent decree was based on violations described in a decision of the FCC’s Media Bureau released last November (here) finding that 18 television station licensees, operating stations in separate markets, had failed to negotiate retransmission consent in good faith.    The Stirk company and the other stations covered by the November decision had used a single negotiating agent who the Bureau found failed to comply with three of the Commission’s nine “per se” good faith negotiating standards set out in Section 76.65(b)(1) of the Commission’s rules.  Specifically, the Bureau found that the stations had not operated in good faith based on these perceived violations: (1)  refusal to negotiate retransmission consent agreements; (2) refusal to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations; and (3) failure to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal.
Continue Reading $100,000 Penalty in Consent Decree Shows Teeth in Requirement for Good Faith Negotiation of Retransmission Consent Agreements

Last week, we started this feature of Here are some of the Washington actions of importance to broadcasters – at the FCC and elsewhere – which occurred in the last week, with links to where you can go to find more information as to how this may affect your operations.

  • The comment period ended in

During most months, FCC procedures, rules and regulations, with their mostly predictable schedules and deadlines, give broadcasters a feeling of routine.  In this time of stay-at-home orders, social distancing measures, and face-mask wearing, even FCC deadlines cannot provide the semblance of normality we are all looking for.  In fact, May is one of those months where there are no regularly scheduled regulatory filings (e.g., no renewals, EEO reports, fee filings, or scheduled public file disclosures).  Nevertheless, as always, there are a number of important regulatory dates—and changes in some dates—for May of which broadcasters should be aware.

The radio license renewal process continues its march across the country, and the renewal cycle for television begins with the required filing by June 1 of license renewals by full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia.  Those stations should be working on their renewals in May, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s recent announcement of the procedures for filing TV renewal applications.
Continue Reading May Regulatory Dates for Broadcasters – License Renewal Preparations, FCC Meeting, and Comments on the Communications Marketplace, Significant Viewing and FM Zonecasting

This week, the FCC’s Notice of Proposed Rulemaking on Significant Viewing was published in the Federal Register, setting a comment deadline of May 14, with reply comments due by June 15.  The NPRM asks for comments as to whether the FCC should update its rules for establishing whether or not a TV station is “significantly viewed” in a market other than the one in which it is located, and whether the FCC has the statutory authority to make changes to these rules that have largely been in effect since 1972.

A determination of significantly viewed status is important for determining whether a cable system or satellite television company will carry a TV station in areas that are not part of its home market.  For FCC purposes, significantly viewed stations generally are not subject to the network nonduplication and syndicated exclusivity protections provided to home market stations – meaning that their programming that duplicates that of a local station need not be blacked out by the MVPD at the request of the local station that has the rights to such programming in that market.  For copyright purposes, if a station has significantly viewed status, the MVPD pays at the low rates applicable to a local station pays for the compulsory copyright license needed to carry all of the programming of a television station.  If the station is not significantly viewed, the much higher “distant signal” rate applies, giving the MVPD far less incentive to carry such stations.
Continue Reading Comment Dates Set on Possible Revision to Rules on Significantly Viewed Television Stations for MVPD Carriage Purposes – What Is Being Asked?

FCC business marches on in this time of social distancing and mandatory lockdowns, though with modifications caused by the circumstances in which we find ourselves.  The FCC released a Public Notice yesterday announcing that its monthly open meeting scheduled for March 31 will be held by teleconference rather than live in the FCC meeting room.  It can be viewed on the FCC’s website and on its YouTube channel.  Most of the action items will have already been voted on by the Commissioners through the “circulation” process.  This means that the votes will be taken on the written orders without any formal presentations by FCC staff members explaining the actions, and without orally-delivered statements by any of the Commissioners – though the Commissioners can certainly make their feelings known in written statements on the items on which they will have voted.  The meeting itself is likely to consist of Commission announcements and statements by the Commissioners on the current state of affairs.

Issues that were to be considered at the meeting of interest to broadcasters include the adoption of a Notice of Proposed Rulemaking on Distributed Transmission System technology for TV stations – making it easier for TV stations to fill in their market coverage with multiple transmitters spread throughout the market, rather than a single big transmitter in the center of the market – a technology made easier as stations transition to the new ATSC 3.0 transmission system (see the draft NPRM here).  FCC Notices of Proposed Rulemaking on significantly viewed TV stations (draft NPRM here) and cable carriage disputes (draft Further Notice of Proposed Rulemaking here) are also on the agenda.
Continue Reading FCC Activity in the Time of COVID-19 – Commission Meeting to be Held Virtually, Commissioner O’Rielly Nominated for New Term

Notifications about cable carriage have now gone electronic – and contact people at stations and MVPDs for notices about carriage issues are now to be provided in the FCC-hosted online public inspection file and in the Cable Operations and Licensing System (COALS).  According to an FCC Public Notice released last week, in those databases

The FCC yesterday released a Public Notice calling for public comment on the state of the communications marketplace so that it can prepare a report to Congress – a report that is required every even-numbered year.  The Notice calls for comments on the state of competition in various sectors of the communications industry – including for audio and video.  The inclusion of audio in this report is relatively new – being included for the first time two years ago (see our article here).  Comments in this proceeding are due on April 13, with replies due May 13.

The Audio Competition Report prepared two years ago was very important in informing the FCC as to the state of competition in that segment of the market.  Comments filed with the Commission on the report were incorporated in the record of the FCC’s Quadrennial Review Notice of Proposed Rulemaking which entertained the possibility of changes in the ownership rules for broadcast radio in light of the substantial competition that comes from digital audio sources (see our article here on the Quadrennial Review NPRM).  Whether this year’s report will be as crucial is unknown, as the Third Circuit Court of Appeals decision on the FCC’s 2017 ownership rule changes have, for now, put all broadcast ownership changes on hold while the FCC (and the Department of Justice) decide whether to appeal that case to the Supreme Court or to attempt to answer the Third Circuit’s concerns that the FCC had not sufficiently addressed the impact of changes in its ownership rules on minority ownership (see our articles here and here).  While these decisions are being made, it appears that all ownership changes are on hold.
Continue Reading FCC Seeks Comments on the State of the Communications Marketplace – Including for Audio and Video

In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided

Just before Labor Day, the FCC published in the Federal Register the new rules regarding notice of Must Carry and Retransmission Consent elections. Those rules, as we summarized in more detail here, provide that, before the next election cycle deadline on October 1, 2020, TV stations need to provide notice in their online