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In several recent cases, the FCC has denied exemptions from the requirement that programming carried on TV stations and MVPDs have closed captions to serve the hearing impaired members of the viewing audience. While exemptions from these requirements are allowed if a programmer can demonstrate that the captioning would present an economic hardship, these waivers are difficult to receive as a programmer must show that, looking at its overall operations, there are insufficient financial resources to afford the captioning for the program (see our article here). In the recent cases, the FCC has looked beyond simply the net income of the programmer in deciding if the programmer is financially capable of paying for the captioning, and in cases released yesterday, the FCC also looked at the overall assets of the programmer to see if it has the capacity to caption the program. Even if funds must be diverted from other programs of the programmer, the availability of funds to the programming organization was enough for the FCC to deny the requested exemption. Specifically, in the three recent cases, religious organizations which produced a single program claimed that, in order to caption their programs, they would have to divert resources from other programs. The FCC found that, as long as the money is there, the programs need to be captioned even if other activities of the organization suffer.

The FCC made that clear in a case decided a few weeks ago. There, it decided that, if a church had sufficient income to pay for captioning, even if it had to divert resources from other “ministries” engaged in by the church, it could not escape the obligation to caption its program. That case was relied on in another decision released yesterday, where a religious organization had been operating at a close to break-even mark over the two years for which it provided its finances, as the FCC said that it had sufficient assets to pay for the captioning – not relying solely on the income of the organization. In another case involving a larger church with greater income and expenses (which were also roughly in balance in the last two years according to the financial statements provided), the FCC there too looked to the current assets of the church (including investments in securities, bank deposits and pledges receivable). The fact that these assets were significantly in excess of current liabilities, led to a determination that captioning was financially feasible for this church. The FCC also rejected an argument that its rules placed an unconstitutional burden on religious freedom – finding that the burden was one imposed on all programmers and was not directed to religious programmers, and was therefore constitutional. So what does it take to get an exemption?
Continue Reading Church Programming Not Exempt From Captioning Requirements – FCC Looks to Total Assets of Programmer in Denying Economic Exemptions, and Decides There are No Religious Freedom Constitutional Issues

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

It looks like the dates for the FCC incentive auction (where some broadcasters will sell their spectrum to the FCC to be repackaged and resold to wireless companies for wireless broadband purposes) are becoming clear.  After this week’s delay of the consideration of the incentive auction items (see our article here), the drafts of…

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

The FCC was today supposed to be considering the adoption of a public notice that would specify the detailed procedures to be used in the incentive auction (see our articles here and here).  In the incentive auction, the FCC will buy the spectrum used by a number of TV stations, repack the remaining TV stations into a more compact TV band, and then resell the vacated spectrum to wireless companies for wireless broadband and other wireless uses.  However, yesterday, it was announced that the consideration of these matters would be delayed until the FCC’s August 6 meeting.

The details of the auction are incredibly complicated. In recent weeks, a number of proposals have been raised about the use of the “duplex gap” between the wireless frequencies to be used for the upload and the download of wireless communications, specifically including debates about whether TV stations that do not sell out in the auction, and don’t fit into the repacked TV band in congested markets, could end up in this band. If TV stations end up in the duplex gap, it would displace unlicensed spectrum users, including wireless microphone users, that were initially to use the spectrum and it could potentially create consumer reception issues for any TV stations that end up in this spectrum removed from the adjacent TV stations, where the spectrum would be used for TV in only a limited number of markets.
Continue Reading FCC Delays Consideration of TV Incentive Auction Procedures

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. Our latest update was published today, and provides a summary of the status of legal and regulatory issues…

Earlier this week, we wrote about the Court of Appeals decision denying appeals of the FCC’s 2014 order setting the framework for the incentive auction to reclaim spectrum used by TV stations and repurpose it for use by wireless companies to provide more high-speed wireless broadband opportunities. But, in addition to the appeals, there were also a number of petitions for reconsideration of the 2014 order. Those were also resolved in an FCC order released last month. Many of the issues considered concerned technical matters as to how the new wireless spectrum would be allocated and sold after it is acquired from the broadcasters. But the order also resolved a number of issues of specific importance to broadcasters, some of which could potentially result in another appeal of the 2014 order to the Court of Appeals.

Initially, in its reconsideration order, the FCC refused to reconsider the modifications to the OET-69 standard for determining interference between television stations as that issue was before the Court of Appeals in the appeal filed by Sinclair and the NAB – the appeal that was denied by the FCC the week before this order was released. The use of the TVStudy updates to the inputs to the OET-69 have again been in the news this week, as the FCC released new population counts for each auction-eligible station as computed by using this information, and asked for comment on this information by July 30. The population served by a TV station is a very important input into how much a station would receive to surrender its spectrum in the incentive auction (just how important that input will be is an issue to be addressed at the FCC meeting next week). The FCC request for comments is here, and the table showing the FCC’s prediction of the population served by each auction-eligible TV station is here. This updated information has already proved to be controversial, with one association representing probable auction participants suggesting that the recomputation of a NY TV station that will set the highest opening offer to buy out the spectrum of any TV station, and from which the offers to other lesser valued stations will be derived, could have the impact of lessening initial buyout offers to other broadcasters (see the blog post here).
Continue Reading TV Incentive Auction Moves Forward – The FCC Denies Reconsideration of Auction Framework, Asks for Comments on TVStudy Predictions of Station Coverage to be used in Determining Station Values