It’s a new year, and a good time to reflect on where all the Washington issues for TV broadcasters stand at the moment, especially given the rapid pace of change since the new administration took over just about a year ago. While we try on this Blog to write about many of the DC issues

Yesterday, the President reportedly used the word “shithole” to describe certain countries whose immigrants were seemingly less favored than others. This predictably caused outrage in many quarters – and left the electronic media, especially broadcast TV in a quandary. Do they broadcast the purportedly used term, or do they use some euphemism so that “shit,”

Several articles published at the end of last week suggested that the FCC, based on a statement by FCC Chairman Pai on a radio show, would be investigating comments made by Stephen Colbert on a program last week. The comments, suggesting a sexual act between President Trump and Vladimir Putin, has raised much controversy and apparently resulted in the filing of a number of complaints at the FCC. However, just because the statement was controversial does not mean that the FCC has any jurisdiction to do anything about it consistent with its precedent and constitutional protections which governs speech generally. The Chairman’s statement was no doubt nothing more than an acknowledgement that the FCC would deal with complaints that were filed, rather than any implication that there was likely to be any penalty for the statements of the TV host. Why?

The Colbert Show starts at 11:30 PM on the east and west coasts. Even in the rest of the country where it runs earlier, it begins at 10:30. Under the FCC’s policy on indecency, programs airing after 10 PM and before 6 AM are considered to be in the “safe harbor” where children are unlikely to be in the audience, so indecent programming – programming that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium” – is not prohibited. In other words, during these overnight hours, stations can run material that is sexually oriented and which would normally not be acceptable on television – allowing more adult oriented content to run even on broadcast stations. As the Colbert program ran during this safe harbor, the FCC’s indecency rules would not apply. But what about obscenity?
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A new President and a new Chair of the FCC have already demonstrated that change is in the air in Washington. Already we’ve seen Chairman Pai lead the FCC to abolish the requirement that broadcasters maintain letters from the public about station operations in their public file (which will take effect once the Paperwork Reduction Act analysis is finalized), revoke the Media Bureau guidance that had limited Shared Services Agreements in connection with the sales of television stations, and rescind for further consideration FCC decisions about the reporting of those with attributable interests in noncommercial broadcast stations and the admonitions given to TV stations for violations of the obligation for reporting the issues discussed in, and sponsors of, political ads (see our article here). Also on the table for consideration next week are orders that have already been released for public review on expanding the use of FM translators for AM stations and proposing rules for the roll-out of the new ATSC 3.0 standard for television. Plus, the television incentive auction moves toward its conclusion in the repacking of the television spectrum to clear space for new wireless users. Plenty of action in just over 3 weeks.

But there are many other broadcast issues that are unresolved to one degree or another – and potentially new issues ready to be discussed by the FCC this year. We usually dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters earlier in the year, but we have waited this year to get a taste for the changes in store from the new administration. So we’ll try to look at the issues that are on the table in Washington that could affect broadcasters, and make some general assessments on the likelihood that they will be addressed this year. While we try to look ahead to identify the issues that are on the agenda of the FCC, there are always surprises as the regulators come up with issues that we did not anticipate. With this being the first year of a new administration that promises a different approach to regulation generally, what lies ahead is particularly hard to predict.
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A Washington Post article published this weekend was titled “Is there anything you can’t say on TV anymore? It’s complicated.” And, it really is. The Post article presents a very good overview on the status of the FCC’s indecency rules. What will happen with those rules has been a matter of conjecture for several years, ever since the Supreme Court threw out the fines that the FCC had imposed for fleeting expletives that had slipped out in the Golden Globes and other awards programs, a case that also had the effect of negating that other fine for a “slip,” the notorious Janet Jackson clothing malfunction during her Super Bowl performance. Other than a well-publicized $325,000 fine on a Roanoke TV station for a short but very explicit image that slipped into the corner of a news report on a porn star turned first responder (see our article here on the Roanoke case), the FCC has been largely quiet on the indecency front since it launched a post-Supreme court proceeding to determine how they should amend their rules in light of the Court’s decision (see our summary here).

As we wrote when comments were filed in that proceeding, it drew much attention, with many commenters fearing that the FCC would back away from all indecency regulation on broadcast TV. In an election year like this one, don’t expect in the near future to see any definitive answers as to what is indecent and what is not. Neither political party wants to be tagged with being pro-smut by one side of the political spectrum, or anti-First Amendment expression by the other. But the Post article raises other very interesting questions about the difference in legal treatment between cable and broadcast programming, especially when so many viewers hooked up to some cable or satellite service don’t really understand the difference between cable network programming and that from broadcast sources.
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It’s that time of the year when we need to dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters in 2016.  While we try to look ahead to identify the issues that are on the agenda of the FCC and other government agencies, there are always surprises as the regulators come up with issues that we did not anticipate. With this being an election year, issues may arise as regulators look to make a political point, or as Commissioners look to establish a legacy before the end of their terms in office.  And you can count on there being issues that arise that were unanticipated at the beginning of the year.

But, we’ll nevertheless give it a try – trying to guess the issues that we will likely be covering this year.  We’ll start today with issues likely to be considered by the FCC, and we’ll write later about issues that may arise on Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC.  While the TV incentive auction may well suck up much of the attention, especially in the first half of the year, there are many other issues to consider.  We’ll start below with issues affecting all stations, and then move on to TV and radio issues in separate sections below. 
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The FCC set a new record for a fine for a single violation of its indecency rules – $325,000 for a 3 second visual image of a penis run in a corner of a TV screen a single time on a TV station during its 6 PM news (a full description of the image is in the FCC’s Notice of Apparent Liability but, so as to not trigger too many spam filters, I will omit any more details in this article). The image in the newscast was a visual of a website, the website having several different frames, each with video images, and one of those frames had the image that led to the fine. This is the first time that the FCC has imposed a fine of $325,000, an amount authorized by Congress during the FCC’s last crackdown on indecency but never before used by the FCC. And not only did the FCC issue the Notice of Apparent Liability describing its legal reasoning for imposing the fine, but they also put out a press release publicizing the Notice, highlighting other recent indecency actions taken by the FCC, and warning broadcasters to pay attention to the decision. What happened here?

According to the FCC’s order, a TV station did a story on a former adult movie star who had retired from her former profession and begun to work with the local rescue squad. In providing background to what might otherwise be an off-beat human interest story about a person with a colorful past adapting to a new life as part of a local community, to provide context, the station showed the website of the adult movie company for which she had formerly worked. In editing the brief clip of the website into the story, neither the independent producer who put the story together nor anyone at the station noted the visual in one corner of the webpage with the image that got the station into trouble. According to the station, the image was not viewable on the editing machines used by those producing the story. But, apparently viewers at home, perhaps watching on bigger screens, were able to see the image, prompting the FCC complaint and other complaints to the station. While the image appeared on screen for only about 3 seconds, and only once, the FCC nevertheless selected this case to be its first in which to levy this new level of indecency fine – ten times higher than previous fines for a single broadcast of indecent material on a single station. Why?
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Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
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