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The FCC proposed that a noncommercial broadcaster be fined $10,000 for its failure to allow a visitor unquestioned and immediate access to the public inspection files for 6 noncommercial radio stations operated from the same main studio. Though the delay in allowing access was only a few hours long, that delay, together with questions asked of the person who requested access as to his reasons for the inspections, led to the Notice of Apparent Liability issued by the FCC. In the decision, the Commission reminded all broadcasters that their obligation is to make the file available immediately upon a request made during normal business hours. The person inspecting the file cannot be asked why they want to see the file, or for their business or professional affiliation.

In this case, an individual apparently representing a competing broadcaster showed up at the station at about 10:30 in the morning. While it was disputed as to whether the individual immediately asked the receptionist to see the public file,  or whether he simply asked to talk to the general manager of the station, the Commission found that both parties agreed that, when the general manager was reached by phone, the individual did ask to see the file. The general manager did not immediately tell his staff to allow inspection of the file, instead telling the visitor that the manager would return to the office at about noon, and the file could be seen then. It was that delay – putting the visitor off for a few hours- that the Commission found was sufficient to trigger the violation. In the decision, the FCC went further to make this case instructive for broadcasters by laying out some of the specifics of the obligations of a broadcaster to allow access to its public file.Continue Reading Noncommercial Radio Operator Fined $10,000 for Not Providing Immediate Access to Public File – FCC Provides A Good Primer on the Public File Rules for All Radio Broadcasters

April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children’s television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station’s public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC’s proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1. Continue Reading April FCC Obligations for Broadcasters – Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership

In the digital world, it seems that everything is reinvented, and someone claims that they have a patent on that reinvention. In the last few weeks, we have seen news about patent claims asserted against radio broadcasters for their digital music storage systems, against public broadcasters for podcasts, and even against companies trying to comply with the FCC’s new guidelines for E-911 (emergency communications over wireless and VoIP networks) providers. These claims highlight that media companies and others in the communications industry have to be prepared for patent litigation almost as a cost of doing business – and need to consult with patent lawyers about strategies if they are faced with such claims, and consider the potential of concerted defenses with others similarly situated if the defense does not violate other laws (such as the antitrust laws). What claims have been raised recently?

Over the last two years, thousands of radio stations across the country have received letters claiming that their digital music storage systems violated a patent from a company called Mission Abstract Data. While the patents in question have a checkered history at the Patent Office – after being issued, they were reexamined and their basis questioned, with the Patent Office ultimately agreeing that the patents, as limited through the reexamination, were in fact valid. But that decision was itself challenged by equipment manufacturers whose music systems could infringe on the patent. That further reexamination is still underway.  Nevertheless, as that reexamination continues, the company that currently has rights to the patent, Digimedia, has sued four radio station owners in Texas claiming that they are violating these patents controlled by the company. These suits are in addition to a long-pending case against a number of large broadcasters, which has been stayed pending the outcome of the Patent Office reexamination (though the patent holder has asked that the stay be lifted – an argument to be considered later this month). Some observers have suggested that these new suits may be a precursor to other actions to try to convince reluctant broadcasters to take out a license rather than fight a lawsuit.Continue Reading More Patent Issues for Media Companies – Mission Abstract Data Patent Asserted in Law Suits Against 4 Radio Broadcasters, and a New Patent Claim Raised Against Podcasters, Including Public Broadcasters

The FCC this week released a Public Notice announcing comment deadlines on rulemaking proposals relating to the FCC Biennial Ownership Reports. The first set of proposals deals with a Notice of Proposed Rulemaking issued earlier this month, proposing a series of changes to the process for filing these reports. The proposals include a requirement that the all persons with attributable interests in broadcast stations get a unique FCC Registration Number (an "FRN"), which will require filing their Social Security numbers with the FCC. The second proceeding is one released in 2009, but is only now being published in the Federal Register triggering the comment deadline. This proposal suggests that certain nonattributable owners be identified and reported on these Biennial Ownership Reports despite their nonattributable status. Comments on these proposals will be due on February 14, 2013, with reply comments due on March 1, 2013.

The Biennial Ownership report, in its current form, was initially adopted in 2009.  The new reports were to gather information not just about the ownership of broadcasters, but also about their race, ethnicity and gender, so that the FCC could get a better handle on the presence of minority owners in broadcasting.  The first report on the new form was to be filed in November 2009, but that deadline was pushed back to July 2010 when issues with the new form developed.  The second Biennial Ownership report was to have been filed by commercial stations in late 2011 (two years after the original date), and the next is due later this year.  The information in the first two reports was compiled into the information that formed the basis of the FCC’s December request for comments on the impact of proposed changes in the multiple ownership rules on minority ownership. Continue Reading FCC Seeks Comments on Biennial Ownership Report – Seeking Social Security Numbers From All Attributable Owners – and Some Who Are Not

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act’s prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing…

Hurricane Sandy (or "Superstorm Sandy as it now seems to be called) has resulted in an outpouring of support from broadcasters across the nation, looking for ways to raise funds for those that have been affected by the storm and its aftermath. Noncommercial broadcasters who are interested in joining in the fundraising efforts were aided by…

October is a very important month in the regulatory world, and broadcasters need to be aware of the regulatory deadlines that have already arisen this month, or which will come up in the next few days. This week, TV Newscheck published our latest summary of the state of many of the most significant legal issues facing TV broadcasters at the FCC and in Congress. In looking at the list, it is clear that this month is particularly important for broadcasters. For instance, this is the month that most TV stations outside of the Top 50 markets will first have to deal with the online public file – having to post their Quarterly Issues Programs Lists and Children’s Television reports on their sites. The FCC this week issued a Public Notice of increased functionality of the online public file, partially to handle these obligations. Of course, radio stations also need to have their Quarterly Issues Programs Lists in their paper public file this week – as the lack of these lists is source of many of the fines that are issued during the license renewal process.

Also this month is the start of the obligation for Internet captioning of any programming that had previously aired with captions on TV. The obligation applies to any full TV program that was captioned when broadcast over-the-air after September 30 and is then posted in full on the Internet. The FCC just issued a reminder about this obligation, emphasizing its importance.Continue Reading Early October Regulatory Requirements – Quarterly Issues Programs Lists, Children’s TV Reports, Captioning of Internet Programs, Noncommercial Ownership Reports, EEO and Renewal Obligations

The FCC has adopted a Notice of Proposed Rulemaking suggesting, with significant limitations, a liberalization of its rules that prohibit noncommercial broadcasters from raising funds for an entity other than the station itself if the fundraising suspends or alters normal programming of the station. As we’ve written before, the FCC prohibits noncommercial broadcasters from raising funds for charities and other non-profit organizations through telethons or other special programming.  The prohibition has been in place for some time, and was reaffirmed by the FCC’s orders in the early 1980s which established the basic rules that still today govern most noncommercial fundraising and sales activities. 

The prohibition on third-party fundraising reflected the Commission’s concern that educational stations are "licensed to provide a noncommercial broadcast service, not to serve as a fund-raising operation for other entities by broadcasting material that is akin to regular advertising."  Doing too much fundraising for these third parties, in the Commission’s view when the rule was adopted, would distract stations from their principal mission of service to the public.   While the Communications Act was changed in the early 1980s to allow noncommercial broadcasters to accept paid promotional spots for nonprofit groups, the FCC did not change the rule on third-party fundraising that disrupts normal programming.  In the NPRM just adopted, the Commission recites that they still believe the justification for the rule to be true, even though noncommercial stations can now run what is essentially paid advertising for nonprofit organizations, as long as those spots are incorporated into the normal programming of the stations. What the Commission now proposes is a limited degree of liberalization of the third-party fundraising prohibition, subject to many conditions set forth below.Continue Reading FCC Proposes to Liberalize Rules Against Noncommercial Stations Fundraising For Third-Party Non-Profit Groups

The Communications Act’s ban on noncommercial broadcast stations running political and issue advertising was struck down as unconstitutional by the US Court of Appeals for the Ninth Circuit.  While the Court upheld the prohibition on commercial advertising for products and services, the majority of the Court felt that the ban on political advertising could not be justified.  Bob Corn-Revere of Davis Wright Tremaine’s DC office, who is quite experienced in First Amendment litigation and is a frequent speaker and author on these issues, offers this summary of the constitutional issues raised by this case:

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A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment.  The court left intact another provision that prohibits commercial advertising on public stations.  The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored.  At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.

Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.”  The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.”  The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations.  Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires.  That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.Continue Reading Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations – Analyzing the Issues

Three broadcast items are tentatively scheduled for the next FCC meeting, to be held on April 27, according to the tentative agenda released today.  In one expected action, though perhaps moving more quickly than many thought possible, the FCC has indicated that it will adopt an Order in its proceeding requiring TV broadcasters to place and maintain their public files on the Internet.  A second broadcast item will adopt rules for channel sharing by TV broadcasters as part of the plan for incentive auctions to entice TV broadcasters to give up some of their spectrum for wireless broadband use.  Finally, the FCC proposes to adopt a NPRM on whether to amend current policies so as to permit noncommercial broadcasters from interrupting their regular programming to raise funds for organizations other than the station itself.

The first item is to determine whether to require that the broadcasters maintain an Online Public Inspection File, is a controversial issue about which we wrote last week. The proposal for the online file grew out of the FCC’s Future of Media Report (renamed the Report on the Information Needs of Communities when it was released last year, see our summary here).  In that same report, it was suggested that the FCC relax rules applicable to noncommercial broadcasters that limit their on-air fundraising for third-parties, if that fundraising interrupts the normal course of programming.  The Future of Media Report suggests that this restriction be relaxed so that noncommercial broadcasters be able to do block programming from time to time to raise funds for other noncommercial entitiesContinue Reading On the Schedule for the April 27 FCC Meeting: Television Public Interest Obligations, TV Channel Sharing and Third-Party Fundraising by Noncommercial Broadcasters