Programming Regulations

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It is not every year that the FCC seriously asks broadcasters for suggestions as to what rules it should abolish or modify, but that is exactly what the FCC is doing in its Modernization of Media Regulation proceeding (about which we wrote here and here). Comments due the week after next, on July 5, and broadcasters should accept the invitation and suggest rules that are ripe for repeal or amendment. I recently spoke at the Wisconsin Broadcasters Association’s annual convention and the broadcaster who chaired the association’s Federal legislative committee urged all broadcasters in attendance to register their ideas for reforms. That comment made me realize that many broadcasters may not be taking this invitation seriously.

The number of changes already made in broadcast regulations in the less than 6 months that Chairman Pai has headed the agency (e.g. reinstating the UHF discount, abolishing the requirements for letters from the public in the public file, allowing online recruitment to be the sole means of EEO wide dissemination of job openings, relaxing the location restrictions on FM translators for AM stations, relaxing the limitations on noncommercial fundraising, abolishing the obligation for noncommercial stations to report the social security numbers of their board members, the rescission of FCC enforcement actions for political violations, and the revocation of a policy statement against shared services agreements) demonstrate that this Commission is serious about deregulation. There has perhaps never been as real an opportunity as now to make your voice heard about the broadcast rules that should be relaxed as part of this proceeding. What rules should be examined by the FCC?
Continue Reading Modernization of Media Regulation – What Rule Changes Should Broadcasters be Requesting?

Last week, the FCC issued a consent decree entered into with a broadcaster who is the licensee of multiple radio stations, many of which were silent for long periods during the last license renewal cycle. As part of the deal, in order to get renewals for 12 stations granted, the licensee agreed to either…

As expected, at its monthly open meeting yesterday, the FCC started two proceedings of particular importance to broadcasters. The first looks at the abolition of the main studio rules. The second asks for comments on all of the other rules affecting broadcasters and other media companies to see which are ripe for appeal. For the most part, the proposals as adopted mirrored the draft orders released for public review back at the end of April, which we summarized here.

The proposal to review all media rules – referred to as the Modernization of Media Regulation – will look at all media-related FCC rules with the idea of eliminating or modifying those that no longer make sense in the modern media environment. Only the multiple ownership rules, already under review in separate proceedings (see our posts here, here and here) are excluded from this review. Comment dates for proposals to change specific rules are due by July 5, with replies due August 4. The two Republican commissioners supported this proposal. Commissioner Clyburn, the FCC’s lone Democrat, dissented from the adoption of the Public Notice launching the inquiry, not necessarily because she is opposed to review of existing rules, but because she felt that the notice presupposes that the public interest can only be achieved by abolishing rules that limit industry operations. She suggests that many FCC rules remain important – including EEO rules, Biennial Ownership Reports, and certain rules governing access to cable programming. The Republican commissioners, on the other hand, point to the efficiencies that can be gained by abolishing rules that no longer make sense, or which require filings that serve no particular purpose (see Commissioner O’Rielly’s statement here). No doubt, these differing perceptions of the rules will be reflected in comments filed by various parties in this proceeding.
Continue Reading FCC Officially Starts Proceedings to Abolish Main Studio Rule and Review All Other Broadcast Rules

With April Fools’ Day only a few days away, we need to play our role as attorneys and ruin the fun by repeating our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.  The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  Air a program that fits within this definition and causes a public harm, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from responding to real emergencies.  In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 
Continue Reading Plan Your April Fools’ Day On-Air Pranks with the FCC in Mind

April has many important dates for broadcasters – both radio and TV.  This includes both regular regulatory obligations and dates unique to this April for both radio and TV – including the release of the FCC’s Closing Notice for the TV incentive auction and the effective date for the new rules liberalizing the location of FM translators used to rebroadcast AM stations.

The regular dates include the requirement for commercial and noncommercial full-power and Class A Television Stations and AM and FM Radio Stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas that they, by April 1, add to their public file (and upload to their websites for stations that have not yet converted to the FCC’s online public file) their Annual EEO Public File Report if the station is part of an Employment Unit with 5 or more full-time employees.  For Radio Stations in Texas which are part of an employment unit with 11 or more full-time employees; and for Television Employment Units with five or more full-time employees in Indiana, Kentucky, and Tennessee, by April 3 (as April 1 is on the weekend), these stations must file with the FCC their EEO Mid-Term Reports (see our summary of this requirement here).  The Mid-Term Report includes the last two EEO public file reports for these stations and other information about the station’s EEO program. 
Continue Reading April Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction Closing Notice, AM Translator Site Relocation Relaxation Effective Date

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.
Continue Reading What’s Up for Broadcasters in Washington Under the New Administration – A Look Ahead at TV and Radio FCC Issues for the Rest of 2017

The FCC on Tuesday voted to abolish the 44 year old requirement that commercial broadcast stations retain, in their public file, letters (and emails) from the public dealing with station operations (see the full Order here). As noted by the Commissioners in their comments at the FCC meeting (and as we suggested here and here when this proposal was first introduced), these documents were rarely if ever accessed by the public. Mirroring our comments from last year, the Commission noted that, in today’s world, where social media is where so many people take to comment on each broadcaster’s every action, and where the comments are open to all and preserved for posterity, the requirement for the retention of letters in a paper public file was felt to be no longer necessary. Plus, with the rest of the public file either already online or soon to go online when the last radio stations convert to the FCC-mandated online public file next year (see our articles here and here), the elimination of this requirement allows stations to have more security at the main studios as people can’t just show up unannounced to view the file, as required under the current rules.  Note that this will change the rules only for commercial stations – noncommercial stations have never had the obligation to include letters from the public in their public inspection files.

Much of this was expected in light of the new deregulatory bent of the Commission. About the only issue that had not previously been highlighted was the associated elimination of the requirement for TV stations that they report letters from the public about violent programming in their license renewal applications. The statute requiring the disclosure of these letters applied only to letters which the FCC rules required to be retained by the station. As the FCC will no longer require those letters be retained, the FCC found that the need to report letters about violent programming was now moot – and instructed the Media Bureau to delete the requirement from the license renewal forms. Because the reporting requirement lacked any real purpose, since the FCC has never sanctioned a broadcaster for violent programming and likely has no jurisdiction to restrict such programming, the abolition seems to be nothing more than the elimination of an unnecessary paperwork burden on broadcasters.
Continue Reading FCC Votes to Abolish Requirement for Retaining Letters From the Public on Station Operations – First Step in Broadcast Deregulation?

Here we are at the start of a new year, and right away we have numerous regulatory deadlines for broadcasters. By the 10th of the month, all broadcast stations need to have placed in their public inspection files (online for TV and for those radio stations that have already converted to the online public file, and paper for the remaining radio stations), their Quarterly Issues Programs lists, documenting the issues of importance to their communities and the programs broadcast in the last quarter addressing those issues. TV stations have quarterly Children’s Television Reports due to be filed at the FCC by the 10th, addressing the programming that they broadcast to meet the educational and informational needs of children. Commercial TV stations should also add to their public file documentation to demonstrate their compliance with the commercial limits in programming addressed to children.

For TV stations, on the 1st of the year, new obligations became effective for online captioning. “Montages” of clips from TV programs, where all of those clips were captioned when broadcast, also need to be captioned when made available online. By July 1, clips of live and near-live programming must be captioned; however, they may be posted online initially without captions as long as captions are added to clips of live programming within 12 hours and to clips of near-live programming within eight hours after the conclusion of the TV showing of the full-length programming. For more on this requirement, see our article here.
Continue Reading January Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Ownership and EEO Comments, Copyright Issues and More

It’s the holiday season, and many of us are turning our thoughts to celebrating with friends and family. It is also high season for shopping, which means the airwaves, social media, websites and print pages are full of opportunities to buy, sell, and advertise. Whether you consider that to be a feature or a bug,…

Last week, the full FCC issued a decision upholding the license renewal grant of a Pacifica-owned radio station in New York. A listener was complaining that the station broadcast favorable statements about an individual who had shot a police officer. The FCC first noted that the listener had not provided details of the statement, but further stated that the FCC is not allowed to censor the content selected by broadcasters to air on their stations. Specifically, the FCC said: “A licensee has broad discretion — based on its right to free speech7 — to choose, in good faith, the programming it believes serves the needs and interests of its community of license.” The FCC is bound by the First Amendment to not judge the subject-matter content of what broadcasters broadcast. Instead, it regulates structurally, in a content-neutral manner through rules like the multiple ownership requirements, to avoid second-guessing the decisions of broadcasters as to what is said on the air.

The interplay between the First Amendment and FCC rules has been the seen in the handling of many issues by the FCC. We’ve written about it in the context of the abolition of the Fairness Doctrine, and when the FCC in 2014 officially abolished the last vestige of that doctrine – the Zapple Doctrine. We’ve also written (here and here) about that in connection with calls for the FCC to ban attack ads which can sometimes make over-the-top claims about political candidates – the truth or falsity of which broadcasters are sometimes required to determine when the attacked candidate challenges those ads and threatens to sue the station that is running them. Why doesn’t the FCC make those determinations? Because we don’t want the government deciding what can and cannot be run on the air. There are of course libel laws that can be used to crack down on false statements – even those in political ads – but standards for finding liability against public officials and other public figures are set high to block those laws from being used to suppress valuable debate on the issues (see our article here ).
Continue Reading License Renewal Shows FCC Does Not Regulate Content – Implications for Calls to Regulate Fake News?