Programming Regulations

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Late Tuesday night, in a meeting originally scheduled to start at 9:30 in the morning, the FCC adopted an order establishing the rules governing the carriage of broadcast signals by cable operators after the February 17, 2009 transition to digital television.  While the full text of the Commission’s action has not yet been released (and may not be released for quite some time), based on the FCC’s formal news release and the statements made by the commissioners at the meeting and in their accompanying press releases, we can provide the following summary of these important FCC actions.

First, for a period of at least three years after the February 17, 2009 transition from analog to digital broadcasting, cable operators will be required to make the signals of local broadcast stations available to all of their subscribers by either:  (1) carrying the television station’s digital signal in an analog format, or (2) carrying the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content.  This rule reflects a compromise position offered by the National Cable & Telecommunications Association, and is regarded as less burdensome on cable systems then the FCC’s original proposal of an indefinite analog carriage obligation. 

Second, the FCC reaffirmed its existing requirement that cable systems must carry High Definition (HD) broadcast signals in HD format, and further that it must carry signals with “no material degradation”, i.e., with picture quality as good as any other programming carried by the operator.  In affirming its "no material degradation" standard, the FCC rejected a proposal by the broadcast industry that would have required operators to pass-through all of the bits in digital television broadcast signal.Continue Reading FCC Adopts Post-Digital Transition “Must-Carry” Rules, Extends Ban on Exclusive Programming Contracts, and Opens Inquiry Into “Tying” Agreements

The FCC recently issued a Public Notice reminding television broadcasters of the requirement that, after January 1, 2008, television stations (as well as cable and satellite television systems) must, in each calender quarter, close caption at least 75% of their Pre-Rule Programming.  Pre-Rule Programming is that programming first broadcast or exhibited prior to 1998 for…

If you are a broadcaster, you know that it’s not going to be a good day when you walk into a hearing on the possible extension of the performance royalty in sound recordings to over-the-air broadcasters and see buttons saying "I Support a Performance Right NOW" on the lapels of every other witness on the panel – including the Register of Copyrights, Marybeth Peters.  But that was the scene in Washington, as the House Judiciary Committee’s subcommittee on Courts, the Internet and Intellectual Property held a hearing as to whether the right to collect a royalty for the public performance of a sound recording (the actual song as sung by a particular artist, as opposed to the underlying musical composition) should be paid by broadcasters.  Broadcasters in the United States have paid only a royalty on the public performance of the composition (to ASCAP, BMI and SESAC), and have never paid a royalty for the public performance of the sound recording.  The lack of a sound recording royalty has always been justified in the past on the theory that the artists and copyright holders in the sound recording benefit more than composers through the airplay of the sound recording, as they receive the bulk of the proceeds from CD sales, and the performers benefit from the promotion of live performances.  As they benefit from the promotion provided by the airplay of the song, there is no need for any sort of performance royalty.  As the music and radio businesses have both thrived in the United States – more so than anywhere else in the world – it seemed that this arrangement was mutually beneficial.

But, in recent years, the consensus over this mutually beneficial arrangement seems to have broken down.  Starting in 1995, a performance right in sound recordings has been imposed on digital services, including the royalty on Internet radio which has recently been so controversial (and about which we have written so much, here).  And, with the recent downturn in the record companies’ business, additional sources of revenue are being sought – thus the RIAA and SoundExchange, the collective that receives sound recording performance royalties, have started a Congressional push to require the collection of royalties from over-the-air radio.  And that push was reflected in the hearing held on Tuesday before a House Committee that seemed clearly to favor the imposition of this royalty on broadcasters.Continue Reading House Judiciary Committee Hearing on Broadcast Performance Right – No Breaks for the Broadcasters

In the broadcast world, if you stick around long enough, what was once big and then faded away will no doubt come around once again.  Whether its the resurrection of prime time games shows that faded in the 50s to become big again today, or the regulatory landscape – it all comes around again.  In comments made to an oversight hearing of the US House of Representatives yesterday, Chairman Martin stated that there is an item circulating through the FCC proposing to require that broadcasters file in their license renewal applications more detailed information about the types of public interest programming they provide.   Until the mid-1980s, broadcasters had to specify the percentage of their programming that was comprised of news, public affairs and "other" public interest programming, as well as the number of public service announcements that the station broadcast.  These specific requirements disappeared in the "deregulation" of the 1980s, but from the statements made yesterday, they may now be making a return if Chairman Martin and the Democratic Commissioners can agree on a set of rules to be imposed on broadcasters.

We’ve written about various proposals to require specific, quantifiable public interest obligations of broadcasters in the context of the recent digital radio order.  We also wrote about the long-outstanding proceeding to quantify public interest obligations of television broadcasters that was mentioned in a recent decision denying a license renewal challenge (and implying that a decision was coming soon).  Whether the Chairman’s mention at yesterday’s hearing of the upcoming "item" was a reference to these two proceedings, or to some entirely new effort to re-regulate broadcasters, remains to be seen.  But the "post-card" renewal that was adopted in the 1980s, which has continued to grow in size and complexity over the intervening years, may well grow significantly in the near future.Continue Reading Detailed License Renewal Requirements to Return?

The FCC, after taking two years off, is looking to finish their field hearings on Localism by scheduling a hearing in Portland, Maine on June 29.  This hearing is not one of the six hearings to discuss possible new multiple ownership rules, but instead a continuation of the hearings started by Chairman Powell after public controversy over the 2003 multiple ownership rules.  In an ironic twist of fate, this public notice was released on the Friday before the National Association of Broadcasters Educational Foundation hosts their Service to America Awards Dinner to honor broadcasters and the public service commitment that they have to their communities.  Thus, while the FCC is looking in the hinterlands for evidence of the responsiveness of the broadcast industry to the needs of their listeners, some of the best evidence of that service was on display some 12 blocks from the FCC’s headquarters.

The Localism hearings were part of a larger proceeding begun in response to the controversy after the 2003 multiple ownership rules.  When the Democratic Commissioners, Congressional legislators from both parties, and a variety of citizen’s groups from across the political spectrum complained about how the public’s input was not sought before the rules were adopted, the FCC tried to respond to some of those complaints by putting out a Notice of Inquiry on Localism.  The proceeding was to assess how well broadcasters were serving their communities, and the Notice asked for public comment on a grab bag of issues including the following:

  • whether a broadcaster’s public interest obligations should be quantified (bringing back obligations abolished in the 1980s that required specific amounts of the programming of broadcast stations to be devoted to news and public affairs programming), 
  • should broadcasters be required to play specific amounts of local music,
  • is payola a major issue,
  • whether more programming should be devoted to political campaigns, 
  • whether the voices of minorities were being heard on the airwaves.
  • if the FCC should authorize more LPFM stations and take other steps to make airtime available to new entrants

Continue Reading Another Localism Hearing and Service to America

Yesterday’s New York Times featured an article on its Opinion/Editorial page written by FCC Commissioner Michael Copps, suggesting that enforcement of the public interest obligations of broadcaster become more stringent. Commissioner Copps suggested that broadcasters needed to have their responsiveness to the needs of their community scrutinized more closely, and more often. Among other actions, the Commissioner suggested that license renewal period for broadcasters be shortened from the current eight year term, to once every three years – as well as a host of more stringent and specific programming obligations. Coming on the heels of the FCC’s proposal in the Further Notice of Proposed Rulemaking on Digital Radio (see our summary, here) to explore the local service of broadcasters through a checklist public file report quantifying their public interest service, as well as mandating more local program origination and a greater local presence for stations, local service seems to have emerged as a major issue of concern that may be played out in FCC proceedings in this year leading up to the 2008 Presidential election.

The Copps proposal to shorten license renewal terms back to the three years, and to stiffen the renewal process, asks that the FCC return to a system that required broadcasters to spend significant sums of money on administrative matters that could have better gone to broadcast operations. And the sums that used to be spent on license renewal applications had minimal real impact on the public interest.   While from time to time, broadcasters did run into scrutiny at renewal time, the vast majority of broadcasters’ applications were reviewed in a perfunctory manner and renewed – just as they are today. And with the Commission’s depleted resources that are already stretched thin, it seems unlikely that its staff would be able to provide much greater scrutiny to renewal applications that are filed more than twice as often as they are currently – more than doubling the workload of the already overburdened Commission staff.Continue Reading You Can Force A Broadcaster to Program, But You Can’t Make People Watch: Proposals for More License Renewal Obligations

It’s been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence.  Even though the legislation was effective on June 15, 2006, the higher fines have not yet gone into effect as the FCC had never adopted rules to officially implement them – until today.  Today, the…