Public Interest Obligations/Localism

A few weeks ago, the news was abuzz with the controversy over an Australian law that would make social media companies and even search engines pay for their making available content originating with traditional media outlets.  While the controversy was hot, there were articles in many general interest publications asking whether that model could work outside Australia – and perhaps whether such a bill could even be adopted in the US.  What has received far less notice in the popular press was a US version of that bill that was recently introduced in Congress to address some of the same issues.  The Journalism Competition and Preservation Act of 2021 was not introduced in response to the Australian law, but instead it is an idea that pre-dated the overseas action.  Versions of the US bill have been introduced in prior sessions of Congress, though it never before gained much attention.  But this year’s version has been introduced in both the House and the Senate, has already been the subject of a Congressional committee hearing, and has gained support (including from the National Association of Broadcasters and even the tech company Microsoft).

The intent of these bills, and other similar legislation considered across the world, is to open a new revenue stream for traditional media outlets which cover local news – outlets that have been hit hard by the online media revolution over the last 25 years.  As we have noted in other contexts (see for instance our articles here and here), as huge digital media platforms have developed in this century, these platforms have taken away over half the local advertising revenue in virtually all media markets – revenues that had supported local journalism.  The perception is that this has been done without significantly adding to the coverage of local issues and events in these markets.  We certainly have seen the economics of the newspaper industry severely impacted, with many if not most newspapers cutting staff and local coverage, and even how often the papers are published.  Broadcasting, too, has felt the impact.  Many legislators across the globe have come to the conclusion that these digital platforms attract audiences by featuring content created by the traditional media sources that have been so impacted by online operations.  To preserve and support original news sources, various ways in which the content creators can be compensated for the use of their works, such as the legislation in the US and Australia, are being explored.  We thought it worth looking at proposed legislation in the US and comparing it to the more extensive legislation introduced in Australia, and to highlight some of the issues that may arise in connection with such regulatory proposals.
Continue Reading Making the Tech Giants Pay to Use Traditional Media News Content – Looking at the Legislative Issues

After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Last week, the FCC issued a hearing designation order, sending to an Administrative Law Judge the question of whether an AM station’s license renewal application should be granted.  The hearing seeks to gather evidence as to whether the renewal should be granted despite the station’s record, under its current licensee, where it was operating for only 36% of the time that the licensee owned the station prior to the renewal being filed, and for only 2 days in the 9 months in 2020 after the renewal was filed.  During much of the period that the station was operating, it operated at less than full power (according to the FCC, often without receiving an STA for that low power operation).

Because of these prolonged periods of silence, the FCC asks whether the licensee was really serving the public interest.  For example, if a station is not operating, it cannot cover local issues or broadcast EAS warnings.  Over the last several years, there have been several cases where the FCC has designated for hearing or revoked licenses of stations with records of non-operation for extended periods during a license renewal term, finding that broadcasters cannot warehouse spectrum.  See our articles here and here about some recent examples.  If a broadcast channel is not used by a licensee, these hearings are held to determine if the public interest might not be better served by taking the channel from its current licensee and awarding it to some other party who will make use of it.
Continue Reading FCC Hearing Designation Order Reminds Broadcasters that Long Periods Where They are Not Operating May Lead to License Renewal Problems

In recent months, we have seen concerted attempts to reign in digital and social media from all along the political spectrum – from Washington, in the states and even internationally.  We thought that we would look at some of those efforts and their motivations today.  We will look at many of these issues in more detail in future articles.

Towards the end of last year, the Trump Administration sought to strip social media platforms of Section 230 protections because of their alleged bias against conservative speakers (see our articles here and here).  A similar perception seems to underlie the recently proposed Florida legislation that seems to create for social media a policy similar to the equal opportunities (or “equal time”) policy that applies to broadcasters – a social media service cannot “de-platform” a political candidate if it allows the opposing candidate access to that platform.  That proposed legislation also has announced goals of requiring clear rules for access and editing of political views on such sites.  A press release about that legislation is here, though the actual text does not yet seem to be available for review.
Continue Reading Everyone Seems to Want to Regulate Online Media – But Can They?  Setting the Stage- Looking at the Range of Regulatory Proposals

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • About 200 radio and television stations have been randomly selected to be audited by the FCC for their EEO compliance.

March brings springtime and, with it, a likely reprieve from the cold and extreme weather much of the country has been suffering through.  As noted below, though, March brings no reprieve from the routine regulatory dates and deadlines that fill a broadcaster’s calendar.

TV operators have until March 8 to file comments in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).
Continue Reading March Regulatory Dates for Broadcasters: Copyright, White Spaces, and Zonecasting Comments; LPTV and Translator Analog-to-Digital Extension; Emergency Alerting for Streaming Companies, and More.

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four

This week, the FCC designated for hearing the license renewal applications for a number of Alabama radio stations because of their owner’s conviction on felony ethics violations, stemming from misconduct while he served in the Alabama legislature.  The hearing is to determine the effect of those felony convictions on the character of the licensee to hold a broadcast license.  The Communications Act requires that a broadcast licensee (and its owners) must have the requisite character to operate the station.  Character is reviewed whenever a party seeks to acquire a broadcast license, including when they file for the renewal of that license.  In egregious circumstances, the FCC can even move to revoke the licenses held by a licensee outside of the license renewal process.  Even the sale of a license by a party without the required character qualifications may be prohibited by the FCC, as the Commission does not want to see a wrongdoer profit from the disposition of what is seen as a government asset – the FCC license.

Character has been defined by the FCC through numerous policy statements issued periodically over the last 50 years, and has been further refined by precedents established in individual cases.  This week’s case gives us the opportunity to look at what conduct the FCC considers in assessing the character of any broadcast application, and the factors that are reviewed in determining the impact of bad conduct on the ability of the applicant to hold an FCC license.
Continue Reading FCC to Hold Hearing to Determine What Felony Conviction of Station Owner Means for License Renewal – What Does the FCC Character Policy Require of Broadcast Applicants?  

It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate.  In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics.  This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate).   In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech).  But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.

First, it is important to understand what the Doctrine covered and what it did not.  It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks.  It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations.  The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance.  The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was left to the station’s discretion, and the FCC intervened in only the most egregious cases.
Continue Reading The Return of the Fairness Doctrine – What it Was and Why it Won’t Return

Where do all the Washington DC legal issues facing TV broadcasters stand in these early days of a new Administration? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the