Public Interest Obligations/Localism

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In several recent cases, the FCC has denied exemptions from the requirement that programming carried on TV stations and MVPDs have closed captions to serve the hearing impaired members of the viewing audience. While exemptions from these requirements are allowed if a programmer can demonstrate that the captioning would present an economic hardship, these waivers are difficult to receive as a programmer must show that, looking at its overall operations, there are insufficient financial resources to afford the captioning for the program (see our article here). In the recent cases, the FCC has looked beyond simply the net income of the programmer in deciding if the programmer is financially capable of paying for the captioning, and in cases released yesterday, the FCC also looked at the overall assets of the programmer to see if it has the capacity to caption the program. Even if funds must be diverted from other programs of the programmer, the availability of funds to the programming organization was enough for the FCC to deny the requested exemption. Specifically, in the three recent cases, religious organizations which produced a single program claimed that, in order to caption their programs, they would have to divert resources from other programs. The FCC found that, as long as the money is there, the programs need to be captioned even if other activities of the organization suffer.

The FCC made that clear in a case decided a few weeks ago. There, it decided that, if a church had sufficient income to pay for captioning, even if it had to divert resources from other “ministries” engaged in by the church, it could not escape the obligation to caption its program. That case was relied on in another decision released yesterday, where a religious organization had been operating at a close to break-even mark over the two years for which it provided its finances, as the FCC said that it had sufficient assets to pay for the captioning – not relying solely on the income of the organization. In another case involving a larger church with greater income and expenses (which were also roughly in balance in the last two years according to the financial statements provided), the FCC there too looked to the current assets of the church (including investments in securities, bank deposits and pledges receivable). The fact that these assets were significantly in excess of current liabilities, led to a determination that captioning was financially feasible for this church. The FCC also rejected an argument that its rules placed an unconstitutional burden on religious freedom – finding that the burden was one imposed on all programmers and was not directed to religious programmers, and was therefore constitutional. So what does it take to get an exemption?
Continue Reading Church Programming Not Exempt From Captioning Requirements – FCC Looks to Total Assets of Programmer in Denying Economic Exemptions, and Decides There are No Religious Freedom Constitutional Issues

The FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any multichannel video programming distributor (i.e. cable or satellite TV) from carrying the signal of the station at the end of a retransmission consent agreement unless the station is accessible over-the-air or by Internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this Petition are due by August 14. This is an initial Petition for Rulemaking (which can be viewed here), so these comments will inform the FCC as to whether to further pursue the proposals made in the Petition through a formal Notice of Proposed Rulemaking which would be needed before a rule change.

Obviously, this petition raises controversial issues. Mediacom asserts that it is looking after the interests of consumers in being able to access television programming – and not losing that access during retransmission consent negotiations. Broadcasters, on the other hand, feel that the ability to remove their signal from an MVPD is their most effective bargaining chip in retransmission consent negotiations. Broadcasters will no doubt argue that they have the rights to their programming and, if the MVPD will not agree to terms for its carriage, the MVPD should no longer have the right to carry the programming.
Continue Reading FCC Asks for Comments on Petition for Rulemaking that Would Tie TV License Renewals to Restrictions on Blackouts after the Expiration of Retransmission Consent Agreements

In the last month, the FCC has released two decisions dealing with efforts by holders of expiring FM construction permits to retain the rights to construct the technical facilities authorized by that permit beyond the expiration date of the permit. In one case, the FCC announced a policy that, from now on, the construction of temporary facilities will be insufficient to warrant the grant of a license application for a new station. In another case, the FCC decided that a station that had an expiring construction permit for modified facilities to upgrade its station from a Class C1 to a Class C0 station, which had twice expired before and been replaced by a new CP each time, was subject to a competing applications filed the day after the expiration of the most recent CP. It is clear from these cases that the FCC’s Audio Division is taking a hard line on the three year deadline on the construction of new facilities for FM stations, and is reluctant to preserve expiring permits, especially if the permit blocks opportunities for the use of the frequency elsewhere.

The first case involved a permittee of a new station who, immediately before the expiration of the three years that it was given by its construction permit to build the station, turned it on and filed a license application that was quickly granted by the FCC. About 10 days later, the new licensee requested authority to go silent while it sought approval of its construction plans for a permanent facility. The station remained silent for almost a year, before recommencing temporary operations from a different transmitter site pursuant to an STA. When the licensee filed for the renewal of its license and another application to move to a different transmitter site and to change city of license, a competitor objected, arguing that the licensee had misrepresented facts to the FCC about whether its station was ready for its initial operations from its original site and contending that the original license should never have been granted.
Continue Reading FCC Takes Hard Line on Efforts to Keep Alive Expiring Construction Permits for Both New FM Stations and Modifications of Existing Stations

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. Our latest update was published today, and provides a summary of the status of legal and regulatory issues…

Another month is upon us, with the typical list of FCC dates of importance – and some new issues (including incentive auction developments that will probably be a regular part of our news through a good part of next year). One date of importance to some TV broadcasters was yesterday – July 1 – when TV stations affiliated with one of the Big Four TV networks and located in the Top 60 TV markets need to be carrying at least 50 hours of prime time or children’s programming each quarter containing video description. While most of this programming will come from the networks themselves, affiliates in these markets should be now be passing through enough of this video-described programming to meet the quarterly minimums.

July 10 brings other routine filing deadlines. For all broadcasters, by July 10 you should have in your public file (the online public file for TV stations) your Quarterly Issues Programs lists describing the most important issues that faced your community in the prior quarter and the programming that you broadcast to address those issues. Also due to be filed at the FCC by July 10 is your station’s Children’s Television Programming Report on Form 398 describing the programming broadcast on your station to serve the educational and informational needs of children. In addition, TV stations need to place in their online public file information showing compliance with the commercial limits in children’s programming and, for Class A stations, documentation showing continued eligibility for Class A status. For other dates of importance to broadcasters, see our Broadcaster Regulatory Calendar, here.
Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction Actions, CRB Webcasting Closing Argument and More

June brings some standard obligations for broadcasters in a number of states with anniversaries of their license renewal filing, plus the return of an obligation that we have not seen in 4 years- the obligations of radio stations in certain states to file an FCC Form 397 Mid-Term EEO Report. In addition to these routine regulatory deadlines, comment dates on certain FCC proceedings, a new CALM Act deadline, and some decisions for which broadcasters should be watching are among the regulatory actions that we can expect this coming month.

First, let’s look at the standard recurring obligations. By June 1, Annual EEO Public Inspection File Reports need to be placed in the public inspection files (including the online files of TV stations) of stations that are part of a station employment unit with five or more full-time (30 hours per week) employees that are licensed to communities in these states: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia.  As we wrote in more detail yesterday, June 1 also brings the obligation of radio stations that are part of employment units with 11 or more full-time employees, and are located in Maryland, DC, Virginia or West Virginia to file their Form 397, EEO Mid-Term Report. Every other month for the next four years we will see a similar obligation arise for a group of radio or TV stations in states that have celebrated the 4th anniversary of the filing of their license renewal applications.
Continue Reading June Regulatory Dates for Broadcasters – EEO Public File Reports and Form 397, CALM Act Compliance Obligations, Incentive Auction Actions, Comments on Reg Fees and LPFM Rules, and More

Almost two years ago, the FCC launched its AM revitalization efforts with great flourish, and promises of prompt action. We wrote about the two aspects of potential assistance for AM stations that were proposed in the FCC’s Notice of Proposed Rulemaking – technical proposals which mostly focused on ways to make the relocation of AM stations easier (see our article here) and the quick-fix proposal for new FM translators reserved for AM stations, a band-aid to keep AM stations alive while a new more permanent solution for these stations could be found (see our post here). The comments on the translator proposal, a filing window for new FM translators reserved for AM stations, were almost all positive. The vibrations from the FCC also seemed to be positive, and many AMs have been hanging on in anticipation of the coming of this filing window. This week, serious questions arose as to whether the FCC thinking on this issue has changed – and it appears that a translator window for AM stations may not in fact occur (or perhaps not in the manner that it was envisioned by most observers over the last two years).

This rethinking was first exhibited in an article on the FCC’s Blog, posted by FCC Chairman Wheeler on Monday morning, April 13, just as the National Association of Broadcasters Convention was beginning in Las Vegas. The article quickly became a prime topic of conversation among radio broadcasters at the convention. In the article, the Chairman promises to move quickly to resolve the issues posed in the AM NPRM, adopting some of the technical proposals that were set out in the NPRM, and proposing for future consideration new ideas for AM improvement. But what gathered the most attention were his comments on FM translators for AM stations. He wrote the following about that window:

I have two concerns about the record and whether opening such a window is necessary, given the current state of the marketplace. The first is whether there is an insufficient number of FM translator licenses available for AM stations….The second unanswered concern is why, if it is necessary to open the translator window, it should only be opened for one group… [I]f we are to assure that spectrum availability is an open opportunity, then the government shouldn’t favor one class of licensees with an exclusive spectrum opportunity unavailable to others just because the company owns a license in the AM band.

Conversations in Las Vegas centered around the meaning of these comments, comments that were further amplified in his speech before the NAB Convention on Wednesday.
Continue Reading The Confusing State of AM Radio Revitalization Efforts – No FM Translator Window for AM Licensees?

April is one of those months with many routine FCC obligations. Quarterly Issues Programs lists need to be in your public file by the 10th of the month. This is an obligation for all full-power broadcast stations – commercial or noncommercial. Similarly, all TV stations have an obligation to submit their Children’s Television Reports on FCC Form 398 demonstrating compliance with the obligations to provide educational and informational programming directed to children, and at the same time put into their public files documents showing their compliance with the limitations on commercials within programming directed to children.

EEO public file reports are due for stations that are part of an employment unit with 5 or more full-time (30 or more hours per week) employees which is located in any of the following states: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas. Noncommercial TV stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee; and noncommercial radio stations in Texas, need to file their Biennial Ownership Reports with the FCC on April 1. Finally, license renewal applications in the last license renewal window for this license renewal cycle are due to be filed on April 1 by TV stations (and TV translators and LPTV stations) in Delaware and Pennsylvania. The next regularly scheduled license renewal will be filed by radio stations in certain states – but not until June 2019!
Continue Reading April Regulatory Dates for Broadcasters – Including Quarterly Issues Programs and Children’s Television Reports; Comments In Proceedings Including One on Digital Auxiliaries; and More Incentive Auction Seminars

The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16…

A flurry of fines against broadcasters have come out of the FCC in the last week.  These fines highlight the scrutiny under which owners of broadcast stations can find themselves should an FCC Field Office inspector knock on their door.  If the FCC pays a visit and finds a violation, a station is often looking at a fine even if it quickly takes corrective action.  Let’s look at some of these fines and the issues raised by each.

First, a Regional Director of the FCC’s Enforcement Bureau yesterday released a $17,000 Forfeiture Order (a notice of a fine) to a Michigan AM broadcaster for having a fence around its tower that had “separated” allowing unfettered access to the site and for missing quarterly issues programs lists in the public file.  The FCC refused to lower the fine, despite the licensee’s arguments that the quarterly issues programs lists were in fact at the station but there was “confusion” as to where they were at the time of the inspection, and its argument that it should not be responsible for the fencing issue as it did not itself own the real estate or the towers.
Continue Reading FCC Fines: $17,000 for Unsecure AM Tower Fence (Not Owning the Tower Site is No Excuse); $25,000 for Missing Quarterly Issues Programs Lists; $22,000 for Nonfunctioning EAS and Wrong Tower Coordinates