Public Interest Obligations/Localism

Subscribe to Public Interest Obligations/Localism via RSS

Last week, the Senate approved a reauthorization of STELA, the new bill called STELAR (the “STELA Reauthorization Act of 2014”), adopting the version that had been approved by the House of Representatives earlier in the month.  In addition to simply giving satellite television companies (essentially DISH and DirecTV) the a five-year extension of their rights to rebroadcast the signals of over-the-air television stations without authorization from every copyright holder of the programming broadcast on those stations, STELAR made other changes to both the Communications and Copyright Acts that will have an impact on TV station operators once this bill is signed by the President.  The Presidential signing is expected before the end of the year.  [Update, 12/5/2014 – the President signed the Bill yesterday evening, so it is now law]

Some of the important provisions for TV stations contained in this bill include provisions that impact not only the relationship between TV stations and satellite TV companies, but also ones that have a broader impact on the relationship of TV stations with all MVPDs, including cable systems. There is also a provision actually providing more latitude for LPTV stations to negotiate carriage agreements.  Some of the specific provisions of this bill include:

JSA Extension:  STELAR will give TV stations currently operating with a Joint Sales Agreement with another station in their market which they cannot own under the current multiple ownership rules 6 more months to terminate such operations – until December 19, 2016 (after the next Presidential election).  See our discussion of the changes in JSA attribution here and here.
Continue Reading Congress Passes STELAR – Renewing Authorization of Satellite Carriers Carriage of TV Stations – With Some Important Changes to JSA, Retransmission Consent and Market Modification Rules

While we are in the Holiday season, the regulatory obligations faced by broadcasters don’t stop.  December brings a continuation of the TV renewal cycle, though we are nearing the end of that cycle.  Renewal applications for all TV, Class A and LPTV stations in the following states are due on December 1: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  These stations need to file their first two post-filing license renewal announcements on the first and 16th of the month.  Stations that filed their license renewal applications in October also will be broadcasting their post-filing announcements on those same days (their last two announcements).  Those would be stations in the following states and territories: Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan.  TV stations in the states that file license renewals on February 1 (those in New York and New Jersey) have to start running their pre-filing announcements on the December 1 (and run a second on December 16).

There are other routine filings due in December.  On December 1, Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations with employment units with 5 or more full-time employees in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont all need to complete their EEO Public File Report and place that report in their public file (and on their websites, if they have one).  Noncommercial stations still have obligations to file Biennial Ownership Reports on every other anniversary of the filing of their license renewal applications.  That means that these reports are due on December 1 for Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont; and on the same day for Noncommercial AM and FM Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota.
Continue Reading December Regulatory Dates for Broadcasters – Renewals, EEO Reports and Noncommercial Biennial Ownership Reports in Some States; TV Ancillary and Supplementary Revenue Reports; As Well as LPTV Rulemaking Comments and Many Other Expected Actions

Since our note Friday about November regulatory dates for broadcasters, it’s become clear that the FCC will be acting on two more matters of interest to broadcasters – particularly radio broadcasters though each have some implications for TV as well.  First, as we hinted at the end of our article on Friday (the rumors that we had heard having now been confirmed), Chairman Wheeler has circulated a draft Notice of Proposed Rulemaking on the expansion of the online public file to radio (as well as cable and satellite).  And, secondly, the FCC has announced that, at its open meeting on November 21, it will open a rulemaking to modernize the disclosure rules for on-air contests conducted by broadcasters – rules which have resulted in FCC fines over the last few years.

The fact that the online public file proposal for radio has now matured into a Notice of Proposed Rulemaking is confirmed by the FCC’s list of Items on Circulation (basically, draft orders that the Commissioners currently have in front of them for review and voting), which now lists that item near the top of its list.  See the list of Items on Circulation, here: http://www.fcc.gov/fcc-items-circulation.  While most folks in radio knew that the day would come when their public files might be required to go online, the speed with which the FCC now seems to be acting is what is most surprising, as it was only a bit over two months ago that the FCC took comments on whether or not to even consider that proposal (see our article here).  But, with lightning speed, the order appears to be moving forward.  How fast will it be implemented?
Continue Reading Formal Proceedings to Begin to Revise Rules for Broadcasters’ On-Air Contests and Expand the Online Public File Obligations to Radio, Cable and Satellite

With regulatory fees behind us, October brings a number of the routine quarterly regulatory filing dates.  October 10 for all broadcast stations, commercial and noncommercial, is the date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter and the programs that you broadcast to address those issues, need to be placed in the physical public inspection file of radio stations, and the online public file of TV broadcasters.  As missing and incomplete Quarterly lists have led to more fines in the recent license renewal violation than any other matter, and as the FCC staffers have been reviewing some of the TV station lists that are now posted in the online public inspection files of station, completing these forms on a timely basis remains very important. 

Full power TV and Class A TV stations by October 10 also need to have filed with the FCC their FCC Form 398 Children’s Television Reports, addressing the educational and informational programming directed to children that they broadcast.  Also, by that same date, they need to upload to their online public files records showing compliance with the limits on commercials during programming directed to children.  Children’s television reports have trailed right behind the Quarterly Issues Programs lists as the source of fines at license renewal time – so be sure that these are completed and filed on a timely basis as well. 
Continue Reading October Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, New Form for TV CP Applications, Comments on Captioning of Video Clips and Incentive Auction Reimbursement Form and More!

Two recent decisions, the most high profile being the renewal of the Fox television stations in the New York City area, demonstrate the analysis that the FCC goes through in deciding if a station has operated in the public interest and if its license deserves to be renewed.  In the Fox case, the focus was on the public service record of the station, and in particular whether the station had adequately addressed the issues of importance to the residents of New Jersey, the state to which one of its TV stations is licensed.  In a second recent case, that of a California radio station, the issue was much more specific – whether the station had promoted illegal drug use, and whether one of the station’s on-air program hosts had been abusive to callers.  In both cases, recognizing the First Amendment concerns posed by second guessing a broadcaster’s programming decisions, the FCC granted the license renewals.

In the Fox case, the issues were broader in nature.  The Fox station WWOR was licensed to New Jersey – in fact receiving a special license renewal when its then-owner, RKO General, was fighting the loss of its other broadcast licenses for issues involving purported lack of candor with the FCC.  The WWOR renewal was granted when Congress passed very specific legislation agreeing to grant the license of any TV station that moved to a state with no VHF television service (which, at that time, was the superior transmission service for TV).  RKO agreed to move WOR from New York City to Secaucus, NJ and received a license renewal as NJ had no VHF stations at that time.  The renewal was granted with the expectation that, as a NJ station, its public interest programming would focus on NJ.  Whether the service provided by current licensee Fox to NJ was the issue that the FCC addressed in the license renewal challenge.
Continue Reading FCC Decisions, Including Fox TV Renewals, Focus on FCC Limits in Assessing Programming Claims in Reviewing License Renewals

The FCC has asked for public comment on whether it should extend the online public inspection file obligation to radio, and also whether it should adopt an online public file obligation for cable television and satellite television operators.  The latter proposal originates in a recent petition by the Sunlight Foundation and two other…

Next week, on August 6, the FCC will be taking the initial comments on its Quadrennial Review of the multiple ownership rules – looking at what limitations should be placed on the ownership of broadcast stations by one individual or company.  As we have written, this Review follows the FCC’s resolution of the last Quadrennial Review, started in 2011, where the FCC made joint sales agreements between TV stations in the same market “attributable interests” – meaning that you can’t enter into a JSA unless you can own that station under the rules.  All of the other issues on the local ownership rules – including whether to change the rules setting the number of radio or TV stations that can be owned in a single market, and whether the rules against the same market cross-ownership of radio and TV stations, and of daily newspapers and broadcast stations should be modified – were pushed back to this new Review, which is not supposed to be finally decided for another two years.  While we wrote about some of the hidden nuggets in this proceeding in defining radio and TV markets here, let’s look a little deeper at some of the other issues involved in the review – today the local TV ownership rules.  In advance of next week’s comment deadline, there has already been much relevant regulatory action this past week – including the FCC’s approval of the Sinclair’s acquisition of the Allbritton TV stations (but only after Sinclair agreed to surrender to the FCC for cancellation TV stations licenses in two markets as its ownership of those stations would not be allowed under the current rules), and a GAO report addressing Shared Services Agreements between TV stations.

Currently, the FCC allows an owner to hold one TV license in a market, except in certain limited circumstances where two can be owned.  An ownership combination is allowed in the normal course only where there would be eight independently owned stations left in the market after the combination, and only where the combining stations are not both Top 4 stations in the market.  The Commission does also allow some combinations where one of the stations is “failing,” but that is looked at only on a case-by-case waiver basis.  Many broadcasters have argued that, particularly in small markets where there is insufficient revenue to support multiple fully competitive stations, greater consolidation should be allowed.  But the Commission has tentatively rejected that idea in its Notice of Proposed Rulemaking in the new Quadrennial Review.  Why?  Seemingly, small market consolidation was not favored on the simple theory that consolidation is bad, and on the hope that, if the FCC forbids consolidation (and stops any sort of sharing arrangement, like the JSAs that it has already prohibited, and the Shared Services Agreements that it has suggested in this proceeding need to be further limited), minorities and other new entrants will enter the market.  Both of this week’s events – the Sinclair acquisition and the GAO report, seem to cut against the FCC’s beliefs.
Continue Reading Comments on Quadrennial Review of FCC’s Broadcast Ownership Rules due Next Week – Local TV Ownership Issues Highlighted By GAO Report and Sinclair Acquisition Approval

July brings a number of new regulatory dates for broadcasters – including the effective dates of two new compliance obligations for small market TV stations, as well as numerous routine regulatory filing dates.  July 10 brings one deadline for all broadcast stations – it is the date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter and the programs that you broadcast to address those issues, need to be placed in the physical public inspection file of radio stations, and the online public file of TV broadcasters.

Full power TV and Class A TV stations by January 10 also need to have filed with the FCC their FCC Form 398 Children’s Television Reports, addressing the educational and informational programming directed to children that they broadcast.  Also, by that same date, they need to upload to their online public files records showing compliance with the limits on commercials during programming directed to children.  And there are other new obligations for smaller TV stations that are effective this month.
Continue Reading July Regulatory Dates for Broadcasters – New Captioning Obligations, Online Political File for Small TV Stations, Issues Programs List and Children’s Television Reports, and More

In November, the FCC changed its policy regarding the foreign ownership of broadcast stations.  In its decision, about which we wrote here, it agreed to entertain applications seeking “alien ownership” exceeding the 25% limit for foreign ownership of broadcast stations that had previously been in place.  In the modern communications era, with its diversity of media outlets, the Commission determined that the risk of increased foreign ownership was outweighed by the potential for new entrants into the broadcast industry, backed by new sources of capital from outside of the United States.  The FCC did not adopt any blanket rules for permitting higher levels of alien ownership, but instead agreed to consider specific requests for a declaratory ruling on a case-by-case basis to show that foreign ownership of a broadcast station in excess of 25% was not contrary to the public interest.  Despite the invitation to file such requests, as far as we know, none have been filed – until now, and that comes from what is perhaps an unexpected source – Pandora, which is best known as an Internet radio operator.

As we wrote several months ago, Pandora has sought to acquire an FM radio station that operates in the Rapid City, South Dakota radio market.  Its application to acquire the station was opposed by ASCAP, who feared that Pandora would use its status as a broadcaster to ask for broadcaster rates negotiated by the Radio Music Licensing Committee (RMLC) for the public performance of ASCAP music.  ASCAP based its opposition principally on the contention that Pandora had not proved that less than 25% of its stock was beneficially owned or controlled by foreign entities.  Despite Pandora being a company founded in the US by US citizens, headquartered and operating almost exclusively in the US, and traded on the US stock exchanges, ASCAP contended that Pandora had not established that its ownership of a broadcast station would not violate the alien ownership rules.  How could they make such an argument?
Continue Reading Pandora Files First Petition for Declaratory Ruling Under FCC’s Liberalized Foreign Ownership Rules for Broadcast Stations

In the last few weeks, while I was on vacation and otherwise occupied, there have been many big developments in the broadcasting and music industries that I’ll try to write about separately – including the release of the FCC’s Order setting up the first official outline of the television incentive auction process and the Department of Justice beginning an examination of the antitrust consent decrees that govern ASCAP and BMI.  But a couple of quick FCC decisions bear mentioning here.

First, the FCC announced a change in the CALM Act, regulating loud commercials.  We wrote about the FCC’s order implementing the Act, here.  One of the FCC’s decisions in implementing the Act was that stations could comply with its provisions by meeting the standards set out in A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee).  The FCC noted that such standards would be revised from time to time.  That standard has now been revised by ATSC, and stations, to remain in compliance with this safe harbor for compliance under the CALM Act, are expected to comply with the revised standard by June 4, 2015.
Continue Reading Odds and Ends – CALM Act Revisions, New Effective Date for Higher FCC Application Fees, and a Case Exploring the Reach of the FCC Character Policies