Public Interest Obligations/Localism

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The FCC is now taking comments on the proposal to do away with the syndicated exclusivity and network nonduplication protection rules.  The Further Notice of Proposed Rulemaking, about which we wrote here, was published in the Federal Register today, giving interested parties until May 12 to file their initial comments, and…

The FCC on Friday issued a reminder to all TV stations that, as of July 1, they will have to upload all of their new political broadcasting documents to their online public files.  Up to this point, only stations affiliated with the Top 4 networks in the Top 50 markets had to worry …

Only two weeks ago, we were writing about the FCC’s consideration of TV Joint Sales and Shared Service Agreements (or “side-car arrangements” as some have called them) as being an issue that was just being reviewed at the FCC by the new Chairman and his staff.  Now, according to press reports (including this one), the exploration has quickly moved much further – so far that we apparently will see FCC action in the very near future on these very controversial subjects.  The rumors suggest that the FCC is ready to resolve many of the issues in the current Quadrennial Review of its multiple ownership rules (see our summary of the issues initially raised in that proceeding here) at its March open meeting. According to these rumors, the FCC will prohibit Joint Sales Agreements for television stations in situations where the two stations involved cannot be commonly owned under the FCC’s multiple ownership rules, and at the same time do nothing to relax the broadcast- newspaper cross-ownership restrictions.  This is much the same result on JSAs that was rumored in December 2012, but a harsher result on the cross-ownership issue than the previous FCC Chair was rumored to be ready to take.  In 2012, the proceeding was put on hold to take more comments on the effect of a change in the cross-interest policy on minority ownership (see our article here), and it has sat there since.  This week’s rumors suggest that, as part of the same action (or through a simultaneous action), the FCC will ask about the public interest benefits and harms of Shared Services Agreements in the TV industry.

For investors in television companies and the general public, these rumored actions raise many questions.  How can the FCC take such a decision on the JSA/SSA issue when such agreements have become an integral part of the TV business over the last few years?  What is the difference between a JSA and an SSA?  How can the FCC not recognize that newspapers are in difficult economic times, and some degree of consolidation may well help these economics?  Does the FCC recognize that the media landscape in broadcasting has changed dramatically in the last few years?
Continue Reading TV Shared Service and Joint Sales Agreements Back in the News – Is the FCC Poised to Act Soon, and To Also Reject Relaxation of Broadcast-Newspaper Cross-Ownership?

In a decision released yesterday, the FCC proposed to fine a station and gave it a short-term license renewal as the station could not demonstrate that it had served the needs and interests of its community.  Why?  Because the station had been silent for much of the renewal term – only turning on for a short time every now and then – enough to avoid having its license cancelled for being silent for more than a year.  Several years ago, Congress amended the Communications Act to add Section 312(g) requiring that the FCC cancel a station’s license if it has been silent for more than a year, unless the station can demonstrate some overriding public interest reason for leniency (a showing that, as we wrote here, is difficult to make). 

To avoid the ultimate sanction of having a license cancelled, many stations facing economic issues or other long-term problems with transmitter sites or other matters, will find a way to turn their stations back on the air for a day or two to avoid being off the air for more than a year.  As long as programming is run on the station during that on-air period, the FCC has thus far allowed the stations to continue in this mode.  But, in this license renewal cycle, broadcasters were for the first time required to specify if their stations had been of the air for more than 30 days at any point in the license term.  In yesterday’s decision, the FCC makes clear that a station that spent a significant amount of time off the air may face a sanction – here, the grant of the license renewal for only 2 years rather than the normal 8 year period.  If a station is off the air for more than half the renewal term, it looks like an even more serious sanction may be in the works.
Continue Reading Radio Station Being Silent Too Long Brings FCC Sanction – How Long Can a Broadcast Station Be off the Air Before It Causes Trouble at License Renewal Time?

A new month in a new year, and a number of new regulatory dates are upon us for broadcasters – and important dates for webcasters also fall in this month.  So now that the holidays are quickly becoming just a foggy memory, it is time to sharply focus on those regulatory obligations that you have to avoid legal issues as the year moves forward.  January 10 brings one deadline for all broadcast stations – it is a date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter of 2013 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.
Continue Reading January Regulatory Dates for Broadcasters and Webcasters – Children’s Television Reports, Quarterly Issues Programs List, Webcaster Elections and Minimum Fees, the Return of Lowest Unit Rates and More!

It is the beginning of another year – and a time to look ahead to look ahead at what broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in Washington’s alphabet soup of regulatory agencies in the near future.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

Each January, we publish a list of issues for the coming year, and it is not always the case that these issues make it to the top of various piles (literal or figurative) that sit in various offices at the FCC.  As set forth below, there are a number of FCC proceedings that remain open, and could be resolved this year.  But just as often, a good number of these issues sit unresolved to be included, once again, on our list of issues for next year.  While some issues are almost guaranteed to be considered, others are a crap shoot as to whether they will in fact bubble up to the top of the FCC’s long list of pending items. So this list should not be seen as a definitive list of what will be considered by the FCC this year, but instead as an alert as to what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.
Continue Reading What’s Up in Washington For Broadcasters in 2014? — Part 1, FCC Issues

Last week, the FCC issued a declaratory ruling concluding that its long-standing policies on foreign ownership of broadcast stations were misunderstood – “clarifying” its policy to make clear that, if alien ownership exceeds 25% of the holding company of a licensee, it may in fact be permissible.  The Commission decided to adopt a case-by-case approach to determine if any proposed alien ownership in excess of 25% is in the public interest.  It is unclear why the FCC made a point to say that this was just a clarification of a policy that has been viewed as a strict prohibition on alien ownership of broadcast properties where the indirect ownership was in excess of 25%.  In the past, the FCC broadcast prohibition was viewed as all but absolute, even though the governing statute allows for the 25% threshold to be exceeded unless the FCC determined that such excess foreign ownership was not in the public interest and ownership in excess of 25% has been allowed (under the same statutory provision) for nonbroadcast services.  Nevertheless, last week’s decision made clear that foreign ownership levels in broadcast holding companies beyond the 25% threshold were possible, but much else was left unclear in the decision.

As stated in the ruling, the foreign ownership limitations were adopted because of concerns that foreign owners who controlled the instruments of communication in a time of emergency could be a security threat.  Moreover, in broadcasting, there was the fear that such foreign owners could disseminate propaganda to the citizens of the US.  While times have changed and the risk of the dissemination of propaganda by broadcasting seems quaint when there are so many other ways to disseminate what might be called propaganda to the public, the FCC still regards this as a concern that needs to be evaluated in every case.  At the FCC meeting where the order was adopted, and in the ruling itself, it was made very clear that, in the event of any application that proposes foreign ownership in excess of 25%, the Executive Branch of government (including Homeland Security) would have to approve the foreign ownership, concluding that it does not pose any threat to the United States.  For foreign companies that want to invest in broadcasting, this is not the only question that remains unanswered.
Continue Reading FCC Allows More Than 25% Foreign Ownership of Broadcast Stations – Instructions for Investors are to Be Developed

This is the 75th anniversary of the Mercury Players broadcast of the Orson Welles production of the War of the Worlds – a radio broadcast that seemingly scared many Americans into thinking that the country was under attack by Martians, that my home state of New Jersey had been overrun, and that the rest of the country would be soon to follow.  PBS’s American Experience just ran a great documentary about the production – talking about Wells’ decision to delay an announcement that the program was a fictional production, not a real invasion, long after his network superiors ordered that announcement after the phone lines of the network were tied up.  Also tied up were the phone lines of emergency responders, and it supposedly even caused people to leave their homes to flee the path of the oncoming invaders.  The PBS program talked about how the FCC opened an investigation of the program, and how Congress demanded that laws be passed to prevent such a broadcast from happening again.  Essentially, through some well-publicized apologies by Welles and others involved in the program, and a promise by the network to take steps to prevent it from happening again, the FCC closed its investigation and no law was passed by Congress.  Even though the government did not act 75 years ago, it is interesting to look at how the FCC has changed since that time, and why such a broadcast would not fly under FCC rules today.

Most prominent among the FCC rules adopted since the famous broadcast is the FCC’s rule against “hoaxes.”  As we’ve written before (usually just before April Fools’ Day), this rule (Section 73.1217) forbids broadcasters from airing programs that are false where it is foreseeable that the broadcast will tie up the resources of first responders or that the broadcast will otherwise cause harm to people or damage to property, and where such harm is in fact caused.  Applying that rule to the War of the Worlds broadcast would mean that the radio network (and its affiliated stations) could likely be looking at big fines were such a broadcast to be made today. While a broadcaster could certainly argue (as was done at the time) that no rational person would believe that the Martians were really invading, the fact that the network was deluged with calls, and that the network warned its director to air a disclaimer (which was delayed for dramatic effect) would likely defeat any such arguments.
Continue Reading Orson Welles’ War of the Worlds 75 Years Later – What Would the FCC Do Now?

At its November 14 meeting, the FCC is tentatively scheduled to consider the relaxation of its limits on the ownership of broadcast stations by foreign entities or citizens.  Under the current “alien ownership” limitations, US citizens or entities must own 80% of a broadcast licensee, or 75% of a licensee’s parent company.  In the broadcast world, the 25% alien ownership limit must be analyzed both as to equity and voting interests.  In the modern financial world, where companies are often owned by many diverse investors (or funds with widely diverse ownership), these rules can be very burdensome in assuring compliance and managing the potential investment in US broadcast operations by foreign sources of capital. 

Under the governing statute, Section 310(b)(4) of the Communications Act, the FCC can’t allow a licensee in any service that it regulates to be more than 20% foreign owned.  But the statute allows a parent company of a licensee to be 25% foreign owned, and even allows that parent company to exceed that “limit” unless the FCC finds that the public interest would be compromised by foreign ownership greater than 25%.  Thus, the rules are actually written to presume that the “limit” can be exceeded, unless the FCC sees a problem.  The principal concern that would raise a question under the law would be one of national security – the government does not want crucial communications infrastructure, or the means of dissemination of information to the public, to be controlled or unduly influenced, by foreign interests in the event of some emergency.   As we wrote just 6 months ago, in non-broadcast services, the FCC has routinely allowed foreign ownership to exceed the 25% threshold, and recently made it easier for companies to demonstrate their compliance with the rules.  This clearly shows that national security issues can be addressed in other ways.  How about in the broadcast services?
Continue Reading FCC to Consider Allowing Increased Foreign Ownership of Broadcast Stations at Its November Meeting

Another month is upon us, along with all of the FCC regulatory obligations that accompany it. August brings a host of license renewal obligations, along with EEO public file obligations in a number of states, as well as noncommercial Biennial Ownership Report filings in several states. We also expect that the FCC will notify stations of the date for the payment of their regulatory fees (which will either be due late this month or early next). As we reported yesterday, the filing of long-form translator applications for over 1000 applicants from the 2003 FM translator window also comes at the end of the month. There are comments due in a number of FCC proceedings. We’ll talk about some of those issues below. For TV broadcasters, we also suggest that you review our article that recently ran in TV NewsCheck, updating TV broadcasters on issues of relevance to them not only this month, but providing a description of the full gamut of issues facing TV broadcasters. We prepare this update for TV NewsCheck quarterly.

Today brings the deadline for the filing of license renewal applications for radio stations in California and for TV stations in Illinois and Wisconsin. Stations in these states, and in North and South Carolina also have EEO public inspection file reports that should be placed in their public inspection files no later than today. Noncommercial TV stations in Illinois and Wisconsin also need to file Biennial Ownership Reports today, and noncommercial radio stations in California, North Carolina, and South Carolina should also file their Biennial Ownership Reports by today.Continue Reading August FCC Regulatory Deadlines for Broadcasters – Including Renewals; EEO; Comments on Indecency, the Online Public File and Cross-Ownership