It looks like the dates for the FCC incentive auction (where some broadcasters will sell their spectrum to the FCC to be repackaged and resold to wireless companies for wireless broadband purposes) are becoming clear. After this week’s delay of the consideration of the incentive auction items (see our article here), the drafts of
Television
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
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.
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FCC Delays Consideration of TV Incentive Auction Procedures
The FCC was today supposed to be considering the adoption of a public notice that would specify the detailed procedures to be used in the incentive auction (see our articles here and here). In the incentive auction, the FCC will buy the spectrum used by a number of TV stations, repack the remaining TV stations into a more compact TV band, and then resell the vacated spectrum to wireless companies for wireless broadband and other wireless uses. However, yesterday, it was announced that the consideration of these matters would be delayed until the FCC’s August 6 meeting.
The details of the auction are incredibly complicated. In recent weeks, a number of proposals have been raised about the use of the “duplex gap” between the wireless frequencies to be used for the upload and the download of wireless communications, specifically including debates about whether TV stations that do not sell out in the auction, and don’t fit into the repacked TV band in congested markets, could end up in this band. If TV stations end up in the duplex gap, it would displace unlicensed spectrum users, including wireless microphone users, that were initially to use the spectrum and it could potentially create consumer reception issues for any TV stations that end up in this spectrum removed from the adjacent TV stations, where the spectrum would be used for TV in only a limited number of markets.
Continue Reading FCC Delays Consideration of TV Incentive Auction Procedures
Our Quarterly Review of the Legal and Regulatory Issues Facing TV Broadcasters
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…
FCC to Conduct Channel Sharing Webinar after Revising Rules for Post-Incentive Auction Channel Sharing
A webinar to explain the new rules for TV stations that want to share 6 MHz channels after the incentive auction (so that the broadcasters sharing the channel post-auction can enjoy the financial benefit of selling one of their channels during the auction), will be held by the FCC on July 22 from 2 to 3 PM ET. Information about the webinar and a place to register can be found on the FCC website, here. This webinar follows the FCC’s recent decision to provide more opportunities and flexibility for post-auction channel sharing, and the FCC’s other recent actions (see our article here) in moving the incentive auction forward. The webinar will also be on the heels of the decision to be announced on Thursday as to specific auction bidding procedures – including issues such as how the amounts of the initial monetary offers to TV stations to surrender their spectrum will be set, and how much those offers will be reduced in the subsequent bidding rounds until the FCC reaches its target amount of TV spectrum to be cleared for sale to wireless users. Today, let’s look at the channel sharing changes made in the FCC’s order released last month.
Channel sharing has been pushed by the FCC as a way for broadcasters to have their cake and eat it too in the incentive auction. By agreeing to share a 6 MHz channel with another broadcaster, a broadcaster can stay in the TV business and, at the same time, offer a channel for sale in the incentive auction and, if they are successful in that auction, reap the financial benefits of the sale (of course, they will have to share some of those benefits with the other station with which they plan to share). The FCC has even promised that stations that share will still be considered independent stations, so they can each sell their stations independently, and each station on a shared channel will have all the must carry and retransmission consent rights that they had when they independently operated on separate 6 MHz channels. But these agreements cannot be entered into without significant planning and forethought.
Continue Reading FCC to Conduct Channel Sharing Webinar after Revising Rules for Post-Incentive Auction Channel Sharing
Does a Local Business Need Licenses from ASCAP, BMI and SESAC to Play My Radio or TV Station on Their Premises?
Twice this morning, I was faced with the question of whether a business needs a license to play a radio or TV station on their premises, once in a story in one of the broadcast trade publications (see the article here, in the You Can’t Make This Up column toward the bottom of the article) about a gas station that thought that they got around paying ASCAP, BMI and SESAC fees by using “6 or 7” consumer radios around the station. After I saw that article, I thought that it was worth writing this article, as the difference between 6 and 7 radios could make a real difference as to whether the business needs to pay music royalties.
Broadcasters need to be careful about urging their clients to play their stations at their business locations. There are very specific rules, and if the rules are not followed, liability can result. But, as detailed below, there are some exceptions to the obligation of commercial establishments to pay ASCAP, BMI and SESAC that apply specifically to establishments that play only FCC-licensed radio or TV stations. But the details of the exceptions must be observed or there can be issues. All of the performing rights organizations have contractors who travel the country, checking out retailers, bars, restaurants, and other commercial establishments to make sure that they are following the rules. There are periodically press reports about these rights organizations seeking royalties (sometimes through legal actions) from coffee shops, nightclubs, and even farmers markets that publically perform music without signing license deals. So these commercial establishments need to know the rules about music use to avoid becoming a target. As set forth below, the rules are very specific, and broadcasters can actually benefit from the exceptions as, in the limited circumstances set out in the Copyright Act, businesses can play music from FCC licensed outlets without a license, but music from other sources could present an issue. But be careful, as there are very specific rules – and the difference between 6 and 7 radios could be a real issue.
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TV Incentive Auction Moves Forward – The FCC Denies Reconsideration of Auction Framework, Asks for Comments on TVStudy Predictions of Station Coverage to be used in Determining Station Values
Earlier this week, we wrote about the Court of Appeals decision denying appeals of the FCC’s 2014 order setting the framework for the incentive auction to reclaim spectrum used by TV stations and repurpose it for use by wireless companies to provide more high-speed wireless broadband opportunities. But, in addition to the appeals, there were also a number of petitions for reconsideration of the 2014 order. Those were also resolved in an FCC order released last month. Many of the issues considered concerned technical matters as to how the new wireless spectrum would be allocated and sold after it is acquired from the broadcasters. But the order also resolved a number of issues of specific importance to broadcasters, some of which could potentially result in another appeal of the 2014 order to the Court of Appeals.
Initially, in its reconsideration order, the FCC refused to reconsider the modifications to the OET-69 standard for determining interference between television stations as that issue was before the Court of Appeals in the appeal filed by Sinclair and the NAB – the appeal that was denied by the FCC the week before this order was released. The use of the TVStudy updates to the inputs to the OET-69 have again been in the news this week, as the FCC released new population counts for each auction-eligible station as computed by using this information, and asked for comment on this information by July 30. The population served by a TV station is a very important input into how much a station would receive to surrender its spectrum in the incentive auction (just how important that input will be is an issue to be addressed at the FCC meeting next week). The FCC request for comments is here, and the table showing the FCC’s prediction of the population served by each auction-eligible TV station is here. This updated information has already proved to be controversial, with one association representing probable auction participants suggesting that the recomputation of a NY TV station that will set the highest opening offer to buy out the spectrum of any TV station, and from which the offers to other lesser valued stations will be derived, could have the impact of lessening initial buyout offers to other broadcasters (see the blog post here).
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Incentive Auction Moves Forward – Denial of Court Appeal Clears the Way for the Auction, With Procedures to be Clarified at Next Week’s FCC Meeting
The FCC’s stated goal for some time has been to conduct the broadcast incentive auction in 2016 – buying the spectrum used by a number of TV stations, repackaging it and selling it to wireless companies for wireless broadband purposes. This will happen in a very complicated process where there will be two simultaneous auctions, one for TV stations bidding to surrender their channels, and a second for wireless companies looking to buy that spectrum. Only if there are sufficient bidders on both sides – enough TV stations willing to give up their spectrum to entice the wireless companies to bid, and enough wireless companies willing to bid enough to cover the costs of buying out the TV stations needed to clear the spectrum and paying the costs of many of the remaining stations to change their channels so as to clear a uniform block of spectrum nationwide – will the process be a success. The FCC adopted the general framework for the auction last year. Last month, the Court of Appeals rejected certain appeals of that Order, and the next week, the FCC denied other petitions for reconsideration of that Order – setting the stage for the auction to go forward. The FCC will, at its meeting next week, consider more detailed procedures setting out how the auction will be conducted – all looking to the auction really taking place on schedule in early 2016, with certain required filings this year (including the one due on July 9, about which we wrote here).
The FCC last month also issued orders on Channel Sharing between TV stations (where two stations can combine operations on the same 6 MHz television channel, retaining their cable carriage rights, but enabling them to sell one channel in the auction) and on setting aside a television channel in each market after the auction for unlicensed wireless uses. We will separately write about those two items – but today let’s look at the rejection of the appellate challenges to the auction framework itself, and the impact that these decisions have on broadcasters’ plans going forward.
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July Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction Actions, CRB Webcasting Closing Argument and More
By David Oxenford on
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.
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Incentive Auction Next Step – FCC Identifies Auction-Eligible Stations and Requires All TV Stations to File Information on Technical Facilities by July 9
The FCC just took another step toward the TV incentive auction, and set one of the first of what will no doubt be many deadlines for stations to meet as part of the process. The FCC released a list of all stations that they find to be eligible to participate in the incentive auction. These are also the stations that will be protected in the post-auction repacking of the television spectrum if their licenses are not surrendered as part of the auction process. The Commission also released a public notice explaining the next steps in the process and setting the July 9 filing deadline. The public notice sets out a process for any licensee that believes that its station was incorrectly left off the list of eligible stations to request that its station be included – so all station owners should carefully review the list now.
The Public Notice asks licensees to certify on a new FCC form, the “Pre-Auction Technical Certification Form,” FCC Form 2100 Schedule 381, that the information in the FCC’s technical databases regarding their station is accurate or, if it is not, to file corrections and explanations as to why the information is wrong. This new form will be filed in the FCC’s new LMS electronic filing system, and is due from all TV stations eligible to participate in the auction by July 9. In addition, each station needs to provide information about the specifics of the facilities with which they operate – including specifics on their transmitter, antenna and tower. This information will be used by the FCC to evaluate how to repack stations, taking into account their coverage and the costs associated with replacing the station’s equipment after the repacking.
Continue Reading Incentive Auction Next Step – FCC Identifies Auction-Eligible Stations and Requires All TV Stations to File Information on Technical Facilities by July 9