Brendan Holland

Subscribe to Brendan Holland's Posts

The FCC recently revised its TV “white spaces” rules to facilitate the use of unlicensed communications devices on spectrum originally allocated exclusively for broadcast television.  Although there is still a long way to go before new unlicensed devices are deployed in this spectrum, the recent revision of the rules has triggered an important deadline.  As…

Among the many items adopted by the Commission at last week’s open meeting was a Notice of Proposed Rule Making (NPRM) regarding retransmission consent agreements and the carriage of broadcast television stations by cable and satellite providers.  Retransmission consent has been a hot topic of late both in Washington and in the national press.  During the past year, a few carriage negotiations between broadcast television stations and cable or satellite operators have resulted in interruptions – or threats of interruptions – in the carriage of local stations.  As a result, both Congress and the public have paid increasing attention to retransmission consent negotiations, and the Commission’s NPRM is a effort to review some aspects of its rules governing the relationship between local broadcast stations and the cable and satellite providers that retransmit their signals.  A copy of the NPRM is available here. 

The NPRM is the outgrowth of a petition for rule making filed in March 2010 by cable and satellite providers, along with several public interest groups.  These groups jointly petitioned the FCC seeking significant changes to the current retransmission consent process.  Perhaps the most notably aspect of last week’s NPRM is not the changes the FCC proposes, but rather the changes it refrains from pursuing.  The Commission states in the NPRM that it does not believe that it has the authority to adopt either interim carriage mechanisms – to require the continued carriage of a station without a station owner’s consent while negotiations continue – or mandatory binding dispute resolution procedures for retransmission consent negotiations, both of which were proposed by the cable and satellite providers in their petition for rule making.  In both cases, the Commission found that it lacked the statutory authority to pursue the rule changes proposed by the petitioners. 

While it proposes to refrain from action on those two elements of the petition for rule making, the Commission does propose to review several aspects of its rules in an effort to, in its words, "protect the public from, and decrease the frequency of, retransmission consent negotiation impasses within our existing statutory authority."   To that end, the NPRM seeks input on strengthening the good faith negotiation rules, including whether it would be  per se violation of the good faith negotiation rules for a station to give a network with which it is affiliated the right to negotiate for carriage, or for a station to grant another station or station group the right to negotiate for carriage, such as when a station is party to a local marketing agreement (LMA) or joint sales agreement (JSA).  In addition, the NPRM proposes changes to the notice requirements of its carriage rules to require advance notice to consumers if there is the possibility that a station will be dropped from a providers’ programming line up.  This advance notice would allow consumers to make alternative plans if negotiations ultimately fail and a station’s signal is deleted from the lineup.Continue Reading FCC to Take a Fresh Look at Retransmission Consent Rules Governing Carriage of Broadcast Television Stations

Yesterday, the FCC initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

The Notice of Proposed Rule Making (NPRM) takes the first step toward restoring the video description regulations that the FCC previously adopted in 2000, but which were subsequently vacated by the U.S.  Court of Appeals for the D.C. Circuit. Now with explicit Congressional authorization, the FCC seeks to restore the video description rules by Oct. 8, 2011, as required by the Act. The FCC proposes a quick implementation, with the video description and pass-through rules beginning Jan. 1, 2012. The most significant elements of the reinstated video description rules are: 

  • Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions.
  • The top five national nonbroadcast networks must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions. The proposed rule would be applied to multichannel video programming distributors (MVPDs), including cable operators and DBS providers with 50,000 or more subscribers, and presumably then be applied to the top five networks through affiliation agreements.
  • “Live” and “near live” programming is exempt from the rules.
  • In order to count toward the requirement, the programming must not have been aired previously with video descriptions, on that particular broadcast station or MVPD channel, more than once.
  • All broadcast stations, regardless of market size or affiliation, and all MVPDs, regardless of the number of subscribers they serve, must “pass through” video description when such descriptions are provided and when the station or program distributor has the technical capability to do so.

In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule. In determining the top five nonbroadcast networks, the FCC proposes to exclude from the top five any nonbroadcast network that does not provide, on average, at least 50 hours per quarter of prime time non-exempt programming, i.e., programming that is not live or near-live. The NPRM specifically seeks comment from any network that believes it should be excluded from the top five covered networks because it does not offer enough pre-recorded prime time or children’s programming.Continue Reading FCC Initiates Rule Making to Reinstate Video Description Regulations for Television Programming

As our colleague Brian Hurh wrote recently on our sister blog, the www.broadbandlawadvisor.com, a federal district court last week granted a preliminary injunction prohibiting the mere retransmission of broadcast television programs over the Internet, without more.  The order is not only important for its confirmation of a 2008 Copyright Office decision rejecting Internet retransmission of video…

Last week the FCC rejected a request by a low power television broadcaster seeking an experimental license to test a technology that would allow broadcast television stations to provide broadband access.  The brief decision, available here, was issued by the FCC’s Media Bureau and rejected the request primarily on the grounds that the technology the LPTV broadcaster sought to test is inconsistent with the existing ATSC standard for transmission of digital television signals in the U.S.  This decision brought about a rebuke by a Wall Street Journal columnist, suggesting that the FCC was not fully exploring one way to rapidly deploy broadband through existing TV licensees, in fears of foregoing the revenues that would come from an auction of reclaimed television spectrum.   This issue arises while the FCC considers the digital conversion of LPTV, and the future of the television spectrum generally.

As has been well known and discussed for at least the last decade, the ATSC standard chosen for digital television broadcast service in the United States is not ideal for mobile service and is not well suited for two-way broadband service.  The current ATSC standard was designed to provide a signal to fixed locations for traditional in-home television watching.   As we have written before, in 2000, in the early days of the digital television conversion, some broadcasters suggested that the system be changed to accommodate a more robust signal allowing better mobile reception and other services that maximize the capacity of the digital channel. That proposal was rejected for fears of slowing the digital conversion, but is seemingly being revisited now. Continue Reading FCC Rejects Request by Low Power Television Broadcaster to Test Technology to Enable Broadband Service Over Broadcast Spectrum

Yesterday, the FCC released four different items to implement the changes enacted by Congress in the Satellite Television Extension and Localism Act, better known as STELA. With one item addressing significantly viewed out-of-market stations, two items regarding signal prediction and measurements for the reception of DTV signals, and a Public Notice requesting comments and data for a report to Congress, the FCC has wrapped up several open issues regarding STELA. As we have written about previously, here and here (among others), in addition to extending the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers unable to receive a signal from their local network affiliate, STELA raised a few additional issues that the FCC needed to address through various rule makings.  With yesterday’s flurry of activity, the FCC has now addressed those issues.

With the first item, the Commission modified the significantly viewed rules that allow for the importation of distant signals in certain circumstances.  The item clarifies that a satellite subscriber need only receive the local-into-local package as a precondition for that subscriber to receive a significantly viewed station, they don’t have to receive the specific local (i.e., in-market) affiliate of the same network as a precondition to receive a distant station affiliated with the same network.  The item further clarifies that STELA no longer requires that equivalent bandwidth be dedicated to in-market and significantly viewed stations, so much as there is an HD format requirement.  Accordingly, subscribers can only receive a significantly viewed HD signal, the satellite carrier must carry the HD signal of the local station affiliated with the same network.  In reaching its decision, the Commission was cognizant of the tension between the protection of localism and Congress’s intention of achieving closer parity between the rules for satellite TV providers and cable TV providers, and it worked to reach a balance between those two sometimes competing goals.  A copy of the Order is available here.Continue Reading FCC Releases Multiple Items Implementing Rules for Satellite Television Extension and Localism Act (STELA)

By December 1, 2010, all commercial and noncommercial digital television (DTV) stations must electronically file an FCC Form 317 with the FCC. This Form reports whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2010.

Under the Commission’s Rules, in addition to providing free over-the-air broadcast…

As summarized by Brian Hurh on our sister site broadbandlawadvisor.com, yesterday the FCC’s Consumer and Government Affairs Bureau released a Public Notice seeking comments to refresh the record on closed captioning that was last addressed in the Commission’s 2005 and 2008 Closed Captioning NPRMs. As recognized by the Commission, much has happened since those…

FCC Chairman Julius Genachowski announced today that the FCC is ready to move forward with preparations for incentive auctions in anticipation of receiving Congressional authority for such auctions at some point in the future.  In a speech at the Spectrum Summit held today at the FCC in Washington, DC, Genachowski invoked President Eisenhower, FDR, and the transcontinental…