Fines for noncommercial broadcasters who air acknowledgments of their donors and contributors that sound too much like commercials have been a problem area for many noncommercial educational radio and television stations, and have resulted in significant fines from the FCC. The FCC allows "enhanced underwriting announcements" that identify a sponsor, what their business is
Big FCC Fines for Public File Violations for Commercial and Noncommercial Stations
The FCC today issued fines of as much as $12,000 for public file violations. Together with the fine issued earlier this week for a station that did not allow unrestricted access to its public file, these actions make clear how seriously the FCC takes the obligations of broadcast stations to maintain and make available their public inspection files. The fines issued today went to both commercial and noncommercial stations, with two noncommercial stations each receiving fines of $8000 for not having complete public files. Violations are expensive – even if your station is owned by a noncommercial entity.
The largest fine, $12,000, went to a commercial station that, when inspected by FCC Field Inspectors in March 2010, could not produce anything in its public file more recent than 2006. While the licensee claimed that the documents were kept at the office of the station owner several hundred miles away, the FCC found that the violation of having nothing from more than 3 years of operation was so egregious that an upward adjustment from the standard $10,000 public file fine was warranted. The two fines issued to noncommercial stations were not as egregious, but still resulted in significant fines. A review of the details of those cases are instructive as to the excuses and mitigating circumstance that the FCC rejected when the licensees tried to argue for a significant reduction or elimination of the fine. Continue Reading Big FCC Fines for Public File Violations for Commercial and Noncommercial Stations
On the 15th Anniversary of the Telecommunications Act of 1996, The Effect on Broadcasters is Still Debated
On February 8, 1996, the Telecommunications Act of 1996 was signed into law by President Bill Clinton. While the Act had significant impact throughout the communications industry, the impact on broadcasters was profound, and is still being debated. The Act made changes for broadcasters in several major areas:
- Lengthened license renewals to 8 years for both radio and TV, and eliminated the "comparative renewal"
- For radio, eliminated all national caps on the number of radio stations in which one party could have an attributable interest and increased to 8 stations the number one party could own in the largest radio markets
- For television, raised national ownership caps to having stations that reached no more than 35% of the national audience, with no limits on the number of stations that could be owned as long as their reach was under that cap.
- Allocated spectrum that resulted in the DTV transition
Obviously, the DTV spectrum began the profound changes in the way television is broadcast, and led to the current debate as to whether over-the-air television should be further cut back in order to promote wireless broadband (see our recent post on the FCC’s current proceeding on this issue). While the other changes have now been in effect for 15 years, the debate over these provisions continue. Some argue that the renewal and ownership modifications have created too much consolidation in the broadcast media and lessened the broadcaster’s commitment to serving the public interest. Others argue that, in the current media world, these changes don’t go far enough. Broadcasters are under attack from many directions, as new competitors fight for local audiences (often with minimally regulated multi-channel platforms, such as those delivered over the Internet) and others attack broadcasters principal financial support – their advertising revenue. Even local advertising dollars, traditionally fought over by broadcasters and newspapers (with some competition from billboards, direct mail and local cable), is now under assault from services such as Groupon and Living Social, and from other new media competitors of all sorts. With the debated continuing on these issues in the current day, it might be worth a few looking back at the 1996 changes for broadcasters, and their impact on the current broadcast policy debate.Continue Reading On the 15th Anniversary of the Telecommunications Act of 1996, The Effect on Broadcasters is Still Debated
While Few Vie for New VHF TV Stations in NJ and Delaware, FCC Sets Comment Date on Improving VHF Digital Reception and TV Channel Sharing With Must Carry Rights As Ways to Help Clear TV Band for Broadband Users
The FCC’s auction of new VHF TV channels in New Jersey and Delaware (about which we have written many times including here) has resulted in only three qualified bidders. Despite this lack of interest in these VHF channels, the FCC seems to be looking at VHF as a way to facilitate its announced plans for the clearing of significant portions of the television spectrum for wireless broadband use. The Commission this week set the comment date – March 18, 2011 – on ways to overcome the issues that have been posed to TV stations that have remained in VHF channels after the digital transition. In the same proceeding, the FCC also seeks comments on allowing TV stations to share the same 6 MHz channel, with both stations retaining their cable and satellite must-carry rights. That same proceeding implies that we may well have seen the last new over-the-air television stations. This crucial proceeding on the future of the television band requires careful attention by all parties who may be affected by the many proposals contained in this relatively compact Notice of Proposed Rulemaking.
The first part of the FCC’s proposal (about which we previously wrote here), is to look at ways to get some of the television stations to give up their current channel to allow the FCC to use it for broadband, and having that station share another station’s channel to continue to provide its program service on what is the equivalent of a digital subchannel. The proposal to encourage multiple TV stations to share the same 6 MHz channel raises many issues. First, the FCC recognizes that the proposal may result in some television stations giving up their ability to broadcast in High Definition (one of the principal reasons for the initial transition to digital), but suggests that stations sharing the same channel could work out "dynamic arrangements" to allow sharing the spectrum flexibly, increasing the portion digital bandwidth allocated to one station when it has programming that would benefit from higher definition, while switching some of the bandwidth allocation to the other station at other times.
While the Commission assumes that each station will continue to exist as an independent station even when sharing a channel with another station, many of its questions in this proceeding seem to signal uncertainty about this conclusion. Issues on which the Commission seeks comment include:
- What effect will channel sharing have on the deployment of HD programming and mobile television? The Commission does not ask about 3-D television, which some broadcasters have begun to experiment with, and might be worth a comment if there are those who expect that to be part of the television future that could be affected by channel sharing arrangements.
- In channel sharing, would each station be able to maintain a Standard Definition signal at all times?
- The Commission assumes that each station sharing a single channel (and thus a single transmission facility) would retain a separate license, and be individually responsible for FCC-rule compliance (e.g. EAS, indecency, children’s television, political broadcasting, etc). How would responsibility over the technical compliance be apportioned?
- Should commercial and non-commercial stations be allowed to share the same channel? Could commercial stations share channels that have, to this point, been reserved for noncommercial educational uses?
- Will there be a loss in service to the public from such combinations? Will there be television "white" and "gray" areas created, i.e. areas where there will be no over-the-air television service or only a single service?
- Should cable and satellite service be included when evaluating questions of loss of service?
- What impact should channel sharing have on other FCC rules, like the media ownership rules?
Perhaps the biggest issue with channel sharing is the cable and satellite carriage issue, which raised a number of issues for the Commission. The issues, summarized below, also demonstrate the Commission’s tentativeness in its conclusion that two stations sharing the same channel are really independent stations.Continue Reading While Few Vie for New VHF TV Stations in NJ and Delaware, FCC Sets Comment Date on Improving VHF Digital Reception and TV Channel Sharing With Must Carry Rights As Ways to Help Clear TV Band for Broadband Users
FCC Adopts New Ex Parte Rules Setting Out What Must Be Disclosed By Parties Lobbying the FCC
When the FCC looks to adopt new rules or policies through rulemaking proceedings or through other significant cases, there are often companies, associations and individuals trying to influence the decision on these matters. Such discussions with FCC decision makers are permitted, but the parties trying to influence the FCC’s decisions must file notices in the Docket of
Rule Against Broadcast of Telephone Conversation Without Prior Permission is Constitutional, Says FCC
The FCC today upheld a $4000 fine issued to a broadcaster for broadcasting a telephone conversation without first getting the permission of the people on the other end of the line, denying reconsideration that the broadcaster had sought – arguing that the fine violated its First Amendment rights. The telephone conversation that led to the fine was between a station employee and two airport officials, about a controversy concerning the local airport. As summarized in our original article about that decision, the alleged violation arose from a call by the station employee to the airport officials to talk about the local controversy. The employee allegedly identified himself as a station employee, and started to ask questions – without specifically stating that the call was being broadcast. Even though the airport officials kept talking once they knew that the call was being recorded, the FCC still fined the station $4000, finding that the violation occurred once the officials said "hello" on the phone without having been told beforehand that the call was being broadcast. The decision denying reconsideration is most notable for its long discussion of the First Amendment, which the station argued should override the FCC’s rules against broadcasting a telephone conversation without prior permission.
The broadcaster argued that, as in any case restricting speech rights, the FCC needed to show a compelling interest to restrict a broadcaster’s free speech rights. Here, the broadcaster argued, no such compelling interest justifying the FCC’s blanket rule against broadcasting a conversation without getting prior approval had been shown. The broadcaster made the point that this was not some case of a wake up call to a visiting celebrity, or a spoof call to a prominent person where the caller was not identified, but was instead a case of a reporter calling a news source for comment on a news controversy. The subjects knew that they were talking to the station, and thus should have assumed that the substance of their statements might end up being broadcast. The mere fact that their actual statements were being broadcast live should not, contended the broadcaster, be a sanctionable offense. Continue Reading Rule Against Broadcast of Telephone Conversation Without Prior Permission is Constitutional, Says FCC
As Applications for New FM Auction Are About to be Filed – FCC Clarifies Rules on Changes to New Allotments
The FCC is now accepting Form 175 applications for FM Auction 91 – an auction of 144 new FM channels across the country. Applications are due between now and February 10. We wrote about the auction here, and the list of channels to be auctioned is available here. So, if you are interested in a new FM channel, act now!
While this auction is proceeding, in a recent case, the FCC addressed what to do with new FM channels that are not yet set for auction. The FCC regularly receives petitions for rulemaking, seeking the addition of new FM channels. Once allotted, these channels may sit on hold for a year or more before being listed for an auction like that now starting. There are many such channels awaiting auction now, and not included in Auction 91. During that period between auctions, owners of existing stations may find that these vacant allocations block upgrades or other changes that the owners may want to make to their existing stations. Until recently, the existing licensee could suggest changes to the new allotments while they were sitting there waiting to be put out for auction – changes including restricting the transmitter site location for that new channel, changing the city of license for the allotment, downgrading it, or even deleting the channel altogether. As set forth in the recent case, the policy has been to entertain these proposals, unless there was a showing that there was a party ready to file for the vacant allotment. In the recent case, the FCC decided that no future proposals to change vacant allotments would be entertained, as the Commission believes that all channels have someone who is interested in the channel, or there will be an interested person when the next auction begins. This policy will govern all future proceedings, with the limited exception that the FCC will entertain a change in frequency for a new allotment, as long as no other changes are made in that allotment (i.e. it stays at the same location and will continue to be able to operate with the same power).Continue Reading As Applications for New FM Auction Are About to be Filed – FCC Clarifies Rules on Changes to New Allotments
FCC Designates Database Adminstrators for TV White Spaces Devices
The Commission today released an Order conditionally designating 9 companies to be database administrators for white spaces devices. As we wrote in our article describing the FCC’s recent decision on reconsideration of its White Spaces order, these administrators will be responsible for maintaining a database of all users of the TV spectrum who must be protected from interference from white spaces devices. Protected entities include TV stations, LPTV stations and TV translators, cable and satellite receive locations, certain wireless microphone users, and the paths between TV stations and translators. Each database must maintain all of this information, so that white spaces devices can determine what channels must be protected in areas in which they are operating.
The conditional nature of the designation reflects the fact that these administrators had requested designation in late 2009, before the recent Order on Reconsideration which adopted the new requirements that all white spaces devices must communicate with these administrators instead of relying on any sort of spectrum sensing. Thus, the FCC is requiring the proposed administrators to update their filings to reflect that they can meet the new requirements for the maintaining the database. One of these new requirements is one of security – so that it can be ensured that the users will have an accurate data base from which to operate, without fear of tampering or other abuses. The FCC will also require that each administrator attend an education session conducted by the FCC, and to go through a rigorous testing period – with tests conducted by the FCC to make sure that the administrator’s service will actually provide the necessary information to protect incumbent TV spectrum users from interference from white spaces devices.Continue Reading FCC Designates Database Adminstrators for TV White Spaces Devices
Reminder: Most Webcasters Need to File With SoundExchange Minimum Fees and Many Need A Notice of Election of Webcaster Settlement Act Rates, All By January 31
Each year, we remind webcasters about their obligations under various settlement agreements entered into with SoundExchange and under CRB decisions to make minimum payments and, in some cases, to file a Notice of Election to be covered under certain negotiated rates – all due by January 31. All webcasters have minimum fee obligations due by January 31. Many, though not all, Webcasters who have elected the the royalty rates set by many of the settlement agreements entered into pursuant to the Webcasters Settlement Act must also file an election notice with SoundExchange by January 31 to continue to be covered by those settlement agreements. These agreements were entered into by groups of webcasters and SoundExchange, and allow the webcasters to pay royalties at rates lower than those rates set by the Copyright Royalty Board for 2011.
While SoundExchange has, in the past, sent out reminders of these obligations to services that had paid in the prior year, sometimes these notices get lost, so Internet Radio operators need to remember to make these filings. The original election forms filed under settlement agreements signed by the NAB and by Sirius XM cover the entire settlement period from 2006-2015, so no election form must be filed each year, though minimum fee payments must still be made. Note that certain small broadcasters, who under the Broadcaster agreement need not comply with SoundExchange recordkeeping obligations, do need to file an election to certify that they still meet the standards necessary to count as a small broadcaster. The WSA settlement agreements that cover Pureplay webcasters, Small Commercial webcasters, and certain Noncommercial Educational webcasters are all are entered into on a year-by-year basis (though, as noted below, there is a default in certain noncommercial webcasting agreements that, if you were covered in prior years, you will be continued to be covered in the current year, unless you opt out). Thus, to continue to be covered, parties currently governed by these agreements need to file a Notice of Election to again be covered by these agreements by January 31.Continue Reading Reminder: Most Webcasters Need to File With SoundExchange Minimum Fees and Many Need A Notice of Election of Webcaster Settlement Act Rates, All By January 31
The Battle Over TV Channel 6 and LPTVs Used for FM Radio Broadcasts
A controversy has bubbled up in connection with the FCC proceeding to set the date by which Low Power Television stations will be required to convert to digital operations. While the analog operations of full-power TV stations were mandatorily terminated in 2009, Low Power television stations and TV translators have not yet faced any end date for their analog operations – though the FCC recently suggested that the final date for analog broadcasting by these stations be set – perhaps as soon as next year. In comments filed in the proceeding to set the end date, the question of when to terminate analog broadcasting became tangled in another issue – whether Channel 6 LPTV stations should be allowed to continue to be used to broadcast FM programming. NPR suggested that the practice be terminated now, while Channel 6 licensees argued that this use was perfectly permissible under FCC rules, and that it provides a public interest benefit that should be preserved.
Channel 6 is immediately adjacent to the FM band. Analog television stations used an audio transmission standard that was very similar to that used by FM stations, and the audio from analog Channel 6 stations could be picked up by FM radio receivers. In many major television markets across the country, LPTV operators have taken their stations, optimized the audio for FM reception, and started broadcasts intended to be treated like radio stations – programming music or talk like a radio station, with the video programming being secondary to the audio output. Some have called these "Franken FMs", and many listeners don’t even realize that they are listening to a station licensed for video operation – just assuming that radio on 87.7 or 87.9 is a normal extension of the FM band. But this proceeding to end analog television broadcasting has brought the issue to the forefront.Continue Reading The Battle Over TV Channel 6 and LPTVs Used for FM Radio Broadcasts