With the shifting dates for the upcoming Presidential primaries, questions have arisen as to when broadcast stations must start to give Lowest Unit rates to candidates for these elections. As it appears that, in some states, the primaries or caucuses for the Republicans and the Democrats may be held on different dates, the Lowest Unit rate
Another Indication that LPFM Could Get More Protections
Last week, FCC Chairman Kevin Martin was quoted in several trade press reports as having told the House Small Business Committee that his office was working on an item to be circulated among the other commissioners that would ensure low power FM ("LPFM") stations "would have reasonable access to limited radio spectrum." So what does this
FCC Affirms NCE Application Limit of 10 Stations
In an Order released today, the FCC affirmed its tentative decision limiting the number of noncommercial FM applications that can be filed by one party in the upcoming window for new reserved educational band stations. Applications for these stations can be submitted starting on Friday. See our post, here, for details on the filing requirements. The
Avoiding Liability for Websites that Post User Generated Content
Website operators planning to allow visitors to post their own "user generated content" can, for the most part, take solace that they will not be held liable for third-party posts if they meet certain criteria. The Communications Decency Act provides protection against liability for torts (including libel, slander and other forms of defamation) for website operators for third-party content posted on their site. The Digital Millennium Copyright Act provides protection against copyright infringement claims for the user-generated content, if the site owner observes certain "safe harbor" provisions set out by the law. The requirements for protection under these statutes, and other cautions for website operators, are set out in detail in our firm’s First Amendment Law Letter, which can be found here.
As detailed in the Law Letter, the Communications Decency Act has been very broadly applied to protect the operator of a website from liability for the content of the postings of third parties. Only recently have courts begun to chip away at those protections, finding liability in cases where it appeared that the website operator in effect asked for the offending content – as in a case where the owner of a roommate-finder site gave users a questionnaire that specifically prompted them to indicate a racial preference for a roommate – something which offends the Fair Housing Act. However, as set forth in the Law Letter, absent such a specific prompt for offending information, the protections afforded by this statute still appear quite broad.Continue Reading Avoiding Liability for Websites that Post User Generated Content
FCC Plans More Testing of White Spaces Devices to Operate Within the Television Spectrum
On Friday, the FCC issued a public notice promising further testing of "white spaces" devices. As we’ve written before, these devices are being promoted by many of the largest tech companies as ways to make more efficient use of the television spectrum by using low power wireless devices within that spectrum in places where those devices would not interfere with the operation of television reception. The National Association of Broadcasters and other television groups have opposed allowing such operations for fear that they will cause interference to broadcast stations. Especially during the digital transition, when listening habits are just being worked out and new digital televisions are just being purchase and installed by users, and because interference to a digital television station does not result in "snow" as in the analog world, but instead no picture at all, broadcasters fear that these devices could severely impact the success of the digital transition.
In August, as we wrote here, the FCC released the first results of its interference studies, finding the potential for severe interference to television broadcasters. While broadcast groups trumpeted these tests as proof of their fears, many of the tech companies claimed that the testing was flawed, using at least one device that was malfunctioning. The tech companies essentially asked for a "do over," while the broadcasters argued that, even if a tested device was malfunctioning, that malfunction itself was enough to demonstrate that the devices are not reliable enough to protect television operations during this sensitive transition.Continue Reading FCC Plans More Testing of White Spaces Devices to Operate Within the Television Spectrum
Who is a Local Applicant for an NCE Station?
With the filing window for new noncommercial FM radio stations opening this coming week (see our summary of the process, here), some potential applicants may be wondering who qualifies as an established local organization entitled to points in the comparative analysis that takes place if applications that are mutually exclusive (both cannot be granted without creating prohibited interference) are filed during the window. In a decision released this past week, the FCC clarified the rules as to what constitutes a local applicant – holding that simply having a mailing address for a headquarters in the proposed station’s service area is not sufficient.
In this case, an applicant claimed to have an established local presence necessary to qualify for points as a local applicant based on its "headquarters" which it said had been located within 25 miles of the proposed city of license for two years prior to the relevant date for evaluating the applicant’s comparative attributes, as required by the FCC’s rules. However, when a competing applicant visited the office building in which this supposed headquarters was located, there was no indication in the building directory or on any signs on any door in the building that the organization was located there, and no building personnel had any familiarity with the organization. The applicant justified its claimed local credit by claiming that the "headquarters" was an office at the specified location that housed a number of businesses and organizations with which one of its Board members was affiliated, and that all of those businesses could not be listed on signage or on the building directory. The Commission found that the mere presence of an office was insufficient to qualify for credit, citing the Order adopting the NCE point system which said that the headquarters must be the organization’s principal place of business or the principal residence of one of its members, and not just a post office box, lawyer’s office, branch office or vacation home. To qualify for points as an established local organization, the applicant must have activities and familiarity with the local service area that will permit it to "hit the ground running" in serving the public.Continue Reading Who is a Local Applicant for an NCE Station?
Pushing Too Hard for Publicity on the Digital Television Transition?
The Digital Television transition, as we’ve written before, is becoming a political hot potato, with everyone seemingly preparing to point the finger at others if the transition does not run smoothly. In recent weeks, we’ve seen Republicans and Democrats alike taking their shots at broadcasters and the FCC – looking for likely sources of blame if there are a significant number of viewers who have a television signal that is missing in action on February 18, 2009, the day after the end of the transition. Many are blaming television broadcasters for not pushing the transition more in Public Service Announcements and other announcements on their airwaves. Some suggest a set of mandatory public service obligations to inform the public (see details here). But would such a push at this time do any good when the availability of converter boxes is limited, and the price of digital-only television sets still high?
In recent actions, Commissioner Copps wrote an op-ed piece in USA Today last week sounding an old theme – more public interest obligations for digital television (see our post on the pending proposals, here) – and a newer one, that broadcasters should now be running public service announcements that inform the public of the steps that they need to take to be ready for the transition (either subscribing to cable or satellite or getting a digital television or converter box). A similar point about the publicity for the transition – perhaps even mandatory PSAs – was made in a recent letter from two Republican members of the House Energy and Commerce Committee, Joe Barton and Fred Upton, to the FCC. While there is no question that broadcasters need to promote the digital transition as the public is woefully uninformed of what is coming, does promotion do any good if the hardware is not available?Continue Reading Pushing Too Hard for Publicity on the Digital Television Transition?
FM Translators for AM Stations – Start Your Engines
On an NAB Radio Show panel that included the news that LPFM licenses are, in some cases, holding up the processing of certain FM applications while solutions to potential interference to the LPFM station are sought (see out post here), a representative of the Audio Services Division of the FCC’s Media Bureau also revealed that
LPFM Slowing Processing of Full Power FM Stations
During a panel at the NAB Radio Show, FCC Audio Services Division Chief Peter Doyle was asked a question about the processing of FM applications filed under the new simplified process for upgrades in their technical facilities and for changes in their cities of license (see our post here for details about that process). The question dealt with rumors that the processing of certain FM applications were being delayed if the proposed upgrade would cause interference problems to any LPFM stations which would threaten their existence. We have written about our concerns that such a policy was possible, here. According to the response yesterday, these delays are indeed taking place – meaning that LPFM stations that are supposed to be secondary services which yield to new or improved full-service stations are now blocking improvements in the facilities of these full-power stations.
Doyle explained that, at the moment, there is no policy of denying the full-service station’s application – but these applications are being put on hold if they would impede an LPFM’s ability to continue to operate in order to study options as to how the LPFM service might be preserved through a technical change or through agreements to accept interference. While no final determination has been reached as to what will happen to the applications if there is no available resolution to the LPFM interference issue, he pointed to the pending rulemaking (pending for almost two years) that would give LPFM’s higher status, and in effect allow them to preclude new or improved full-service operations. There was some indication that these actions were being taken pursuant to the potential policies set out in that Notice of Proposed Rulemaking – even though these policies were simply proposals advanced for public comment and have not yet been adopted by the full Commission.
Continue Reading LPFM Slowing Processing of Full Power FM Stations
One Sign That Broadcasters Are About to Become Political Footballs – Obama Suggests Shorter Broadcast License Terms and Less Consolidation
At last Thursday’s Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama. According to press reports, the statement expressed the candidate’s positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation. These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here. While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year. The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.
Broadcasters make easy targets for politicians as everyone is an expert on radio and television – after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public. But those in Congress (and on the FCC) have the ability to do something about it. And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important. We’ve already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit’s decision throwing out the FCC’s fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines. Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.Continue Reading One Sign That Broadcasters Are About to Become Political Footballs – Obama Suggests Shorter Broadcast License Terms and Less Consolidation