The FCC yesterday released a Public Notice announcing the opening of its window for full-power and Class A TV stations not repacked during the incentive auction to improve their facilities – the first opportunity to do so since the FCC froze TV minor change applications in 2013 in anticipation of the incentive auction. We wrote about the coming of this window in our article here. The window will be open from November 28 through December 7.

The idea with the opening of this window is for full-power TV stations to get an opportunity to do upgrades now, to essentially get them out of the system before the window for LPTV stations to file for displacement channels takes place (see our article here on the LPTV displacement window). The fear was that, if this window did not give full-power stations an opportunity to file, LPTV stations displaced by the auction and repacking of the TV spectrum could end up being displaced after their displacement window on any new channels that they obtain by full-power stations seeking new facilities. While, certainly, LPTV stations can be displaced in the future, the hope is that this window will drain some of the demand out of the marketplace to hopefully limit LPTV displacements in the future.

Last week, the FCC issued an Order and Consent Decree agreeing to end an investigation of a big operator of LPTV stations that had allegedly applied for new LPTV stations in a 2009 FCC filing window where applications were restricted to rural areas, obtained construction permits for those stations, and, through a series of minor change applications, moved a number of those stations to larger markets. The FCC stated that the licensee would temporarily construct a station and file an application for a license, and, when the license was granted, the station would go off the air. Then applications for minor changes to move these stations up to 30 miles away would be filed, when the process was repeated, allowing some stations to move hundreds of miles from where they were initially granted, to larger more urban communities where applications could not have been filed in the initial application window. The Commission noted that the applicant maintained permanent facilities for only about 50 of over three hundred authorizations received.

In connection with a sale of the licensee company, the FCC required that the licensee pay a penalty of $1,500,000 and forfeit about 30 licenses to settle the case finding that the certifications in license applications that stations were constructed in accordance with their construction permits was not accurate when these stations were not permanently constructed. The successive applications were also found to frustrate the limits on site moves and on the limitations imposed in the 2009 window. This holding is similar to one made in a radio case about which we wrote here where the Commission required permanent construction to meet construction deadlines.  The Commission also has found that multiple or serial hops of an FM translator station to be an abuse of process where the station was never meant to be operated on any permanent basis at any of the intermediate sites (see our articles here and here). So, if you are building a station, build it permanently, and not as a means to moving it to some greener pasture 100 miles away.

The FCC yesterday released a Public Notice announcing a filing window from December 1 through December 21 for “long-form” applications for new translators that were filed in this summer’s window for Class C and D AM stations to seek new FM translators to rebroadcast their stations. The Public Notice also sets the procedures for filing in this window. The window is for the filing of complete Form 349 applications by applicants who were deemed to be “singletons,” i.e. their applications would not cause interference to any other translator applicant. The list of singletons is here. The long-form application requires more certifications and technical information than that which was submitted during the initial filing window.

After the long-form application is submitted to the FCC, the application will be published in an FCC public notice of broadcast applications. Interested parties will have 15 days from that publication date to comment or object. If no comments are filed, and no other issues arise, the FCC’s Audio Division is known for its speed in processing translator applications so that grants might be expected for many of the applications late this year or early next. Continue Reading FCC Announces Dates for “Long-Form” Applications by AM Stations that Filed for New FM Translators

While November is an odd numbered month in which there are no deadlines for EEO Public File or Mid-term Reports, and it is not the beginning of a new calendar quarter when Quarterly Issues Programs Reports are added to a station’s public file and Quarterly Children’s Television Reports are filed with the FCC, that does not mean that there are no dates of interest to broadcasters this month. In fact, there are numerous policy issues that will be decided this month, and filing dates both for television broadcasters and AM broadcasters seeking FM translators for their stations.

The biggest policy dates will be November 16, when the FCC holds its monthly meeting, with two major broadcast items on the agenda. As we wrote here, the FCC will be considering both the adoption of ATSC 3.0, the new television transmission system promising better mobile reception and more data transmission capabilities for TV stations, and the reconsideration of last year’s decision on the ownership rules, where the FCC is expected to repeal the broadcast-newspaper and radio television cross-ownership rules and loosen the restrictions on TV duopolies in markets where such duopolies cannot now be formed. Continue Reading November Regulatory Dates for Broadcasters – Including Broadcast Ownership, ATSC, Main Studio, EAS, TV Improvements and FM Translator Settlements

The FCC yesterday released a Public Notice announcing that it will be holding an information session on November 28, 2017 at 1 PM Eastern Time to familiarize broadcasters with the new Biennial Ownership Report forms. This information session can be viewed live online and will also be archived for viewing after the session (archive to be available here). As we wrote here, the FCC has extended to March 2, 2018 the due date for filing Biennial Ownership Reports, as it is in the process of developing a new form that will, hopefully, make it easier for broadcasters to complete the Form 323 and 323E Ownership Reports that must be filed by licensees once every two years. This information, which will present an overview of the new form, appears to be its official unveiling.

Note that this will be the first time that noncommercial broadcasters will be filing at the same time as commercial broadcasters (see our article here). Also, while commercial broadcasters will need to obtain an FCC Registration Number (FRN) for each person who has an attributable interest in a station, the FCC recently decided that noncommercial licensees need not get an FRN for each member of its governing board (as it would entail getting each member’s social security number). But noncommercial broadcasters still will need to get a Special Use FRN for all officers and directors reported on their ownership reports (see our article here).

In a decision this week, the Florida Supreme Court rejected claims by Flo & Eddie (of the 1960s band the Turtles) that there was a common law public performance right in pre-1972 sound recordings in the state of Florida (the opinion is available here). The Florida court, after examining numerous avenues of argument, concluded that the establishment of such a right was a legislative task. A judicial declaration that the right existed would, in the Court’s words, “have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit.” It would also upset settled expectations, as the determination that there was a right would effectively create a sound recording performance right greater than that which has ever been recognized in the US – far broader than the limited right granted under Federal law to cover digital performances of sound recordings. The Court went on to conclude that other claims raised by Flo & Eddie were similarly unavailing. The Court found that any reproductions made in the transmission process by Sirius XM (the defendant in the case) were not entitled to composition as they were transitory and made only for purposes of the transmission, not for public consumption (and as Florida law specifically permitted limited reproductions by radio broadcasters and the Court considered Sirius to fit that definition). And, as there was no violation of any rights of the plaintiffs, the use of the recordings could not constitute unfair competition or conversion.

This case reached the Florida Supreme Court when it was certified by the United State Court of Appeals which was reviewing a District Court decision reaching the same conclusion as did the Florida Supreme Court – that there was no performance right under state law for pre-1972 sound recordings (see our summary of the District Court decision here). The Supreme Court’s decision in Florida is similar to that reached by the Court of Appeals in New York (the state’s highest court), about which we wrote here, determining that there was no NY state law public performance right in pre-1972 sound recordings. As we’ve written many times, pre-1972 recordings are not governed by Federal law, which was only extended to cover reproduction rights in sound recordings in that year, leaving all pre-1972 rights in sound recordings with the states. Georgia and Illinois have reached similar decisions in slightly different cases (see our article here on the Georgia decision). In California, where a District Court found a public performance right in pre-1972 sound recordings, we are awaiting word from its Supreme Court as to whether such rights exist in that state (see our article here on the certification of this question to the California Supreme Court). Continue Reading Florida Supreme Court Rejects Public Performance Right in Pre-1972 Sound Recordings – What’s Next?

Yesterday, we previewed the FCC’s likely decision to significantly change its ownership rules for television owners – proposing to take actions including allowing TV duopolies in markets with fewer than 8 independent TV voices after the combination, allowing some combination of the Top 4 TV stations in certain markets, repealing the radio-TV cross-ownership rules, and repealing the newspaper-broadcast cross-ownership prohibitions. The FCC has now released the draft of the order to be considered at its meeting next month. It is available here.

Also on the tentative agenda (here) for the November meeting is the approval of the new standard for broadcast television – ATSC 3.0. The draft order would allow a voluntary transition to the new standard, with those TV stations that decide to convert being required to find a partner station in most cases so that viewers will be able to see the 3.0 station’s primary programming in the current ATSC 1.0 standard for at least 5 years. LPTV and TV translators would be exempt from this partnering obligation. The draft order is available here. We will provide more details on that draft order in the near future.

These items will be voted on by the Commission on November 16. They are controversial, so expect to see much debate on these items between now and the November meeting, and probably at the meeting itself.

According to the testimony given yesterday by FCC Chairman Pai at an oversight hearing before the House of Representatives Communications and Technology Subcommittee, the FCC is likely to release today a draft of its order on reconsideration of last year’s FCC decision on its Quadrennial Review of its broadcast ownership rules (the rules restricting the number of media outlets that one company can own in any geographic market). See our article here on the issues pending on reconsideration. According to Commissioner Pai’s testimony, the draft order will include provisions:

  • Eliminating the newspaper/broadcast cross-ownership rule
  • Eliminating the radio/television cross-ownership rule
  • Eliminating the 8-voices test of the local television ownership rules that limits TV duopolies to markets where there will be 8 remaining independently owned and programmed TV stations after the combination
  • Allows consideration on a case-by-case basis of combinations of TV stations that are ranked among the Top 4 stations in their market (combinations which are now prohibited)
  • Eliminating the attribution rule for television Joint Sales Agreements (JSA), meaning that stations could combine sales operations without those combinations being considered the same as common ownership
  • Establishing an incubator program to encourage minority ownership

This draft order will be considered at the FCC’s next open meeting on November 16. Watch for more details after the draft order is released.

At the FCC meeting yesterday, the FCC repealed, on a 3 to 2 vote, the main studio and studio staffing requirements for TV and radio broadcasters. The final order, here, was substantially unchanged from the draft we described when it was released last month. Broadcasters need no longer have a main studio or even locate employees in their service areas, but must continue to serve the needs of their community, reflect that service in quarterly issues programs lists, and maintain a toll-free number that will allow local residents to contact the station. Stations that have not completely converted to the online public file must also maintain a local paper file until the online conversion is complete. The changes for the most part become effective 30 days after they are published in the Federal Register.

The FCC, as part of its Media Modernization Initiative, also started a proceeding to abolish the requirement that TV stations with no ancillary and supplementary revenue (revenue from the digital transmission of non-broadcast services) file an FCC report on that revenue. As only about 15 stations had such revenue, to make the thousands of other TV stations to file reports to simply say that they have no such revenue made little sense. The Commission instructed its Media Bureau to consider suspending the requirement for stations with no revenue to file those reports on December 1. The Notice of Proposed Rulemaking is available here. We wrote about the draft Notice of Proposed Rulemaking here, which also addresses a second issue which will also be considered by the Commission. Continue Reading FCC Approves Repeal of Main Studio Rules and Starts Proceeding to Examine Broadcast Public Notices and Filing of TV Ancillary and Supplementary Revenue Reports

For well over four years, television stations have not been able to file applications to upgrade their technical facilities as the FCC froze such applications as it wanted to preserve a stable database of TV facilities while it conducted the Incentive Auction and implemented the repacking of the TV band. For TV stations affected by the repacking, the FCC has opened two windows allowing repacked stations to change and maximize their technical facilities on their new channels, the second of which will end on November 2 (see our article here). It was generally expected that the next window to open would be one for the filing by LPTV and TV translator stations displaced by the repacking of full-power stations to find new channels on which they could operate. However, the FCC was approached by LPTV and translator advocates who worried that these stations would file their displacement applications, get construction permits and start to construct new facilities on new channels, only to again be displaced when the FCC lifted its freeze on the filing of applications for new facilities by full-power stations not affected by the repacking. They feared that the four years of pent up demand would cause a flood of applications by full-power stations, some of which might displace LPTVs and TV translators on their new displacement channels. To relieve some of that pent up demand by full-power and Class A stations not affected by the repacking, before the LPTV/translator displacement window, the FCC’s Media Bureau yesterday issued a Public Notice announcing that it will temporarily lift the freeze to allow applications by full-power and Class A TV stations that were not affected by the repacking.

The Public Notice does not specify the date for this lifting of the freeze. Instead, that date will be announced in another public notice specifying the limited period during which the freeze will be lifted.  Applications filed after the lifting of the freeze will apparently be processed in the same way as normal minor change applications, on a first-come, first-serve basis. The lifting of the freeze will also allow the FCC to process construction permit applications filed by TV stations before the imposition of the freeze in April 2013 – applications that have been sitting at the FCC since that time. Continue Reading FCC Announces That It Will Lift Filing Freeze on TV Station Modification Applications before LPTV/TV Translator Displacement Window