At the NAB Convention, Chairman Pai announced that the promised windows for AM stations to apply for new FM translators would open this summer (see our article here). It now looks as if that promise is about to become a reality as on Friday the FCC added to its list of “items on circulation” a Public Notice announcing that window. Each week, the FCC updates this list of items on circulation (see the list here). These “items” are the orders that have been written by the FCC staff and are now being reviewed by the Commissioners themselves.  Once these items are reviewed and approved, often in a matter of days or a few weeks, they are released to the public. So it looks like the formal announcement on the dates for the windows will be coming very soon.

If adopted and released to the public by the FCC in the next few weeks, that announcement will likely set a date for filing for these translators – probably opening the first window about 60 days after the notice is released. Applications would then be filed in the window set for these filings. This could mean that the first window could open as early as July.  The Commission will be opening two windows. The first will be for Class C and D AM stations. Once those applications have been filed, a second window will open for Class A and B AM stations. Only AM stations that did not file for a translator relying on the 250 mile waivers available last year (see our article here) are eligible to apply for translators in these upcoming windows. Stations that acquired translators through other means can still apply for a new translator in this window. However, only one new translator will be available in this window for each AM eligible to file. Continue Reading Announcement of FCC Window for AM Stations to File For New FM Translators Coming Very Soon

The FCC recently issued a declaratory ruling (which we summarized here) addressing the requirement that broadcasters widely disseminate information about all of their job openings in such a way as to reach all of the groups within their communities. The recent FCC decision stated that a broadcaster can now rely solely on online sources to meet the wide dissemination obligation. In the past, the sole reliance on online sources would have brought a fine from the FCC, so this is a big change for broadcasters – one which recognizes the realities in the world today as to where people actually go to find information about job openings .

This decision does not end all other EEO obligations imposed by the FCC rules. The Indiana Broadcasters Association recently asked me 5 questions about that new decision to highlight some of the other obligations that still arise under the FCC’s EEO rules. Here is that discussion of the continuing obligations under the EEO rules:

  1.  The FCC recently issued a Declaratory Ruling about how Job Openings should be posted.  What’s changing?

The FCC is now permitting broadcasters (and cable companies) to meet their obligation to widely disseminate information about their job openings solely through the use of online recruitment sources. In the past, broadcasters were fined if they did not, in addition to online sources, use recruitment sources such as community groups, employment agencies, educational institutions and newspapers to solicit candidates for virtually all open positions at any station. Under the FCC’s new ruling, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings, as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community. Continue Reading 5 Questions on the Meaning of the FCC’s Recent Ruling on Online Recruiting – How Does it Change a Broadcaster’s EEO Obligations?

Several articles published at the end of last week suggested that the FCC, based on a statement by FCC Chairman Pai on a radio show, would be investigating comments made by Stephen Colbert on a program last week. The comments, suggesting a sexual act between President Trump and Vladimir Putin, has raised much controversy and apparently resulted in the filing of a number of complaints at the FCC. However, just because the statement was controversial does not mean that the FCC has any jurisdiction to do anything about it consistent with its precedent and constitutional protections which governs speech generally. The Chairman’s statement was no doubt nothing more than an acknowledgement that the FCC would deal with complaints that were filed, rather than any implication that there was likely to be any penalty for the statements of the TV host. Why?

The Colbert Show starts at 11:30 PM on the east and west coasts. Even in the rest of the country where it runs earlier, it begins at 10:30. Under the FCC’s policy on indecency, programs airing after 10 PM and before 6 AM are considered to be in the “safe harbor” where children are unlikely to be in the audience, so indecent programming – programming that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium” – is not prohibited. In other words, during these overnight hours, stations can run material that is sexually oriented and which would normally not be acceptable on television – allowing more adult oriented content to run even on broadcast stations. As the Colbert program ran during this safe harbor, the FCC’s indecency rules would not apply. But what about obscenity? Continue Reading FCC to Investigate Steven Colbert? – Much Ado About Nothing

Earlier this week, we wrote about a number of proceedings affecting FM translators, including the Petition for Reconsideration (available here) of the FCC decision relaxing the rules governing the locations at which AM stations using FM translators to rebroadcast their signal can locate those translators (see our summary here). Notice of that Petition has now been published in the Federal Register, setting May 19 as the date for formal oppositions to the petition, with replies due May 30. As many AM stations with FM translators have already filed applications relying on the new rules, there are bound to be oppositions to this petition.

Prometheus argues that the Commission, when it decided to allow AM stations to locate FM translators so that their signals did not exceed the greater of 25 miles from the AM site or the 2 mv/m contour of the AM station, whichever is greater (instead of the lesser of those contours, as had been the prior rule), had not given proper notice of its proposed rule change, as the rule as adopted did not contain an absolute limit on the distance from the AM station that the FM translator could reach, when the FCC had initially proposed a 45 mile limit. Prometheus also claims that LPFM stations that are displaced by new FM stations could be blocked in their site selection by this greater latitude in site selection afforded to AM licensees (though, as we wrote here when Prometheus asked for a stay of the new rules, it is impossible to prove such an assertion, as it is possible that, in any particular case, a translator site closer to the AM station could actually be more preclusive to a particular LPFM filing than one further from the AM site). In any event, broadcasters can voice their opposition to the Prometheus petition by the May 19 deadline.

In odd years like 2017, most broadcasting stations don’t think about the FCC’s political broadcasting rules. But they should – both for special elections to fill open seats in Congress, and for state and local political offices.  Recently, I have received a number of calls about elections to fill seats in Congress that were vacated by Congressmen appointed to positions in the Trump administration. For instance, the race in Georgia to fill HHS Secretary Tom Price’s seat has received much national attention. But there is also a race being fought now to fill Interior Secretary Ryan Zinke’s seat in Montana. Obviously, for Federal elections like these, broadcast stations serving these districts need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities. But in other parts of the country where there are no special Congressional elections, there are all sorts of political races taking place in this off year and, as we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

Some of these races will be high-profile, like the governor’s elections in Virginia and New Jersey and several big-city mayoral races. Some races may be much more locally focused on elections to school boards or town councils. Stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.  Continue Reading Reminder – FCC Political Rules Apply to Off-Year Elections for Vacant Congressional Seats, and for State and Local Offices

For well over a decade, since the FM translator filing window of 2003, translators have been a controversial subject. While they have become more important to the broadcast ecosystem – especially as they now rebroadcast AM stations and HD-2 channels of FM stations – their use continues to be controversial, both because of the interference to other stations that is sometimes caused by new translators, and because of their perceived conflicts with LPFM applicants. With the recent announcement from FCC Chairman Pai that the first window for applications for new translators to serve AM stations that did not benefit from last year’s 250-mile waiver window will be accepted this summer, translators will only become more important to broadcasters (see the Chairman’s comments in his NAB speech, the text of which is here). Several recent actions indicate that policy issues dealing with translators will continue to be debated for at least the foreseeable future.

Two recent filings attempt to address the issue of interference between new or relocated translators and full-power stations. Issues arise from time to time, including some high-profile disputes in major markets, where new translators create, or are alleged to create, interference to full-power stations. Under the current FCC rules, any time a new or relocated translator creates interference to any regularly used FM signal, even outside of the usually protected contour of the full-power station, the translator is required to cease operations unless the interference can be remedied. In such situations, the translator licensee acknowledges the interference and changes facilities or channels to remedy it. But there are other cases where the reported interference objections have been challenged by the translator operator, as the alleged interference will occur far from the station claiming the interference, in areas where the translator operator suggests that no reliable FM signal from the protected station could really be received. Continue Reading FM Translators Still Contentious – New Filing Window, Suggestions for Resolving Interference Complaints and a Request for Reconsideration of Relaxation of Rules on the Location of FM Translators for AM Stations

May is one of the few months without the normal list of quarterly filings and EEO public file reports.  But, just because there are none of these regular filings due, that does not mean that the month will be a quiet one for broadcasters on the regulatory front.  In fact, far from it.  There are obligations for television broadcasters in connection with the incentive auction and the subsequent repacking of the TV spectrum, an FCC meeting that will start two proceedings that could dramatically reduce the regulatory burdens of broadcasters, and comments due on the FCC’s proposal for the next generation of television broadcasting.

In connection with the incentive auction, on May 11, stations that are relinquishing their channels in exchange for compensation from the FCC must file an FCC Form 1875 detailing where payments for that relinquishment will go.  After that information is received and processed, the FCC will send an email to the payee asking for bank account information that must be entered into the “CORES Incentive Auction Financial Module.”  Stations looking for their auction payouts need to observe these details so the FCC knows where to send their money. Continue Reading May Regulatory Dates for Broadcasters – Incentive Auction, ATSC 3.0 and Broadcast Deregulation

In his speech at the NAB Convention (available here), Chairman Pai promised to pursue a broadcast regulatory regime that made sense in today’s competitive media environment. He promised to move quickly to eliminate a number of the unnecessary broadcast rules, and specifically to repeal the main studio rule (see our articles here and here about the current requirements for the operation and staffing of the main studio).  Yesterday, the FCC took its first steps to quickly fulfill those promises, releasing two draft orders to be considered at its May 18 meeting, one to repeal the main studio rule and the second announcing the opening of a proceeding to review all of the other rules that govern broadcasters except the ownership rules that are already under consideration in other proceedings (see our posts here and here about some of the ownership rules already under review).

The draft Notice of Proposed Rulemaking seeking to eliminate the main studio rules asks a number of questions seeking support for the FCC’s tentative conclusion that the elimination of the main studio rule is in the public interest.  The NPRM asks questions and seeks information including:

  • how much money the elimination of the main studio rule would save stations,
  • the public interest benefits that would result from any monetary savings (e.g. better programming),
  • information about how often the main studio is currently visited by community members and why they visit,
  • information about how community members communicate with broadcasters with complaints or suggestions about broadcast operations,
  • whether stations can still serve the issues faced by their communities without having a physical presence,
  • whether abolition of the main studio rules in any way abrogates the station’s obligation to serve its local community that would undermine the FCC’s obligations under Section 307(b) of the Communications Act to allocate stations to communities that need service,
  • how the elimination of the rule would work in connection with the requirement that radio stations move their public file online (e.g. should an online public file be a precondition of abolishing the studio or can the paper file be maintained somewhere else if the studio rule is abolished before next March when the online public file is mandatory for all stations),
  • whether to continue to require that stations have a local phone number accessible to residents of their community of license, and
  • specific inquiries as to how Class A TV stations would meet their obligations to air local programs if they have no main studio.

Assuming the FCC adopts the Notice of Proposed Rulemaking at the May 18 meeting, public comments on the proposal and the questions asked by the FCC will be 30 days after the NPRM is published in the Federal Register.  That would likely put comments in late June or early July, with reply comments 15 days later. Continue Reading Making Good on Deregulation – FCC Proposes to Eliminate Main Studio Rules and Review All Other Broadcast Regulatory Requirements

We wrote here about the Congressional proposal to make the Register of Copyrights a Presidential appointee subject to Congressional approval, rather than a selection of the Librarian of Congress. That bill, HR-1695 (an updated version of which is available here), despite some expressed concerns from certain advocacy groups about the potentially making that position more partisan and political, was approved this week by the House of Representatives on a 378 to 48 vote. The next stop for this reform effort will be the Senate, where thus far legislation to accomplish that end has not been approved. Watch for further action there in coming months.

Broadcasters and advertisers should take note of the more than 90 warning letters that the FTC sent out this week as a reminder of the need to disclose material sponsorship connections in social media promotions and endorsements.  The FTC has since 2009 announced a policy that any online content for which anything of value has been received must disclose that consideration – even social media posts (see our article here about that policy).  This is in the nature of the FCC’s sponsorship identification rules for broadcast content.   That same policy statement addressed the need for those making personal endorsements to make these sponsorship disclosures.  The recent warning letters are notable not only for their sheer number, but also because the warning letters were addressed to marketers and social media “influencers” – the individuals whose social media followings make their endorsements valuable.  To date, the FTC has only named marketers (Warner Brothers Home Entertainment and Lord & Taylor) in its social media endorsement cases.  Although the FTC did not say who received warning letters, its press release noted that the letters were “informed by petitions filed by Public Citizen and affiliated organizations” in September 2016.

By directing warning letters to marketers and influencers, the FTC is sending a firm reminder that both sides of a sponsorship arrangement need to disclose their connection, “unless the connection is already clear from the context of the communication containing the endorsement.”  Specifically, the FTC advises influencers that they must “clearly and conspicuously” disclose any material connection with a marketer; and marketers, in turn, should ensure that the influencers they sponsor disclose their material connections. Continue Reading FTC Puts “Influencers” on Notice:  Disclose Marketing Relationships in Social Media Posts