As we accelerate toward next year’s planned TV incentive auction, it seems like there is news almost every day of interest to television broadcasters who may be affected by the FCC’s efforts to clear TV spectrum so that it can be repurposed for wireless broadband use and sold to wireless companies and the subsequent repacking of remaining TV stations into a smaller TV band. Some of the broadcasters most directly affected by the auction and repacking will be LPTV stations who, thus far, have been promised no compensation should their operations be displaced by the repacking of the TV band, and offered no promises that they will have channels on which they can operate after the auction. The issues for LPTV stations, and the FCC’s proposals to deal with them, were to be addressed at a webinar on Tuesday, but the session was cancelled when the Federal government shut down because of snow in the DC area. The FCC yesterday announced that the webinar has been rescheduled for next Tuesday, February 24 – details in the Public Notice here. We wrote about the FCC’s rulemaking looking at what to do with LPTV stations after the auction here.

One of the big questions that many broadcasters have asked since the FCC rolled out the recent Greenhill Report (see our article here), setting out expected opening prices that will be offered to TV stations to surrender their TV channel, was how many stations could actually expect to be bought out in any market. The NAB released a study yesterday, suggesting that in some markets, it is very likely that the FCC will not need to buy out any stations, whether the auction tries to clear 120 MHz (20 TV channels, the maximum that the FCC has looked at clearing) or only 84 MHz (which some have thought was a more realistic goal). On the other hand, in several large markets and in markets in congested spectrum areas near some of those large markets, the FCC may need to get more than half of the stations in those markets to give up their licenses. The NAB computations are taken from FCC data, and the NAB provides many disclaimers that this information may change as auction plans change over time as different assumptions are made, and also are very dependent on the number of participants in adjoining markets. But the study is nevertheless one that gives some broadcasters an idea of how likely it is for them to really need to be an auction participant. See the NAB explanation of their procedures here, and the complete market-by-market chart of likely TV clearing needs here. Continue Reading More Incentive Auction News – LPTV Webinar Postponed; NAB Study Looks At How Many Stations Per Market Will Need to Surrender Licenses for Successful Auction; More Auction Seminars Scheduled

The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16, and reply comments are to be filed by April 14. We wrote about the proposal here, including its suggestions to phase the obligation in by market size and to potentially exclude or delay the implementation for noncommercial radio operators (as noncommercial stations do not have as extensive a political file – and access to political broadcasting information is one of the motivations behind the FCC’s proposal to expand the online public file obligations).

While not specifically addressed in this notice, we note how various FCC proceedings on seemingly unrelated issues can sometime intersect in the issues they consider. As we wrote here, the FCC is considering classifying some online video providers as MVPDs. Seemingly, under the proposals advanced in the online public file proceeding, some of the new obligations could also end up applying to such video providers – who currently have no public file obligations whatsoever. One more thing for those companies to consider!

The FCC yesterday issued a Public Notice announcing the first set of EEO audits for 2015.  Letters to over 250 radio and TV stations went out asking for evidence of their compliance with the FCC’s EEO rules.  The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. We recently summarized the FCC EEO issues here, reminding broadcasters of the possibility of being audited, and of the upcoming deadlines for the filing of FCC Form 397 EEO Mid-Term Reports, which will give the FCC another chance to review station EEO performance.  In yesterday’s notice, the FCC released the form audit letter and list of stations that will be audited. Responses from the audited stations are due to be filed at the FCC by March 24. Licensees should carefully review the list of affected stations contained in the Public Notice to see if any of their stations have been selected for the audit. 

The audit letter requires all stations with 5 or more full-time (30 or more hours per week) employees to provide a significant amount of information about their EEO programs and recruiting efforts (including copies of their 2 latest Annual EEO public file reports and documentation backing up the efforts listed on those reports).  Even stations with fewer than 5 full-time employees need to report the names and positions of their employees, and provide any information about law suits, EEOC complaints or similar employment actions brought as a result of equal employment or discrimination matters.  Continue Reading FCC Announces EEO Audit of Over 250 Radio and TV Stations

With the recent release of the FCC’s report setting out the potential opening bids to buy out the spectrum of TV stations so that it can be resold to wireless companies for wireless broadband, station owners and operators around the country have many questions about how the auction will play out, and what they really might receive from any incentive auction.  As we wrote at the end of last month, the FCC has begun to hold seminars around the country to talk to TV broadcasters about the incentive auction, and in connection with the seminars, to schedule confidential private meetings to discuss the potential payout the broadcaster might expect should they decide to sell their spectrum. Yesterday, the FCC announced that these sessions are moving west – three are to be held in California the first week in March. 

These sessions will continue in the next few months in other locations across the country, probably including at the NAB conference in Las Vegas.  Station personnel and their advisors need to register for the information sessions, and schedule any private meeting they may want to have with the FCC staff to review their specific situation.  So contact the FCC at the addresses listed in the public notice if you plan on attending any of the California sessions.

A flurry of fines against broadcasters have come out of the FCC in the last week.  These fines highlight the scrutiny under which owners of broadcast stations can find themselves should an FCC Field Office inspector knock on their door.  If the FCC pays a visit and finds a violation, a station is often looking at a fine even if it quickly takes corrective action.  Let’s look at some of these fines and the issues raised by each.

First, a Regional Director of the FCC’s Enforcement Bureau yesterday released a $17,000 Forfeiture Order (a notice of a fine) to a Michigan AM broadcaster for having a fence around its tower that had “separated” allowing unfettered access to the site and for missing quarterly issues programs lists in the public file.  The FCC refused to lower the fine, despite the licensee’s arguments that the quarterly issues programs lists were in fact at the station but there was “confusion” as to where they were at the time of the inspection, and its argument that it should not be responsible for the fencing issue as it did not itself own the real estate or the towers. Continue Reading FCC Fines: $17,000 for Unsecure AM Tower Fence (Not Owning the Tower Site is No Excuse); $25,000 for Missing Quarterly Issues Programs Lists; $22,000 for Nonfunctioning EAS and Wrong Tower Coordinates

The FCC yesterday released a public notice extending the comment dates in their proceeding to regulate Online (or “over-the-top”) Video, particularly Internet video providers who provide multiple channels of linear video programming (programming streamed at the same time to all viewers, as opposed to on-demand video like that provided by Netflix or Amazon), in the same way that they regulate MVPDs (multichannel video programming distributors like cable and satellite TV).  We wrote here about many of the issues that are being discussed in this proceeding.  The new comment date is March 3, and the new date for reply comments is March 18. 

On Friday, the FCC released a new report by the investment bankers advising them on the incentive auction, Greenhill and Company.  This report summarizes proposed auction procedures, but also sets out, on a market-by-market basis, the expected opening bids to be offered to TV broadcasters for the surrender of their spectrum so that the spectrum can be repurposed for wireless broadband use.  And these numbers are high – seemingly meant to attract broadcasters to consider possible participation in the auction process.  The opening numbers suggested by this report range from a high offer of $870 million in New York City, to a couple of million even in the smallest TV markets. 

While this report, and the table of expected opening offers that is part of that report, are in a format similar very to the Greenhill report that was released several months ago (about which we wrote here), those two reports actually represent two very different numbers.  The report released in the Fall set out prices that stations willing to surrender their frequencies might be expected to actually receive in an incentive auction.  The numbers in this report are merely the opening offers that will be made to stations to surrender their spectrum.  If these numbers attract more broadcasters willing to surrender their spectrum than the FCC needs to meet their spectrum-clearing targets (as they quite well may given the numbers being proposed), then the Commission will lower the offer in subsequent rounds of the auction, and the FCC will continue to lower the bids until they receive willing sellers of just the right amount of spectrum necessary to clear the FCC’s targets (which are yet to be set) for spectrum to be resold to wireless users. Continue Reading FCC Releases Tentative Amounts for Opening Offers to TV Stations to Surrender their Spectrum in the Incentive Auction – and the Numbers Are High

The Copyright Office this past week released its Report following its study of music licensing in the US; a comprehensive report addressing a number of very controversial issues concerning music rights and royalties.  Whether its release during the week of the Grammy Awards was a coincidence or not, the report itself, which takes positions on many issues, is sure to initiate lots of discussion and controversy of its own.  The report was issued after two rounds of comments (the questions that were asked in each request for comments are detailed in our stories here and here) and three roundtables held in three different cities where representatives of music companies provided ideas on the questions asked (I participated in the Nashville session).  As detailed below, the report addresses some of the hot button issues in the music royalty space including the broadcast performance royalty, publisher withdrawals from ASCAP and BMI (see our article here), and pre-1972 sound recordings.

Before getting into the details of the proposals, it is important to note that the Copyright Office, unlike many other government agencies, does not itself make substantive rules.  Instead, it merely makes recommendations.  For any of the substantive proposals that it suggests in the Report to become law, Congress must act – which is never easy.  In the Copyright world, it is particularly difficult, as the rules and industry practices are so complex and often obscure, and where any change can have a very dramatic effect on some industry player or another.  Often, a simple change in the rules can take money from someone’s pocket and deposit into someone else’s.  Moreover, copyright is not an area where there are clear partisan divides.  Oftentimes, it matters more where a Congressman’s home district is than his or her party affiliation in their leanings on copyright matters. Continue Reading Copyright Office Issues its Report on Music Licensing – Issues Include Broadcast Performance Royalties, Publisher Withdrawals from ASCAP and BMI, and Pre-1972 Sound Recordings

A few weeks ago, we wrote about several recent cases where tower owners were fined for not having their towers lights working in the manner that was required by their licenses.  In another case released this week, the FCC’s Enforcement Bureau decided that a $20,000 fine was appropriate for a tower owner in Alaska whose lights were not working when the FCC inspected the facility (and the FAA had not been notified of the outage).  The FCC rejected arguments that the fine should be lower as efforts were immediately made to fix the lighting issues after the FCC notified the owner of the issue – finding that such post-notice efforts come too late to justify a fine reduction.  The Bureau also said that, as the tower owner was a large company, an upward adjustment of the fine, doubling a $10,000 base fine, was appropriate.  The decision found that, for the large telecommunications company that owned the tower, a smaller penalty would not be a deterrent to future bad conduct.  The decision warned other large companies that enhanced penalties should be expected so that the fines are not just a “cost of doing business.”

The decision should serve as a reminder of the seriousness with which the FCC views potential safety issues, and also a warning to large companies that their actions may result in larger than expected fines for violations of FCC rules that are discovered in the future. 

The incentive auction to repurpose part of the TV band for wireless broadband marches on, and activity takes place on an almost daily basis.  Last week, in providing the February Regulatory Dates for Broadcasters, we mentioned the dates for comments on the auction procedures, asking questions about the mechanics of the auction and how the pricing for stations to be paid for the surrender of their spectrum will be established.  This week, the Commission extended the comment deadline to February 20, and the reply comment date until March 13.  This is the second one-week extension of the comment deadline announced by the FCC – this one to give commenters more time to analyze the recent AWS auction, where wireless companies spent over $40 billion for spectrum, and any insights that auction might provide for the upcoming auction of parts of the TV spectrum to wireless users.

In addition, the Commission on Friday announced a May 29, 2015 deadline for the licensing of full power and Class A TV stations facilities in order for these facilities to be protected in the upcoming auction.  This is an issue only for a few full-power TV stations that were authorized facilities before the current TV Freeze or in the very limited circumstances where stations received a waiver of that freeze (mostly stations moving off of Channel 51 to protect wireless users).  For Class A stations, it is a bigger issue, as protection will only be afforded to those stations that are licensed in digital by the May 29 deadline.  Class A stations have until September to transition to digital (and may well have longer should the FCC adopt its proposal to extend the digital conversion deadline, a proposal about which we wrote here).  But, according to the Public Notice, only those already operating in digital will be protected.   

The incentive auction marches on, so watch carefully as issues develop.