In a case decided last week, the FCC decided to clarify its policies on typos in FCC applications for radio stations.  While one might not think that a typo is such a big idea, in connection with FCC application filing windows, when multiple applicants may be seeking the same frequency or channel in the same general location, and only one application can be granted, it can be crucially important.  The decision cites numerous cases where applicants typed in one set of coordinates, and those coordinates were different than what could be derived from information elsewhere in the application (e.g. from the coordinates of ASR for the registered tower on which the applicant planned to locate its antenna).  To clarify its policies, the Commission stated that, in the future, any typo in site coordinates in the “Tech Box” of an application would be given full effect, even if the correct coordinates could be discerned from other information in the application if the correction of the coordinates would prejudice any other application by another applicant.  So, where there are mutually exclusive applications for the same channel, and one has a typo in its Tech Box listing coordinates that would place the proposed stations in a location that would not work for the given channel (or would be less favorable in a comparative analysis), the typo will cause that applicant to be dismissed. 

This decision was made in the context of a number of applications for new noncommercial FM stations filed in the last noncommercial FM window.  While in this case, the FCC reinstated the applications with typos as its policy on typos had been ambiguous, it made clear that the applicants would not be treated so leniently in the future.  The Commission also made clear that this policy would apply to any radio application using FCC Form 301 (the construction permit application for commercial FM stations), Form 318 (application for construction permit for LPFM stations), or Form 340 (application for construction permit for noncommercial FM stations).  Specifically, the Commission will rely on the antenna location coordinates specified in Item 3 of the FCC Form 340 Tech Box for NCE stations, in Item 2 of the FCC Form 318 Tech Box for LPFM, and in the Tech Boxes of FCC Form 301 for full-power commercial stations (for AM: Section III, Item 4b for daytime coordinates, Item 5b for nighttime coordinates, and Item 6b for critical hours coordinates; for FM: Section III-B, Item 3 for antenna location coordinates and Item 4 for proposed allotment or assignment coordinates).  The information in these application sections (or in any equivalent form adopted in the future) must be accurate, as that will be the information on which the FCC relies to process the application no matter what may be stated elsewhere in the application.  So be careful in completing your applications, or your application may face the consequences. 

The FCC adopted proposed auction procedures for its incentive auction at its meeting on Friday, and thus far has released a Fact Sheet on these procedures by which it plans to buy back spectrum from broadcasters and resell it to wireless companies for wireless broadband uses.  The tentative procedures, along with the recent “Greenhill Report” setting possible prices to be paid to television stations who are willing to surrender their channels for the FCC to resell to wireless companies (see our summary here), are setting the stage for a series of meetings with broadcasters to attempt to convince enough to participate in the auction to satisfy the FCC’s goals for the auction – goals that also became a bit clearer from Friday’s releases.  Further information on the auction procedures is expected soon in a more detailed Public Notice fleshing out the proposals outlined in the Fact Sheet so that comments can be filed by the end of January. 

The fact sheet is not the detailed notice of auction procedures that some broadcasters may be familiar with from participating in past broadcast auctions – that will apparently come soon in the Public Notice that it summarizes.  But it does provide an outline of proposed general principles that will be applied to the incentive auction.  Initially, it proposes that the FCC would set opening prices for each station – prices at which the FCC would offer to pay the licensee to give up its spectrum.  The prices would be set based on an analysis of two factors: (1) the impact that the station would have on the repacking of the broadcast spectrum after the auction because of the interference that it causes and (2) the population covered by the station.  If a station agrees to move to the VHF band instead of surrendering its licenses altogether, it would receive somewhere between a third and a half of the opening price if it accepts a high VHF channel, and between 67 and 80% of the opening price for a low VHF channel.  According to the fact sheet, the prices that will initially be offered to the broadcaster will be initially set high, and will be lowered as the auction progresses until the prices reach a point where there are just enough broadcasters willing to take the lowered offer to clear the amount of spectrum that the FCC needs to fill the demands of the wireless users.  There has also been introduced the concept of a “dynamic reserve price,” setting a limit on how much the FCC is willing to pay some stations for giving up their spectrum, which could conceivably result in the amount that they are offered being lowered even when it is known that they cannot be repacked into the amount of the spectrum that remains available in the smaller post-auction TV band.   How much spectrum must be cleared for the auction to go forward? Continue Reading Putting Details to the Incentive Auction – FCC Asks for Comments on Fact Sheet on Auction Structure, and Prepares for Meetings with Broadcasters

In 2011, licensees of FM translators who wanted to move those translators to areas where there was a need for their service thought that the FCC had done a great thing by authorizing the use of the “Mattoon” waiver (see our article here).  The Mattoon waiver allowed the processing of an FCC application to move the location of a translator as a minor change (meaning that it could be filed at any time, rather than having to wait for a window for the filing of major changes and new translator applications – the last of which opened in 2003) if the current and proposed interfering and protected contours of the stations overlapped.  Without the waiver, the rules deem a minor change to occur only when the protected 60 dbu contour of the station from the proposed and exiting sites overlap, allowing much smaller moves. But, as we have written before, the FCC now seems to be backing off the use of these waivers, and two recent decisions raise the question of whether the policy is doomed (as the Commission proposed in its AM improvement proposals, which we summarized here).

The use of the waiver in many cases eliminated the need for multiple “hops” of translators to get them from existing locations to the sites at which a broadcaster wanted to use them to provide service.  These hops would move the translator from the locations at which it was licensed to a new site, only to file another application as soon as the initial move was granted to move the translator yet again to get them to the location where a broadcaster wanted to use them to provide service.  In some cases, multiple intermediate hops were necessary to move the translator to the site at which its use was ultimately desired.  The Mattoon waiver allowed many site moves to be accomplished through a single application rather than requiring multiple hops, each of which cost the broadcaster time and money in filing multiple applications and in actually building the translator at multiple sites, and also saved the FCC the time and effort to process each of the applications necessary to approve these intermediate stops for the translator.  Continue Reading The End of the Mattoon Waiver? – FCC Decisions Confirming Its Use Only for the Rebroadcast of AM Stations and Prohibiting Intermediate Site Changes

Perhaps Sunday’s anniversary of Pearl Harbor made the FCC want to make this week one which concentrated on emergency communications issues, or perhaps it is just a coincidence.  But the FCC has been active in the past 7 days dealing with emergency communications related items for broadcasters.  On Wednesday, it issued a consent decree by which a broadcaster agreed to a $46,000 fine for the use of EAS tones in a commercial message. This decision follows on the heels of an investigatory letter sent to a satellite radio programmer about the apparent use of a simulated EAS tone in a commercial message when, of course, there was no real emergency.   On Monday, there were two fines for non-operational EAS receivers and EAS recordkeeping failures.  At the end of last week, comments were filed in an FCC proceeding looking at the retransmission of EAS alerts in non-emergency situations, such as when a tone is included in programming on a station, and what can be done to avoid those alerts being sent throughout the system.  Comments are also due by the end of the month on suggested best practices on security for the EAS system, in light of the many issues that have arisen with the hacking of EAS receivers.  Here is a quick look at each of these issues.

The two most recent decisions highlight the severity with which the FCC is treating the use of EAS tones – real or simulated – in non-emergency programming.  We have written about past cases where the FCC has issued very substantial fines for the use of such tones in nonemergency situations, here and here.  In the decision released on Wednesday, the licensee of a Michigan radio station admitted to having broadcast ads for a storm-chasing tour which contained the EAS warning tones.  The National Weather Service received complaints, and in turn filed a complaint with the FCC.  The Consent Decree does not provide much more information, but to indicate that the commercial containing the EAS tones was broadcast on only a single day.  A $46,000 fine for a one-day violation demonstrates the gravity with which the FCC views these violations.  And it is a sense of importance that attaches not just to licensees, but to programmers as well. Continue Reading A Week of Emergency Alert System Actions at the FCC – Fines Including One for $46,000 for EAS Tones in a Commercial, and Reviews of Best Practices for the System

We are often asked by television broadcasters if specialty programming – particularly local programming, like a local church’s broadcast of its Sunday morning church service – is covered by the FCC’s closed captioning obligations.  In a decision released on Friday, the FCC staff denied the request of a church for an exemption from the rules requiring the closed captioning of most television programming, and may have helped to make clear an answer to those questions.  This decision also helps to clear up a big question that has been hanging over such programs, for over 3 years since the FCC reversed dozens of prior waivers granted by its staff to nonprofit groups claiming that the captioning would be economically burdensome on their operations (including the waiver that had been granted to this church).  So what factors did the Commission review in denying this “economically burdensome” waiver request?

In 2011, the Commission stated that its staff had to consider the overall circumstances of each petitioner in evaluating economic waivers of the captioning rules, and could not simply rely on the fact that the petitioner was a nonprofit organization the FCC.  After revoking the waivers, the Commission asked the groups whose waivers were revoked to refile their requests with greater detail and support, not simply relying on the fact that the proponent was a nonprofit organization.  Factors to be considered in evaluating any claim that the captioning obligation was economically burdensome include: (1) the cost of the closed captions for the programming and attempts of the programmer to find cheaper sources of captioning; (2) the impact of the captioning obligation on the operation of the provider or program owner; (3) detailed information on the financial resources of the provider or program owner including income and expense statements for the prior two years; (4) attempts to get outside sponsors for the programming or support from the station on which the programming is to be broadcast; and (5) the type of operations of the provider or program owner.  In applying these factors in the decision released on Friday, the FCC staff concluded that the church had not justified a waiver because it had sufficient funds from which to pay the cost of the captioning.  Continue Reading FCC Denies Closed Captioning Waiver for Church Service – Clarifying New Standards on “Economically Burdensome” Exceptions to Captioning Requirements

On Friday, the FCC released an Order and Consent Decree by which Journal Broadcasting agreed to pay a fine of $115,000 and to enter into a compliance program to settle complaints that it had not adequately identified that a program aired on its Las Vegas TV station was sponsored by a local car dealership.  According to the FCC press release issued at the same time as the Order and Consent Decree, the program was labeled a “Special Report,” was hosted by a station employee who stated that she was “reporting on behalf of Channel 13,” was made to look like a news report (with the reporter interviewing various employees of the dealership about their liquidation sale), and was run immediately adjacent to the local news.  The Press Release stated that this action was important to insure “transparency” where consumers are not misled as to who is trying to persuade them about commercial product.  “[A] pseudo news report invites viewers to rely on their perception of the station’s independence and objectivity when, in fact, the message has been bought and paid for by an undisclosed third party,” stated the FCC in the press release.

While the licensee argued that the context of the program made clear that it was a sponsored ad, the Commission’s insistence on the payment of a fine here is evidence of much the same thinking as the decisions the FCC has reached in past cases where there was entertainment or informational programming presented without a sponsorship identification even where the programming was sponsored by a commercial entity.  Even simply providing a recorded program unduly promoting a commercial product has been found to be sufficient to trigger the FCC’s requirement that a sponsor be identified when a station receives valuable consideration for the airing of a program broadcast to the public (see our article here). Continue Reading TV Station Agrees to $115,000 FCC Fine for Not Identifying Sponsor of Program Promoting a Sale at Auto Dealership

Last week, the Senate approved a reauthorization of STELA, the new bill called STELAR (the “STELA Reauthorization Act of 2014”), adopting the version that had been approved by the House of Representatives earlier in the month.  In addition to simply giving satellite television companies (essentially DISH and DirecTV) the a five-year extension of their rights to rebroadcast the signals of over-the-air television stations without authorization from every copyright holder of the programming broadcast on those stations, STELAR made other changes to both the Communications and Copyright Acts that will have an impact on TV station operators once this bill is signed by the President.  The Presidential signing is expected before the end of the year.  [Update, 12/5/2014 – the President signed the Bill yesterday evening, so it is now law]

Some of the important provisions for TV stations contained in this bill include provisions that impact not only the relationship between TV stations and satellite TV companies, but also ones that have a broader impact on the relationship of TV stations with all MVPDs, including cable systems. There is also a provision actually providing more latitude for LPTV stations to negotiate carriage agreements.  Some of the specific provisions of this bill include:

JSA Extension:  STELAR will give TV stations currently operating with a Joint Sales Agreement with another station in their market which they cannot own under the current multiple ownership rules 6 more months to terminate such operations – until December 19, 2016 (after the next Presidential election).  See our discussion of the changes in JSA attribution here and here. Continue Reading Congress Passes STELAR – Renewing Authorization of Satellite Carriers Carriage of TV Stations – With Some Important Changes to JSA, Retransmission Consent and Market Modification Rules

In a Consent Decree released the day after Thanksgiving, the FCC agreed to accept a payment of a $35,000 penalty from a former television licensee for recording two telephone conversations for inclusion in a newscast, where the station called an outside party and recorded those conversations for inclusion in the newscast – before getting permission to do the recording.  The licensee also apparently did not fully respond to FCC inquiries about the facts of the case, leading to the $35,000 fine.  The FCC noted that the licensee had already sold the station, and was holding this money in a post-closing escrow account to be used to satisfy any fines that might arise from this conduct.

The decision is significant for several reasons.  First, it is couched in terms of privacy regulation, with a discussion of the importance of privacy regulation to the FCC in the opening paragraph (see the Public Notice that accompanied the release of the Consent Decree).  Recently, the FCC issued huge fines to independent telephone companies for not properly securing customer information – indicating a new emphasis on privacy regulation by the FCC.  Couching Friday’s consent decree in those terms indicates that privacy issues are now a high priority for the FCC.  As we have written before, privacy is a subject of interest to many other government agencies, and the recent interest of the FCC in this issue promises one more place where businesses can look for trouble should they respect the privacy of those with whom they interact, or should they not secure private information about their customers. Continue Reading $35,000 FCC Fine for TV Station that Tapes Telephone Conversations for News Broadcast Without Prior Permission

While we are in the Holiday season, the regulatory obligations faced by broadcasters don’t stop.  December brings a continuation of the TV renewal cycle, though we are nearing the end of that cycle.  Renewal applications for all TV, Class A and LPTV stations in the following states are due on December 1: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  These stations need to file their first two post-filing license renewal announcements on the first and 16th of the month.  Stations that filed their license renewal applications in October also will be broadcasting their post-filing announcements on those same days (their last two announcements).  Those would be stations in the following states and territories: Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan.  TV stations in the states that file license renewals on February 1 (those in New York and New Jersey) have to start running their pre-filing announcements on the December 1 (and run a second on December 16).

There are other routine filings due in December.  On December 1, Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations with employment units with 5 or more full-time employees in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont all need to complete their EEO Public File Report and place that report in their public file (and on their websites, if they have one).  Noncommercial stations still have obligations to file Biennial Ownership Reports on every other anniversary of the filing of their license renewal applications.  That means that these reports are due on December 1 for Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont; and on the same day for Noncommercial AM and FM Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota. Continue Reading December Regulatory Dates for Broadcasters – Renewals, EEO Reports and Noncommercial Biennial Ownership Reports in Some States; TV Ancillary and Supplementary Revenue Reports; As Well as LPTV Rulemaking Comments and Many Other Expected Actions

The FCC yesterday issued an order declining to allow experimentation with the noncommercial underwriting rules that was requested by the licensee of noncommercial radio stations in the Phoenix area.  The licensee had asked the FCC for permission to conduct a three year experiment by relaxing the underwriting rules in certain ways to determine the effect such a relaxation would have on its ability to raise revenue, and the impact on the listening and support that the station currently enjoys.  In denying the station experimental authority to conduct the test, the FCC determined that it lacked the authority to authorize it, as the relaxation that the license was seeking would be prohibited not only by FCC rules, but also by statute, and the FCC cannot waive or grant an exception to a statutory provision (unless specifically permitted by the statute). 

The underwriting rules prohibit noncommercial stations from running advertising for commercial entities.  These rules have been relaxed somewhat over the last 30 years to allow for “enhanced underwriting” announcements, which allow noncommercial stations to identify their sponsors, and provide limited information about the products and services of those sponsors.  But the information cannot be promotional in nature.  Specifically, there are a number of limitations put on these announcements.  Some of these limitations include: (1) the announcements cannot contain “calls to action” – statements that suggest that listeners buy from the sponsor or patronize their place of business; (2) the announcements cannot have qualitative claims – so noncommercial stations cannot say that their sponsor was voted the “best car repair shop in the city by City Magazine,” even if that statement of fact is true; and (3) the announcement cannot provide price or other information relevant to a buying decision, e.g. where tickets are sold, interest rates, etc.  For more information about these rules, see some of our previous articles on this topic here, here, here and here, as well as a presentation on that issue that is discussed here.  What did this licensee seek to change in its experiment? Continue Reading FCC Declines to Allow Experimentation with Noncommercial Underwriting Rules