With broadcasters making their way to the NAB Convention in Las Vegas, the FCC on Friday provided one topic for conversation among TV broadcasters – issuing a Public Notice imposing a freeze – effective immediately – on the filing of any technical application by any licensee or permittee of a full power TV station or a Class A station if that application which would increase their protected service area. The freeze was imposed, in the words of the FCC, in order to “facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated.”  In other words, the FCC wants a stable TV database from which it can begin the process of repacking TV stations into a smaller portion of the TV spectrum to facilitate the auction of parts of the TV spectrum recaptured after an incentive auction for wireless broadband purposes.

According to the notice, the Media Bureau will no longer accept the following types of applications:

·       Modification applications (and amendments to pending modification applications) by full power and Class A television broadcast licensees and permittees for changes to existing service areas that would increase a full power station’s noise-limited contour, or a Class A station’s protected contour, in one or more directions beyond the area resulting from the station’s present parameters as represented in its authorizations (licenses and/or construction permits).

·       Class A displacement applications that would increase a station’s protected contour.  (However, the Bureau will continue to accept Class A minor change applications to implement the digital transition (flash cut and digital companion channel) subject to current rule limitations.  

The Notice states that the Bureau will consider requests for waivers of the freeze, on a case-by-case basis “when a modification application is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when zoning restrictions preclude tower construction at a particular site or when unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site.” So, if your tower collapses and you need to move to a different site, a waiver may be possible, but improvements for the sake of improving a station’s signal will most likely be prohibited by the freeze.

Continue Reading FCC Imposes Freeze on Television Station Technical Improvements – Preparing for Repacking the TV Spectrum to Allow for Spectrum Auctions

Another radio topic sure to be discussed at the NAB convention this week is the ongoing story of the thousands of FM applications translators still pending at the FCC from the 2003 FM translator window. While this has been a topic at many of the NAB Conventions in the last 10 years, it looks like the end is near. On Tuesday, the FCC adopted yet another order in the processing of these translators, allowing applicants who specified that they were noncommercial operators to amend their applications in a window from April 8 to April 17 to specify commercial operations. That is important to such applicants as, soon after these applications were filed back in 2003, the FCC adopted a policy that said that applicants who elect noncommercial processing could not participate in an auction – and that they would be dismissed if they were mutually exclusive with commercial applicants. Not allowing these applicants the opportunity to amend (as the FCC has done in several other auctions from this period), would mean that the applicants would be dismissed for a defect that had not been announced at the time of their filing.

This is but one more step in the ongoing attempts to complete the processing of these applications so as to permit a new LPFM window later in the year. This will probably mean that thousands of new FM translators will be granted in the coming months – providing opportunities for the expansion of broadcasters’ signals, either in the traditional way of filling in holes in the coverage of FM broadcast stations, or by allowing for the retransmission of AM and FM-HD signals. This should prompt many discussions at the NAB Convention as broadcasters look at the opportunities that these new translator stations will present.

Continue Reading FCC Processing of Translator Applications from 2003 Moves Ahead – Window for Opting Out of Noncommercial Status to Participate in the Auction

The FCC’s indecency policy has been in limbo since last year’s Supreme Court decision determining that the Commission’s fines on broadcasters for fleeting expletives had not been adequately explained before being imposed. On Monday, the FCC took a step to clarifying that policy by asking for public comments on what it should do now. Should it formally adopt the policy that bans even fleeting expletives, and explain that policy to broadcasters to meet the issues that the Supreme Court raised? Or should it go back to the policy that had been in place before – the decision in the Pacifica case (known more popularly as the "seven dirty words" case, about which we wrote here) – where there had to be repetitive or deliberate use of expletives before the FCC would act. Comments will be due 30 days after this notice is published in the Federal Register, and replies 30 days after that.

The Commission stated that the public could comment on other aspects of its indecency enforcement as well, without specifying any specific areas of inquiry. One issue that would seem to be foremost in the FCC’s inquiry, but one which was not mentioned at all, is the constitutionality of the policy and its enforcement. This was an issue that was twice teed up to the Supreme Court, and both times that Court managed to avoid the issue by deciding cases before it on procedural "due process" grounds – essentially that the FCC had not given sufficient warning before adopting fines or that the FCC otherwise had not followed its own procedures when it changed its policies to a stricter enforcement standard. As the Court never finally resolved the constitutionality issue, it may well be back before the Court again – especially were the FCC to decide to pursue the stricter standard applied by the last Commission.

Continue Reading FCC Seeks Comments on Its Indecency Policy – How Should the Commission Enforce Its Policies After Last Year’s Supreme Court Ruling?

With the National Association of Broadcasters big convention coming up next week in Las Vegas, this week we’ll look at a couple of the issues that will likely be discussed when the industry gathers for its annual reunion. On Sunday, before most of the NAB Show begins, the Radio and Internet Newsletter (RAIN) will be holding its RAIN Summit West, where I will be moderating a panel called The Song Plays On – which will focus on the music royalties paid by Internet Radio and other digital music services. We’ll not focus on what the current royalties are, but instead to try to explore what they could be in the future. This is really one of the most difficult issues in the industry, as the two sides (and really there are many more than two sides to this issue) come at the issue from far different perspectives. We will try to bridge those differences and explore where there might be common ground for music users and copyright holders to come together to arrive at mutually beneficial solutions to this thorny issue.

The Internet Radio Fairness Act introduced in Congress last year brought this issue into sharp focus. That Act sought to bring about a number of reforms in the way that the Copyright Royalty Board sets various music royalties – particularly the rates that apply to Internet radio stations. We wrote about the provisions of the bill dealing with Internet radio royalties soon after the bill was introduced. After that article, there was a Congressional hearing on the issue, and lots of debate before the bill died at the end of the year as the session of Congress expired. This year, the Chair of the House Judiciary Committee has promised a number of hearings on all aspects of music and audio copyright issues, though none have yet been scheduled. But the debate about IRFA last year illustrated the divide between the various sides in the music royalty debate. 

Continue Reading Why the Differing Perceptions of the Value of Music by Digital Music Services and Copyright Holders Make Royalty Decisions So Hard

It’s time for our annual April Fools Day warning – be careful with on air pranks prepared especially for the day. This year, with thetragedy caused by the Australian morning show hosts calling the nurse for the Duchess of Cambridge, broadcasters have an example of what can happen when an on-air prank goes wrong. Where harm is caused, lawsuits may follow, and stations could become a target if someone is hurt as a result of a station’s broadcasts. But not only do stations need to worry about potential civil liability in a case like this, the FCC itself has a rule against on-air hoaxes – and, of any day in the year, April 1 is the day that the broadcaster is most at risk. The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused. Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties." So even if the prank does not cause any injuries, the mere fact that an on-air report was false and it ties up first-responders, is enough to lead to FCC liability. 

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood. In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies. In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  While the rule has been rarely enforced since, it is on the books and ready for use against any station that ties up police and fire companies when there is no emergency.   So FCC fines are possible on top of any damages that may result from a prank-gone-wrong. Have fun, but be careful out there next Monday!

The FCC proposed that a noncommercial broadcaster be fined $10,000 for its failure to allow a visitor unquestioned and immediate access to the public inspection files for 6 noncommercial radio stations operated from the same main studio. Though the delay in allowing access was only a few hours long, that delay, together with questions asked of the person who requested access as to his reasons for the inspections, led to the Notice of Apparent Liability issued by the FCC. In the decision, the Commission reminded all broadcasters that their obligation is to make the file available immediately upon a request made during normal business hours. The person inspecting the file cannot be asked why they want to see the file, or for their business or professional affiliation.

In this case, an individual apparently representing a competing broadcaster showed up at the station at about 10:30 in the morning. While it was disputed as to whether the individual immediately asked the receptionist to see the public file,  or whether he simply asked to talk to the general manager of the station, the Commission found that both parties agreed that, when the general manager was reached by phone, the individual did ask to see the file. The general manager did not immediately tell his staff to allow inspection of the file, instead telling the visitor that the manager would return to the office at about noon, and the file could be seen then. It was that delay – putting the visitor off for a few hours- that the Commission found was sufficient to trigger the violation. In the decision, the FCC went further to make this case instructive for broadcasters by laying out some of the specifics of the obligations of a broadcaster to allow access to its public file.

Continue Reading Noncommercial Radio Operator Fined $10,000 for Not Providing Immediate Access to Public File – FCC Provides A Good Primer on the Public File Rules for All Radio Broadcasters

April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children’s television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station’s public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC’s proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1. 

Continue Reading April FCC Obligations for Broadcasters – Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership

This past week, both FCC Chairman Julius Genachowski and Commissioner Robert McDowell have announced that they are leaving the FCC in the near future. While their exact departure dates are uncertain, the press is already buzzing with anticipation about who will next lead the FCC, and who will take the place of Commissioner McDowell. The President gets to appoint the Chairman and new Commissioner, but his choices have to be approved by the US Senate. While there have from time to time in the past been delays in the approval process of new FCC Commissioners, with one Democrat and one Republican leaving, there is some speculation in Washington that the confirmation process can move forward in tandem, and hopefully without significant undue delay.

In the interim, the FCC can continue to do business with three Commissioners should the replacements not be confirmed before the departures.  But what will this change in the FCC mean for broadcasters? In short, the answer is that it is probably anyone’s guess. There is very little that can be discerned in advance about the impact of the selection of any Commissioner. Certainly, a new Chairman can have a significant impact in shaping the agenda pursued by the Commission, but one never knows exactly what that agenda will be until the Chairman takes his or her seat and starts to act. Sometimes the results are surprising as with the last Republican Chair who introduced many very regulatory proposals to govern broadcasting (see, for instance, the adoption of the Form 355 for television that, had it gone into effect, would have required detailed, voluminous reporting of all sorts of information about public interest programming by television stations; as well as still pending proceedings on sponsorship identification obligations and the initiation of a vigorous anti-indecency regime). 

Continue Reading FCC Chairman Genachowski and Commissioner McDowell To Leave the FCC – What’s Next for Broadcasters?

The FCC has upheld a fine issued to a radio station licensee for what it determined was a failure to disclose all the rules of a broadcast contest. The giveaway was of "the Ultimate Garage" and the FCC determined, in response to a complaint, that the station had failed to disclose all of the material rules of the contest on the air. In looking at the many issues cited by the Commission in support of the fine, some are ones that are similar to those in other cases that we’ve written about before, but some are ones that have not been disclosed in other recent FCC fines – including the requirement that stations broadcast the all of the material rules of the contest not just periodically throughout the course of the contest enough so that a reasonable listener will hear the rules, but also the material rules must be announced the first time that the contest is announced to the public. 

The Commission found that the licensee here had not disclosed, in either the first announcement about the contest or in enough of the other broadcast announcements that the contest was a "winner take all" contest – where the Ultimate Garage would be awarded to only a single winner. The broadcaster had promoted the contest in both live-read announcements and in a variety of recorded announcements. While certain of the recorded announcements made clear that there was but one garage to be given away, many of the other recorded announcements and the live read announcements tended to refer listeners to the full contest rules on the website, where the rules mistakenly talked about the possibility multiple winners. But that was not the only issue that the FCC saw in the station’s disclosures.

Continue Reading Another $4000 FCC Fine for Radio Station that Fails to Disclose All Material Rules of a Broadcast Contest the First Time the Contest was Announced

We’ve written many times before about those big name events, like March Madness, the Olympics and the Super Bowl. Events that you and your advertisers are just dying to tie into your own local event – a sale, a party or maybe the introduction of some special new product or service. Well, like the Super Bowl, March Madness is a trademarked term, and you need to exercise care in its use. While the company that owns the trademark (a company partially owned by the NCAA) may not be as aggressive as the NFL or the Olympic Committees in protecting its rights, it can still be an issue should you start promoting your March Madness sale without permission and get caught.

When we wrote our usual warning about the use of the term "Super Bowl" in advertising earlier this year, I received one message asking if I worked for the NFL. A reader who obviously had trademark law experience complained that I was too cautious in urging broadcasters to avoid the use of the term Super Bowl in a commercial. The argument from the reader was that, if used in the right way, not to name an event but just to say something like – "buy a big screen TV so that can watch the Super Bowl, the Academy Awards and all the best television that is coming your way this year," your use of the term in a commercial could probably be justified should it be challenged. While that may be the case, making the distinction between this arguably permissible kind of use, and a more problematic use (like "come on down to Joe’s electronics for our Super Bowl Sale on big screen TVs") is a nuanced issue. By avoiding the trademarked term in advertising, and instead sticking with something more generic – like "it is tournament time again, and you can watch all the action with a new big screen TV from Joe’s Electronics" – avoids any of the issues that might arise if you use the trademarked term in your commercial.

Continue Reading March Madness is A Trademarked Term Like the “Super Bowl” – Watch Your Advertising and Promotional Uses