The CALM Act, meant to end the dreaded "loud commercial," is set to go into effect tomorrow, December 13. We summarized the requirements for compliance with the Act here. Basically, TV stations must adopt certain practices set out in a series of standards known as A/85 Recommended Practice, adopted by the ATSC (the Advanced Television Standards Committee). As we advised stations, the rules initially required any station needing more time was supposed to ask for a waiver of the rules by October 12. In an Order released on Tuesday, the FCC granted two waivers, and also decided that any other station needing more time could request a waiver as late as the compliance deadline date.

In the order, the Commission granted two waiver requests – one for just a month and a half as the cable system simply had a misunderstanding of what they needed to do to achieve compliance, and the second until the end of May because a TV station was in the middle of a studio move, and promised to install the new compliant equipment at the new studio. The Commission also reminded stations that there are two kinds of waivers available – automatic waivers, upon request, for small stations (those with under $14 million in annual revenue or in a TV market from number 150 to market 210) and small cable systems; and other waivers for stations facing specific problems, including financial hardships. Those who do not qualify as small stations would need to demonstrate the specific hardship justifying the waiver. So any stations or systems seeking a waiver have a last chance to do so, by Thursday.

Continue Reading Compliance Deadline for CALM Act December 13 – FCC Allows Waiver Filings Until that Deadline

As personal marijuana use becomes decriminalized in the states of Washington and Colorado, we once again repeat our warning to broadcasters who may be looking to pot sales as a new source of advertising revenue – remember that the Federal government still thinks that the drug is illegal. The US Attorney’s Office in Seattle has reportedly issued a statement reminding residents in Washington State of that fact, and told Washingtonians that the Department of Justice plans to enforce Federal law on all Federal properties in the state. How does this affect broadcasters? 

Broadcasters are Federal licensees. Thus, there still is a concern that advertising for an activity that is considered a felony under Federal law might present problems if a license renewal is challenged or a complaint is filed.  It is Federal law, of course, that governs the issuance and renewal of FCC licenses. No FCC official has been willing to say that advertising medical marijuana is permissible (and, as we wrote last year, a US attorney in California threatened to prosecute media outlets advertising medical marijuana clinics and to possibly seize property used for such advertising). As Washington state officials discuss how to license stores to sell pot under its new laws, some broadcasters may eye these stores, once authorized, as a potential new source of advertising revenue.  Especially with license renewal now underway for radio stations in Colorado, and soon coming up for TV stations in Colorado and for broadcasters in Washington, now is probably not the time to press the limits of advertising a product with such an ambiguous legal status. 

Continue Reading Legalized Marijuana – Why Broadcasters Should be Wary

The FCC’s multiple ownership proceeding was going to be decided at last, before Christmas, or at least that was what was suggested by many news reports as recently as early last week. Published reports suggested that a draft proposal was circulating at the FCC, and that it was expected to be acted on in December – perhaps at or before next week’s open meeting. That timetable now seems to be out the window, as the FCC has asked for additional comments on the summaries of the information gleaned from the FCC Form 323 Ownership Reports as to minority and female ownership of broadcast stations released late last month. The summary of those reports showed low levels of minority ownership in many parts of the broadcasting world. As the Third Circuit’s remand of the last multiple ownership order (which we summarized here) was based in part on the Commission’s failure to address the impact that its minor liberalization of the newspaper-broadcast cross-ownership rules would have on minority ownership, this request for additional comments seems addressed, at least in part, to addressing that perceived deficiency.

The request for comments gives a short deadline, with comments due the day after Christmas, and Replies on January 4. This indicates that there still is a push to get the ownership proceeding resolved early next year. With this push on, it seemed like a good time to review some of the more controversial issues likely to be addressed in the upcoming order.

 

The area where the most arguments seem to be centered, and the one most likely to be impacted by the data on minority ownership, is the cross-ownership rules. In the Notice of Proposed Rulemaking in this proceeding (see our summary here), the Commission proposed dropping the remaining restrictions on radio-television cross-ownership, and relaxing the newspaper-broadcast cross-ownership restrictions, which the FCC attempted to do in 2007, only to be rebuffed by the Third Circuit. We have observed how some pundits in Washington have mused that the newspaper-broadcast cross-ownership restrictions may well outlive the daily newspaper, and that seems to be the debate now, as advocates of relaxation argue that combinations will help economically challenged newspapers, while also promoting more news on broadcast stations in such combinations. Opponents, on the other hand, fear that combinations will lessen minority ownership in markets – either by foreclosing opportunities for minority buyers, or by buying minority-owned stations. 

Continue Reading Multiple Ownership Decision Delayed – What Issues Are Being Debated?

An Australian radio team was reported to have called the hospital where Princess Kate – Catherine, the Duchess of Cambridge – was being treated.  This prank has now apparently had tragic consequences, in that the nurse from whom the team received information has seemingly committed suicide. Even before the unexpected terrible outcome was known, it was very clear that this broadcast was not the type of gag that US broadcasters should imitate.  Beyond the personal consequences that resulted from this event, the prank itself would be a violation of FCC rules if done by an American station, and would lead to an FCC fine.

The radio team, by pretending to be the Queen of England and Prince Charles, apparently managed to talk to a nurse on the floor where Kate was being treated, and they received inside information about the Princess’ medical condition. The tragic result was the suicide of the nurse after the prank was revealed.  Since then, the radio team has apparently been suspended by the station.  Even if this situation had not resulted in the tragedy of the death of the nurse, broadcast stations in the United States should not  try to repeat such a stunt, or one anything like it. As we’ve written many times before, the FCC rules prohibit broadcasters from putting a phone call on the air, or even recording a call for future broadcast, unless the caller is first told that he or she is going to be recorded, and consents to the call being broadcast. Unlike other laws that deal with the recording of telephone calls for other purposes – where having consent to recording from only one party to a conversation is permissible in many states – the FCC demands all across the US that broadcasters have two-party consent to calls even before the person on the other end of the call says "hello." As we have written before, the FCC imposes significant fines for any violation of the rule, no matter how well meaning, even if the call is done in a news context. 

Continue Reading Tragic Australian Radio Prank – US Broadcasters, Don’t Try This At Home

The FCC offered its solution for the remaining conflicts between LPFM advocates, applicants for new FM translators from the 2003 FM translator window, and full-power FM stations with a series of orders approved by the FCC at its open meeting on Friday. We wrote about some of the issues on the table for the FCC’s resolution most recently, here. The full decision rendered on Friday as to FM translator processing was just made available moments ago, and we will analyze it shortly.  From the FCC’s Press Release on the matter and the statements of the Commissioners, we understand that there were several significant decisions made at the meeting, including:

  • Allowing applicants from the 2003 translator window to continue to prosecute up to 70 applications remaining from the window, as long as at least 20 of those applications are outside of the Top 150 markets and four other markets that had received significant applications in the 2003 window.
  • Allowing applicants from the 2003 window to continue to prosecute up to 3 translators in a single market – up from a limit of one in the Commission’s previous decision on the matter
  • Allowing LPFM applicants to receive waivers of the spacing requirements to full-power stations on second adjacent channels if they comply with the same rules as do translator applicants seeking second-adjacent channel waivers – e.g. showing that there is no interference over populated areas, and agreeing to shut off operations if there is interference to the regularly used signal of any FM full-power station
  • Eliminating the ability for LPFM stations to apply at 10 watts, and apparently rejecting proposals to allow for a class of 250 watt LPFM stations.
  • Specifically allowing LPFM stations to use FM translators in certain instances
  • Promising to open a window for the filing of LPFM applications by October 2013.
  • Changing certain preferences in the point system for awarding LPFM stations

The details set out in the just-released order will be quite important, as they should provide more information about the process for processing the remaining FM translator applications from the 2003 Window, an issue very important to many broadcasters who have been looking at some of these stations as a way to provide rebroadcasts of their AM stations and their HD-2 streams. Full-power broadcasters will also be interested in the details of the complaint process that will apply to new LPFM stations that cause interference to full-power FM stations. And those interested in LPFM will be anxious to see more details on the preference changes for awards in situations where there are mutually exclusive applications for new LPFM stations – including the obligations for shared-time operations in certain circumstances. So watch for further information in the coming days. 

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act’s prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing the decision of the initial three judge panel, has indicated that the case should not be relied on as precedent in any other court decision until the full Court can complete its review. While one must be careful in pre-judging any court decision, especially when all we have to divine the intent of the Court is a two sentence order, this at least hints that the full Court may have misgivings about the initial decision in this case.

The initial decision by the three judge panel suggested that the limits on political speech placed unjustified burdens on the First Amendment, and that there was no overriding non-speech related objectives served by these restrictions. The panel suggested that political ads were different than other commercials trying to sell a service or product, as political speech did not sell a commercial product, but instead encouraged civic discourse not unrelated to the educational mission of noncommercial stations.  Many noncommercial stations saw the potential that this decision could lead to a new source for revenue to support their operations, while others expressed fears that it could erode the noncommercial nature of educational stations. The FCC, while questioning the decision, had initially stated that it would allow stations in the Ninth Circuit to accept political ads as soon as the panel’s decision became effective (in the FCC’s notice of proposed rulemaking asking for comments on other noncommercial fundraising issues). Given the Court’s order in this case, we will wait to see if the FCC revisits this finding as to stations in the Ninth Circuit.  Look for a final decision in this case in the coming year. In the meantime, stations outside the Ninth Circuit should not look for any immediate relief, and stations in the states in the circuit should proceed cautiously in considering any political advertising on their stations.

112 new FM channels will be available in the next auction for new FM channels (referred to by the FCC as "Auction 94") to be held beginning April 23, 2013. To participate, interested parties must file their "short form" applications – setting out information about the ownership of the applicant and the channels in which they are interested – by February 6, 2003. All of the procedures for the auction are set out in the order released late Wednesday, available here. The locations of the available channels, authorizing the winners to build new FM stations  serving the named communities and the nearby area, are also set out in this attachment to the order. The notice adopts many of the same procedures set out when the Commission first proposed the auction back in September (see our article here). However, the Commission pushed the auction back the initially scheduled date for the auction by about a month to avoid religious holidays and the NAB Convention, ending up with the new starting date of April 23. The Commission also pushed back other dates associated with the auction, deleted a handful of channels that had been proposed for inclusion in the auction but had not been properly published in the Federal Register, and announced other decisions relating to the auction – all with many cautions for those who may be bidding about the possible pitfalls of the auction process.

The relevant auction dates are as follows:

Auction Tutorial Available (via Internet) …………………….January 28, 2013

Short-Form Application (FCC Form 175)

Filing Window Opens ……………………………………………….January 28, 2013; 12:00 noon ET

Short-Form Application (FCC Form 175)

Filing Window Deadline……………………………………………February 6, 2013; prior to 6:00 p.m. ET

Upfront Payments (via wire transfer)…………………………..March 18, 2013; 6:00 p.m. ET

Mock Auction ………………………………………………………….April 19, 2013

Auction Begins…………………………………………………………April 23, 2013

The most important dates for bidders are the deadline for the submission of the "short-form" application of February 6, the date for the Upfront Payments, and of course the dates for the start of the auction itself. The short-form lists the owners, any bidding agreements that the parties have with other bidders, and the channels in which the party is interested in bidding. The bidder can also submit specific proposed transmitter site coordinates for any channel in which they are bidding, which protects those named sites from moves by other existing stations that could otherwise preclude their use.   The failure to meet this February 6 deadline means that a party cannot participate in the auction.

Continue Reading FCC Sets Deadlines and Procedures for the April 2013 Auction of 112 New FM Channels – February 6 Deadline for Applications to Participate

The relationship between low power FM stations and both FM translators and full-power FM stations will be addressed by the FCC at its open meeting on November 30 – the only issues on the FCC’s agenda for that meeting. We expect that two controversial matters will be discussed – (1) the effect that the thousands of FM translators that remain pending from the 2003 translator window will have on LPFM availability and how to deal with those applications and (2) the interference considerations between translators and full-power stations, including issues such as second-adjacent channel interference waivers and the situations in which LPFM interference to full-power stations will require that the LPFM cease operations. For LPFM advocates and applicants, issues are also outstanding about the qualifications for LPFM applicants in an upcoming (yet-to-be announced LPFM filing window), including whether there will be obligations placed on LPFM operations for specific amounts of local program origination.

The FM translator issue has been a long and contentious one. In 2003, during the last FM translator window, thousands of applications for FM translators were filed. LPFM advocates have contended that the grant of these applications would preclude LPFM opportunities. After processing applications for a couple of years, the FCC froze the processing of all the remaining applications, and in 2007 announced that applicants would only be able to prosecute 10 of their remaining pending applications. There were many objections filed to that decision. Last year, the FCC announced a much more granular process for determining which translator applications could be processed, looking on a market-by-market basis at the prospects of LPFM interference, and deciding that translator applications would only have to be dismissed where interference limited LPFM opportunities for a given number of LPFM stations. The Commission also decided that a cap of 50 applications should be imposed on the number of applications that one entity could continue to prosecute, and limited applicants to prosecuting one application per market. See our summary of the FCC decision on the translator-LPFM issues here. These issues are all subject to petitions for reconsideration.

Continue Reading FM Translators and LPFM on FCC Agenda for November 30 Meeting – A Final Resolution for the Pending 2003 Translator Applications?

What should broadcasters worry about from an FCC inspection? A few weeks ago, I was speaking at the Kansas Association of Broadcasters’ annual convention. At the convention, I attended a session conducted by an FCC field inspector and the engineer who conducts the "alternate broadcast inspection program" ("ABIP") for the KAB.  We’ve written about the ABIP program before, and how beneficial participation in that program can be for stations that want to avoid an FCC inspection and possible fine. At the convention, these inspectors talked about the issues on which the FCC is focusing in recent inspections. These issues are not to the exclusion of other common issues that we have written about before – like the need to keep the public file updated, the completion of quarterly issues programs lists, the need to maintain operational an EAS encoder/decoder, and the requirements for manned main studios. But there are other issues, including some that have not been a focus in the past, that now require broadcasters to be on guard.

One issue deals with broadcast auxiliaries. These are the licenses that broadcasters use in connection with their main studio operation. This includes licenses like Studio-Transmitter Links (STLs) that relay programming from the studio to the transmitter site and Remote Pickups (RPUs) that convey remote information back to the studio. During the summer, the FCC fined several stations for using auxiliaries without a license in amounts up to $20,000 (here and here), and issued a fine for $8000 for a station using an STL at a location different than that set out on the STL’s license. Have you moved a main studio in recent times? If so, did you amend your STL license to specify the new studio location – which is most likely the new transmit site for the STL? If you haven’t, and the FCC catches you, you may be looking at a fine.

Continue Reading FCC Inspection Issues for Broadcasters – Auxiliary Licenses, Chief Operator Designations, and Tower Issues

Hurricane Sandy (or "Superstorm Sandy as it now seems to be called) has resulted in an outpouring of support from broadcasters across the nation, looking for ways to raise funds for those that have been affected by the storm and its aftermath. Noncommercial broadcasters who are interested in joining in the fundraising efforts were aided by a Public Notice released by the FCC yesterday, adopting a form of a simplified waiver of its policies against noncommercial broadcasters engaging in on-air fundraising activities on behalf of any entity other than the station itself if that fundraising "substantially alters or suspends regular programming" of the station.  As we have written before (see for example these articles about Tsunami relief, and aid to victims of the Haitian earthquake), the FCC has previously granted liberal waivers of its policies to allow noncommercial stations to engage in fundraising efforts where there is this type of mass disaster. The process for filing for one of these simplified waivers is set out in the Public Notice.

In our previous posts about these blanket waivers, we have commented how, in our opinion, this policy may well have outlived its usefulness as noncommercial broadcasters should be able to make these decisions about what programming best serves their listeners on their own, just as do commercial stations. The Commission has itself asked whether the policy should be changed, initiating a Notice of Proposed Rulemaking on the subject, with comments that were filed just a few months ago (see our summary of the proceeding here, including a description of the many limitations that the Commission suggested be retained even if the rules were somewhat relaxed). While some noncommercial broadcasters were supportive of a relaxation of the policy to allow them to make their own decisions, others were concerned. In particular, some stations were concerned that the relaxation of the rules would put too many demands on these stations from various charities looking to raise money on the stations – and it would be a difficult process for stations to pick and choose among these groups.  Some of these broadcasters also felt that such efforts could overwhelm the audience, change the nature of the noncommercial service, and affect the station’s own fundraising appeals. Supporters of the liberalization ask why the broadcasters can’t avoid these problems by applying their own judgment, but having a government prohibition to rely on does simplify the choices that a broadcaster might otherwise have to make.  We will watch with interest how this policy issue plays out as the Commission considers the comments filed in its rulemaking proceeding in the coming year.