Three broadcast items are tentatively scheduled for the next FCC meeting, to be held on April 27, according to the tentative agenda released today.  In one expected action, though perhaps moving more quickly than many thought possible, the FCC has indicated that it will adopt an Order in its proceeding requiring TV broadcasters to place and maintain their public files on the Internet.  A second broadcast item will adopt rules for channel sharing by TV broadcasters as part of the plan for incentive auctions to entice TV broadcasters to give up some of their spectrum for wireless broadband use.  Finally, the FCC proposes to adopt a NPRM on whether to amend current policies so as to permit noncommercial broadcasters from interrupting their regular programming to raise funds for organizations other than the station itself.

The first item is to determine whether to require that the broadcasters maintain an Online Public Inspection File, is a controversial issue about which we wrote last week. The proposal for the online file grew out of the FCC’s Future of Media Report (renamed the Report on the Information Needs of Communities when it was released last year, see our summary here).  In that same report, it was suggested that the FCC relax rules applicable to noncommercial broadcasters that limit their on-air fundraising for third-parties, if that fundraising interrupts the normal course of programming.  The Future of Media Report suggests that this restriction be relaxed so that noncommercial broadcasters be able to do block programming from time to time to raise funds for other noncommercial entities

Continue Reading On the Schedule for the April 27 FCC Meeting: Television Public Interest Obligations, TV Channel Sharing and Third-Party Fundraising by Noncommercial Broadcasters

Determining how much interference to full-power FM stations is acceptable from LPFM stations is perhaps, in the long run, one of the most important issues discussed in the FCC’s two orders released two weeks ago clarifying the rules for LPFM stations.  The FCC’s proposals on this issue, and several others, has now been published in the Federal Register, asking for public comments by May 7, with reply comments due May 21.   As we detailed when we wrote about the proposals that have now been published in the Federal Register, while the FCC did away with strict mileage limitations on third-adjacent channel spacings between LPFM stations and full-power FMs as required by the Local Community Radio Act ("LCRA"), it did not totally eliminate all interference requirements.  Instead, it proposed a two-tier system requiring more remediation efforts by LPFMs that operate at less than what had been the required spacings, and lesser interference for stations that did observe the old mileage separations.  The May 7 comment deadline also applies to comments on the FCC’s proposals for second-adjacent channel waivers of the required spacings between LPFMs and full-power FM stations, and on changes to the service rules for LPFMs – including allowing them to operate at powers as high as 250 watts ERP in rural areas.

The ruling eliminating the third-adjacent channel spacing rule as required by the LCRA was published in the Federal Register yesterday, meaning that the rule becomes effective on June 4, but practically that should mean little until the FCC addresses the interference-complaint resolution issues addressed in the Further NPRM.  The abolition of the third adjacent channel spacing rules did leave in place one limitation, that LPFM stations cannot cause more interference than they can under present rules for stations that offer reading services for the blind. 

The Further NPRM also addresses second adjacent channel interference, proposing very strict rules that require an LPFM to cease operations if it creates any interference to a regularly used FM signal – even outside of the full-power station’s protected service contours.  This is essentially the FM translator interference requirement – which has, in the past, caused many translators to cease operations or change their technical facilities to protect full-power stations.  Further details on this proposal are available in our summary of the order.  That summary, however, did not address the proposed changes in the LPFM service rules, which we address below.

Continue Reading May 7 Deadline Set for Comments on Proposed Rules on Interference to Full-Power FM by LPFM Stations, and on LPFM Service Rules (Including Proposal for 250 Watt LPFM Stations)

Communications towers that are not lit as required often bring big fines from the FCC.  In two decisions released today, the Commission followed that precedent.  In one case, the FCC proposed a fine of $17,000 to a tower owner after repeated promises to fix lights that were out did not result in any resolution of the issue after 2 years (problems which, according to the FCC decision, were first brought to the tower owner’s attention by the FCC).  The FCC’s order also said that the tower owner stated that its protocol was to examine the status of the tower lights quarterly, even though the FCC’s rules (Section 17.47(a)) require that there be a direct visual check, or a check of an authorized monitoring system, every 24 hours.  The owner was also required to report to the FCC, within 30 days, stating that that the required lights were back on or with a specific timetable for doing so. 

In a second case, the FCC proposed a fine to the same company for $15,000 for perceived issues at another tower, and indicated that they thought that there might be a systematic problem with the company’s practices – ordering the company to report to the FCC on the compliance status of all of its towers.  These decisions are indicative of how seriously the FCC considers its tower lighting and monitoring rules, given their potential impact on public safety.  So remember to check your tower lights daily, report outages to the FAA when they occur, and promptly fix any problems that may exist. 

As technology changes, the definitions in the FCC rules don’t always keep up.  In a public notice released last Friday, the FCC asked for public comment on what its definition of an "MVPD" – Multichannel Video Programming Distributor – means for purposes of its program access rules. These rules limit exclusive contracts for certain programming that one would normally think of as network cable programming, in order to make that programming available to competing distribution technologies (see this discussion of the application of these rules).  Traditionally, these rules (set out in Section 76.1000-76.1004 of the FCC’s Rules) have been thought to require access to this programming by cable, satellite and other companies with their own distribution facilities (i.e. their own wires or spectrum licenses).  Now, with so much video being delivered over the Internet, companies have begun to offer cable-like services by IP-based delivery mechanisms, and they want access to that programming.  Because of these demands for program access, the FCC has asked for these comments.

The proceeding is summarized more thoroughly in our firms Advisory, available here.  As set out in the advisory, the issues on which the FCC is asking for comment could have broader implications should these IP-based systems be deemed to be MVPDs.  For television broadcasters, such a definitional change could signal the need to reexamine the rules regarding the carriage of local television stations, including whether the must-carry and retransmission consent scheme would have to be grafted onto these Internet-delivered services, a requirement that has thus far been rejected by courts and the FCC.  A reexamination of these definitions, should it occur, could have broad implications.  Comments are due on this matter on April 30, with replies due on May 30. 

While the FCC has not yet started a proceeding to set rules for the auction of television spectrum for broadband purposes, the Commission is taking steps to clear the spectrum in other ways.  Two weeks ago, we wrote about the FCC’s actions proposing to remove the Class A designation from certain LPTV stations that had not met their children’s television obligations.  Since then, the FCC has gone further – proposing to take away Class A status for stations that had been off the air for significant periods of time – even with FCC permission as, according to the FCC, they could not have met the requirement for Class A TV stations that they must provide significant local programming each week (see FCC releases here, here and here, all proposing the termination of Class A status for stations that had been off the air for much of the last two years).  Given that Class A stations are as protected in the same way as a full-power TV station from being permanently displaced by the FCC in any spectrum clearing for broadband, the loss of Class A status may well deny these stations a place on the dial after any repacking of the TV band to accommodate a spectrum auction, or they may not be able to receive any share of the proceeds from any incentive auction that would be available to a Class A station that decided to turn in its license in exchange for compensation from auction proceeds.

In another decision released this week, the FCC denied the request of a television station to move from Hagerstown Maryland to a close-in Washington DC suburb.  While part of the basis for the denial was perceived procedural issues, the FCC also specifically stated that "the Commission’s priorities no longer support such a move" of a station into a Top 10 market while it was considering the consolidation of the TV band to clear parts of it to be auctioned for broadband.  So it appears that, for the foreseeable future, there will be no move-ins of rural TV stations toward any major market.  

And don’t expect to get any slack for rule violations by a Class A TV station, as it seems clear that the FCC is looking to clear the TV band, to the extent possible, to make its job in the incentive auction easier (see this $13,000 fine for a Class A TV station that did not have all required children’s television reports in its public file).  With license renewal coming up for TV stations starting in June, TV stations, especially Class A stations, need to make sure that there houses are in order, as the FCC certainly will be looking carefully.

While rumors are flying that the FCC is rushing to adopt its proposals to require that TV stations put their public inspection files online (see our summary of the proposals here), both the FCC and public interest groups are targeting the public files of television stations – looking to copy some or all of those files.  Rumors are that the FCC inspected the public files of all television stations in at least one city – and asked for copies of the complete files to be produced at the FCC within a day or two, in some cases requiring the copying of several file cabinets worth of material very quickly.  Whether this inspection is a one-shot deal or the start of a program to audit the files of TV stations across the country is unclear.  At the same time, public interest groups have been urging their members to inspect TV station public files across the nation, to copy parts of those files, and to post the information that they collect online.  TV stations across the country need to be prepared for these inspections.

Why these actions now?  Some may think that the FCC is just conducting a random audit, while others may suggest that the demand for complete public files is just a fact-finding mission as part of its rulemaking process.  The more suspicious of broadcasters may think that this represents the FCC sending a message that the online public file is coming, and stations may find it easier to accept the online file rather than facing these demands for the instant reproduction of their entire files to be inspected at leisure in Washington. 

Continue Reading FCC and Public Interest Groups Demand Copies of TV Stations’ Public Inspection Files, As FCC Nears Decision About Requiring That The Complete File Be Posted Online

We recently wrote about the FCC’s new rules requiring the captioning of television video retransmitted on the Internet.  Those rules have now been published in the Federal Register, which sets the effective dates for the implementation of those rules.  The rules become effective on April 30, which means that any video that is broadcast on TV on or after that date, that has captions when broadcast, must also have such captions when transmitted online at any time after September 30 (giving parties some time to work out technical issues with online captioning).  Further details about this deadline, and the deadlines for captioning other video that is distributed online, is available in our Advisory on the Online Captioning Compliance Deadlines, here. 

With April Fool’s Day only a few days away, we need to repeat our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other jokes prepared especially for the day.  While a little fun is OK, remember that the FCC does have 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 of the Commission’s Rules, 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."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case 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.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 

Continue Reading April Fools Gags on Air? Play It Safe, and Remember the FCC’s Hoax Rule

SiriusXM announced that is has filed a legal action, including antitrust claims, against SoundExchange and A2IM (the American Association of Independent Music – the association of independent record labels), charging, according to a press release, these two organizations "with unlawfully interfering in SiriusXM’s efforts to secure, through a competitive market, copyrights critical to its business. The complaint contends that the conduct violates federal antitrust, as well as New York state law." The claim is essentially that these defendants conspired to prevent SiriusXM from negotiating direct licenses with musicians, licenses that could take music out of the royalty scheme administered by the Copyright Royalty Board, where royalties are paid to SoundExchange.  We wrote about the attempts by SiriusXM to negotiate such direct licenses, and the opposition of music groups to these agreements, last year. 

Why would SoundExchange and A2IM oppose direct music licensing?  One reason is that music licenses that are directly negotiated between music users and rights holders are traditionally the best evidence of the value of music.  In recent rate court cases involving performing rights organizations, direct licenses formed crucial evidence of the value of music rights.  In cases dealing with ASCAP and BMI royalties for "business establishment" or "background music" services, evidence of direct licenses at rates significantly lower than previously established resulted in court decisions dropping rates by as much as two-thirds from the rates that ASCAP and BMI had previously been charging.  Were SiriusXM to be successful in its suit, and if it is in fact able to negotiate direct music licenses for substantial catalogs of music at rates lower than what it has paid under previous rate decisions, it would presumably introduce such evidence in proceedings before the Copyright Royalty Board (which is now in the process of setting the rates for the public performance of sound recordings by SiriusXM over its satellite service for the next 5 years), and argue that these direct deals are the best evidence of what a willing buyer and willing seller would agree to in a competitive marketplace. While the rates set by the CRB for SiriusXM are not like Internet radio rates and established solely based on a willing buyer, willing seller test, the question of marketplace rates is still a very important component to any CRB decision setting those rates (see our article here on the rates that SiriusXM currently pays to SoundExchange and the standard used to set such rates). 

Continue Reading Sirius XM Brings Law Suit Against SoundExchange Alleging Collusion to Stop Direct Licensing of Music – Impact on Royalties?

The FCC has extended to April 17 the date by which Reply Comments must be filed in the Commission’s multiple ownership proceeding.  Comments were to have been filed by April 3, but several public interest groups requested more time to respond to comments filed in the proceeding by media industry groups and also to see whether the Supreme Court decided to review the decision of the Third Circuit Court of Appeals decision overturning the FCC’s 2007 revisions to its ownership rules (we summarized the Third Circuit decision here).  The groups requesting the extension expect that, by April 13, the Supreme Court will decide whether or not to hear appeals of the Third Circuit decision filed by media companies and the NAB.  While the groups asked for a 30 day extension, the Commission only granted two weeks, to April 17.

This proceeding is examining all of the FCC’s ownership rules, and specifically proposes abolition of the radio-television cross-ownership rule and liberalization of the rules limiting the common ownership of broadcast stations and daily newspapers.  The FCC has also indicated that it is looking closely at television shared services agreements, and at circumstances in which waivers of other local ownership rules might be appropriate.  For more information about the specific proposals advanced by the FCC, see our summary of this proceeding here.