Here are some of the regulatory and legal actions in the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • In connection with the Commission’s required monthly Open Meeting which was held last week, the FCC adopted two items of importance to broadcasters, which we previewed in last week’s update.
    • The first item adopted new rules implementing streamlined and standardized public notice obligations associated with various broadcast applications. The revised rules abolish requirements for printed notices in local newspapers and pre-filing announcements for license renewal.  (News Release)  (Second Report and Order).  The effective date of these changes will be announced later, although in a separate Order, the FCC immediately waived the requirement for license renewal pre-filing announcements for all future renewal windows.   The requirements for license renewal post-filing announcements are unchanged
    • The second item proposed for public comment the amounts of the annual regulatory fees to be paid in September by broadcasters and other FCC-regulated communications entities.  In addition to asking for comments on the allocation of the fees to be paid, the FCC asks if it can do anything to assist those who pay the fees in light of the current pandemic.  While the FCC is required by Congress to collect the regulatory fees, it asks if there are actions it can take while still complying with its statutory obligations, e.g. by allowing some companies to pay their fees over a greater period of time.  The FCC also completed the transition of TV fees to a system based on population in a station’s service area instead of the size of the market in which the station operates.  It also reduced the fees to be paid by certain VHF television broadcasters.  The comment period for the proposed 2020 regulatory fees will be set after the notice is published in the Federal Register.  (Report and Order and Notice of Proposed Rulemaking).

Continue Reading This Week at the FCC: May 9, 2020 to May 15, 2020

The FCC’s proposal to expand the use of Distributed Transmission Systems by television stations operating with the new ATSC 3.0 transmission system was published in the Federal Register today (here). That publication announces that the comment deadlines on the FCC’s DTS Notice of Proposed Rulemaking are due by Friday, June 12, 2020, and reply comments will be due by Monday, July 13, 2020.  While we mentioned this proposal in passing when discussing a proposal to allow FM stations to use boosters to provide an FM version of a distributed transmission system, we have not written in detail about this proposal.  With the comment deadline now set, let’s look at some of the questions asked in the rulemaking proposal.

First, it is worth explaining the concept of a distributed transmission system (sometimes referred to as a “single frequency network” as it uses multiple stations on the same frequency to reach its audience).  Traditionally, television stations have operated with a single high-power transmitter from a location central to their coverage area.  Thus, viewers close to the transmitter get the strongest signal, and that signal dissipates the further that a viewer gets from that central transmitter site.  Station signals are protected from interference to a certain contour where it is assumed that the majority of viewers will be able to receive over-the-air an acceptable signal most of the time.  But even at the edge of these protected contours, the FCC’s projections assume that many viewers will not be able to receive an acceptable signal at all times.  Distributed transmission systems are already in use by television stations in certain markets to fill in holes in station coverage – and have been particularly useful in markets with irregular terrain where mountains or other obstructions preclude one centrally located transmitter from reaching audiences far from the transmitter site.  Locating a second transmitter on the same frequency behind the terrain obstruction allows better reception for viewers who might otherwise not receive an acceptable over-the-air signal. However, currently, the DTS transmitters cannot extend the noise-limited protected contour of a station “more than a minimal amount” beyond that which the TV station would be predicted to have from a single centrally-located transmitter site.  The NPRM in this proceeding, based on a petition filed by the NAB and America’s Public Television Stations (see our article here on the Petition for Rulemaking filed by these groups), looks to allow for wider use of DTS. Continue Reading Comments Due June 12 on Proposal to Expand the Use of Distributed Transmission Systems by TV Stations Operating with ATSC 3.0 Transmission Systems – What is Being Asked?

Comments on the proposal of GeoBroadcast Solutions to allow FM boosters to originate limited amounts of programming different from that carried on their primary stations were due to be filed by this past Monday.  We wrote about the GeoBroadcast proposal for “zonecasting” here. The comments as filed at the FCC fell principally into three categories.  GeoBroadcast Solutions and its supporters argued that the FCC should move forward with the limited rule changes that it seeks, changing the FM booster rules from requiring 100% duplication of the primary station to one which only requires substantial duplication of the main station – thus allowing for limited inserts of localized content including localized news, advertising and emergency information.  A second set of comments asked whether the technology had really moved forward sufficiently to warrant a notice of proposed rulemaking now – particularly as the system had not yet been fully tested for digital broadcast operations (commonly referred to as “HD Radio”).  Finally, there were proposals looking to expand the scope of the proceeding beyond GeoBroadcast’s limited technical proposal, to allow for other systems to provide the service and even to expand the proposal to also allow FM translators to originate programming.  Let’s look at each of these sets of comments.

Those supporting the GeoBroadcast proposal covered both the technology and business/operational aspects of the proposal.  Comments by GeoBroadcast’s engineer and the GatesAir, Inc., which developed the MaxxCasting technology for boosters to minimize interference between the boosters and their primary station, argued that the technology already works for analog broadcasts and was promising for HD Radio operations.  Support for the business case came from advocates for minority organizations (arguing that the technology would allow better targeting of these audiences), media brokers (arguing that the value of stations would increase), ad buyers (looking at the targeting prospects of the technology) and emergency communications experts (looking at the ability to target emergency information). Continue Reading Looking at the Comments on FM “Zonecasting” – What’s Next for This Proposal?

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant actions:

  • The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies.  Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off.  As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver.  (Order)(Broadcast Law Blog article)
  • Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations.  (News Release)
  • The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters.  It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)
    • The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications.  This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).
    • The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates.  The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).
  • The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule.  If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term.  (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).
  • The comment period closed this week in the FCC’s FM “zonecasting” proceeding.  The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station.  Under the current rules, FM boosters must retransmit 100% of the programming from their originating station.  (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).
  • A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory.  The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).

 

The requirement that television broadcasters and MVPDs (including cable and satellite television providers) negotiate in good faith over the provisions of retransmission consent agreements is often cited in arguments by one side or the other when negotiations over the fees to be paid under those agreements break down.  In a consent decree released last week, the FCC showed that the requirement is more than just a few words in the statutes and rules governing these negotiations, reaching an agreement with TV licensee Howard Stirk Holdings, LLC to pay a penalty of $100,000 for violations of those requirements and to also adopt a compliance plan setting up internal corporate controls to ensure that similar violations do not occur in the future.

The consent decree was based on violations described in a decision of the FCC’s Media Bureau released last November (here) finding that 18 television station licensees, operating stations in separate markets, had failed to negotiate retransmission consent in good faith.    The Stirk company and the other stations covered by the November decision had used a single negotiating agent who the Bureau found failed to comply with three of the Commission’s nine “per se” good faith negotiating standards set out in Section 76.65(b)(1) of the Commission’s rules.  Specifically, the Bureau found that the stations had not operated in good faith based on these perceived violations: (1)  refusal to negotiate retransmission consent agreements; (2) refusal to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations; and (3) failure to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal. Continue Reading $100,000 Penalty in Consent Decree Shows Teeth in Requirement for Good Faith Negotiation of Retransmission Consent Agreements

Music licensing issues are always confusing.  At the request of streaming service provider Live365 which hosted World Audio Day as a virtual substitute for our all getting together at last month’s cancelled NAB Convention in Las Vegas, I participated in a discussion of those issues, trying to provide the basics as to who gets paid for what uses of music in digital media including webcasting and podcasting.  You can watch the video of the session here:

The issues discussed included the difference between the rights granted by ASCAP, BMI, SESAC, on one hand, and SoundExchange on the other (for more on this topic, see our posts here and here), the emergence of GMR (see our articles here and here), the current state of royalties for webcasters (see our articles here and here about the current CRB proceeding), and music issues for podcasters (see our articles here and here).  While the details of music royalties are complex and confusing, hopefully this discussion will provide viewers with enough information to at least ask the correct questions about the rights that they will need when consulting with their lawyers and royalty advisors about their digital media plans.

The FCC yesterday announced a policy that will relieve broadcasters of wide-dissemination EEO obligations in rehiring laid-off employees in a post-shutdown world.  Because of the significant economic hit taken by broadcasters when so many advertisers pulled their advertising schedules as so many businesses shut down, many broadcasters who did not receive PPP loans were forced to lay off employees in order to be able to afford to continue operating.  As the economy recovers, it is hoped, some of those employees can be rehired.  The FCC Media Bureau’s order released yesterday may make some of that hiring somewhat easier.

The decision yesterday allowed broadcasters who were forced to terminate employees because of the pandemic to rehire those same employees at some point in the future (within 9 months of the time that they were laid off), without having to go through the “wide dissemination” that the FCC rules normally require before an employment vacancy is filled.  Normally, the FCC requires that before filling any full-time employment vacancy, a broadcaster must advertise broadly to reach all groups within its community to inform them of the job opening to insure a pool of diverse recruits from which to fill that position (see our article here on the wide dissemination requirement).  Under this decision, the FCC will allow broadcasters to simply rehire an employee who was let go – without any wide dissemination of the job opening – if economic conditions allow for their re-hiring within 9 months of when they were first laid off. Continue Reading EEO Relief for Broadcasters Hiring in the Post-Shutdown World

Last week, we started this feature of Here are some of the Washington actions of importance to broadcasters – at the FCC and elsewhere – which occurred in the last week, with links to where you can go to find more information as to how this may affect your operations.

  • The comment period ended in the FCC’s State of the Communications Marketplace Report proceeding.  The FCC sought comment on the report to inform its assessment of the communications marketplace that it must deliver to Congress. In addition to the video and audio marketplaces, the report looked at the wireless, broadband, wired telephone, and satellite marketplaces.  Reply comments are due by May 28.  (Report)
  • The FCC Enforcement Bureau issued a Notice of Violation to a Maryland AM station for violating the operating hours authorized by its license.  In this case, the station was authorized for daytime operation only (average monthly local sunrise time to average monthly local sunset time) and was observed operating long past 5:15 p.m., which was the average sunset time for the station’s service area in January 2019.  Notices of Violation are issued directly by Enforcement Bureau field agents and require a written response.  This serves as a good reminder to stations to abide by operating hours authorized by their license.  (Notice of Violation)
  • In response to a January letter from FCC Commissioner Michael O’Rielly regarding payola practices, Sony Music Entertainment, Warner Music Group, and Universal Music Group submitted written responses that the Commissioner posted to his Twitter feed (Universal’s response will be posted when certain confidential information can be redacted).  The record companies said there is nothing to support the allegations of payola and that any pay-to-play arrangements between the companies and radio stations are given the necessary on-air sponsorship identification.  We wrote more about this at the Broadcast Law Blog.  (@mikeofcc) (Broadcast Law Blog)
  • We published to the Broadcast Law Blog our recurring monthly feature that highlights important regulatory dates for broadcasting during the upcoming month.  May is a month where there are no regularly scheduled regulatory filings (e.g., no renewals, EEO reports, fee filings, or scheduled public file disclosures).  Nevertheless, as always, there are a number of important regulatory dates—and changes in some dates—for May of which broadcasters should be aware.  (Broadcast Law Blog)
  • The FCC voted to reorganize the Media Bureau by eliminating the Engineering Division and moving the division’s staff and work to the Industry Analysis Division.  The Commission believes this reorganization is a more effective use of available resources and should enhance the Bureau’s understanding and analysis of the media industry.  (Order)
  • In advance of the long-expected (and delayed by COVID-19) move of its Washington, DC headquarters, the FCC adopted a new official seal.  Expect to see this new seal adorning FCC materials, websites, and, when it opens, the new headquarters.  (Public Notice).

  • The FCC Media Bureau settled by consent decree an investigation into the retransmission consent negotiating practices of television stations of a television operator who  admitted to violating the good-faith negotiation rules, agreed to pay a $100,000 civil penalty, and adopted a compliance plan to be followed for three years.  (Order and Consent Decree).  This consent decree follows up on an FCC Media Bureau decision from last year which, though heavily redacted, provides more information on the good faith negotiation standards applicable to retransmission consent agreements.

The responses by the major record labels to Commissioner O’Rielly’s inquiry into allegations of payola practices (see our article here) were published last week while we were all distracted with pandemic issues.  While the responses (available here on the Commissioner’s twitter feed) were perhaps not surprising – saying that the record labels do not engage in any on-air pay-for-play practices where the payment is not disclosed – they nevertheless highlight some practices that should be observed at every radio station.  As I have said in many seminars to broadcasters around the country when talking about FCC sponsorship identification requirements, if you get free stuff in exchange for promoting any product or service on the air, disclose that you got that free stuff. As made clear in these responses, when the record companies give free concert tickets or similar merchandise to a radio station for an on-air giveaway to promote a concert or the release of new music by one of their artists, they agree with the station to reveal on the air that the record company provided the ticket or merchandise that is being given away.

The responses also indicate that these record companies do not provide musical artists to play at station events with any agreement – explicit or implicit – that the station will play those artists more frequently because of their appearance.  While that might happen naturally, it also might not (if, for instance, the band is one of many acts participating at some station-sponsored festival).  The record companies state that their contracts with stations for such events make clear that there is no agreement that any artist appearance is tied to additional airplay for that artist. Continue Reading Record Companies Respond to FCC Commissioner on Payola – What Should Broadcasters Learn from the Responses?

Taking a station off the air is often the last resort of a broadcast company in desperate financial times.  While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis.  If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.

When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air.  If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent.  These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed.  But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases).  When stations resume operations, they must notify the FCC that they are back on the air.  But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here).  Even with authority to remain silent, there are risks. Continue Reading Broadcast Stations Going Silent – What You Need to Do