As the year hurtles to a close and desks are cleared for the holidays, don’t forget that the window for filing an application to participate in the upcoming FCC Auction opens on January 3, 2012, the first business day of the new year.  As we wrote about earlier (here), the FCC will hold an auction on March 27, 2012, offering 119 construction permits for new FM radio stations. The permits are scattered across the country and have minimum opening bid amounts ranging from $1,500 to $100,000.  A complete list of the construction permits available in the auction can be found here.  The filing window opens at noon ET on January 3rd, and parties interested in potentially bidding in the auction must prepare and file an FCC Form 175 Short Form application before 6 PM ET on January 12, 2012 in order to be eligible to participate. Instructions on how to file a Form 175 and further information about Auction No. 93 can be found in the FCC’s Public Notice. 

And even if you are not interested in participating in the upcoming Auction, stations should remember that in connection with Auction 93, the FCC will temporarily freeze the submission of all minor change applications for both commercial and noncommercial FM stations from January 3 through January 12, 2012.  This freeze will prevent existing stations from filing minor modification applications that might be mutually exclusive with the preferred allotment site coordinates that a potential bidder might specify on its short form application.  Licensees of existing stations should plan accordingly.  

All broadcasters and other EAS participants need to remember to file their reports on whether or not they received the Nationwide EAS Test by December 27.  With everyone preparing for the holidays, and with much of the publicity about that test having died down, it may be very easy for some to have forgotten that the test was conducted in early November, and that all stations and other EAS participants have an obligation to file with the FCC by December 27 reports on their experience with the test.  The FCC Forms are available on its website.  As we wrote after the test was completed, there were many problems in the transmission of the test, and the failure of your station to receive or rebroadcast the test in unlikely to have a regulatory penalty – the effectiveness of the test being what the whole exercise was designed to measure.  But the failure to file the form to give the FCC the information to assess the effectiveness of the test and to locate problem areas, could well cause enforcement issues.  So, in your holiday scrambles, make time to remember to let the FCC know about your station’s experience with the Nationwide EAS test by next Tuesday’s deadline.   

What’s up for broadcasters in 2012?  What dates do they need to keep on their radar to make sure that they are in legal compliance?  Our broadcaster calendar for 2012 is now available and ready for your review.  It’s an especially busy year – with television license renewals beginning and radio renewals continuing, lowest unit charge windows for primary and general elections, as well as the normal regulatory deadlines – EEO public file reports, quarterly programs/issues lists, children’s television reports, noncommercial ownership reports, regulatory fee filing deadlines, and children’s television reports.  We’ve even thrown in the dates for the upcoming auction of new FM channels, and a reminder about the the filing dates in connection with SoundExchange royalties for audio streaming.  Check out our broadcaster’s calendar, and be ready for the year ahead. 

The FCC this week adopted its rules implementing the CALM Act to address the public perception that commercials are too loud – louder than the programming which they accompany. Congress passed a law last year requiring that the FCC address the issue, and this week’s order adopts these implementing rules which will go into effect on December 13, 2012 (see our articles on the passage of the Act here, and on the Notice of Proposed Rulemaking in this proceeding here). The rules adopted by the FCC allow television stations and MVPDs (multichannel video programming distributors – cable and satellite TV companies) to meet the requirements of the Act by relying on the A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee) setting out a process by which these TV providers can assure that commercials that they insert into program streams are not louder than the programs that they accompany. The rules also allow a safe harbor by which stations and MVPDs can comply with the Act in connection with “embedded commercials”, i.e. commercials that are sent to the station or system by a network or other program supplier.

The specific requirements for compliance with the new rules depend on whether the advertisements that are being broadcast are originated by the station or system, or whether they come embedded from some third-party program provider. For commercial insertions by the station or MVPD, compliance is assumed if they install the equipment required by A/85, use it in connection with their insertions, and maintain and repair it as necessary to keep it in good working order. For embedded commercials, stations can run all the programming through some sort of real time processing to ensure that the audio loudness is uniform. However the Commission was concerned would audio processing would degrade the audio quality of the programming provided by third parties. Thus, the Commission offered an alternative safe harbor with respect to embedded advertising. To comply with the safe harbor, stations and systems would either:

  • Rely on widely available certifications from networks and other program suppliers that they have complied with the standards necessary to assure that the commercials are no louder than the programming in which they are embedded, or
  • The stations and systems will need to perform “spot checks” on programming for which they have obtained no certification. Spot checks are done as follows:
    • Large stations (with over $14 million in annual 2011 revenue based on BIA Media Access Pro information) and very large MVPDs ( those with over 10 million subscribers) needs to annually spot check 100% of their non-certified programming. Large MVPDs (those with between 500,000 and 10 million subscribers) need to spot check 50% of their programming. Small stations and systems are exempt from regular spot check obligations
    • The spot check is a once-a-year obligation, requiring the station or system to do 24 hours of monitoring within a 7 day period, including at least one complete program from each non-certified program supplier, to ensure that the programs comply with the A/85 standards
    • Spot checks will phase out over 2 years as more and more programming is brought into compliance
    • If a spot check reveals an issue, the station or system needs to notify the program provider and the FCC, and do another spot check of the non-compliant programming within 30 days . If the programming continues to be noncompliant, then the programming is outside the safe harbor (meaning that, if a station or system continues to run it, they can be subject to fines)

The Order also set out additional details about what kinds of programming are subject to the rules, the complaint process for those who believe that stations or systems are not complying with their obligations, and waivers for small stations and systems.  These matters are discussed below.

Continue Reading A Summary of the FCC Rules Implementing the CALM Act to Regulate Loud TV Commercials

The FCC’s proposal to replace the never-implemented Form 355 with a new form to document the public interest programming of television broadcasters (to eventually be expanded to include radio operators) was published in today’s Federal Register – setting January 17 as the comment date for those interested in telling the FCC what they think of the proposed new form.  We summarized the FCC’s proposals for the content of the new form in our article here.  This form would also replace quarterly issues programs lists as the way that broadcasters demonstrate how they serve the public interest, and would be included in the new online public inspection file if the proposal for such a file is adopted by the FCC (comments on that proposal are due next week, on December 22, see our notice here). 

The new form documenting the public interest programming of TV stations is proposed to include information on the following types of programs, based on a "composite week" of data – the dates for which may be selected after the fact, potentially requiring the taping of programs so that broadcasters can reach back to get the required data:

  • Local news
  • Local Civic/Government Affairs ("interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups")
  • Local Electoral Affairs
  • Closed Captioning and Video Description (i.e. how much video description is being done by a station, and what exceptions to closed captioning are being claimed for programming broadcast on the station)
  • Emergency accessibility complaints (complaints filed against a station for not making emergency programming accessible to those with disabilities)

For more concerns about some of the proposals, review our more detailed summary of the proposal, and file comments by January 17, or replies by January 30, in this important proceeding. 

With the Iowa primary approaching, political ads are increasing on the local Iowa TV stations.  While the national press may have been focused on some of the recent Rick Perry ads about the end of "don’t ask, don’t tell" and its connection to the celebration of Christmas in the public schools, there has been an even more controversial ad running on Iowa TV stations – anti-abortion spots being run by Randall Terry, the head of Operation Rescue, who has announced that he is running for the Democratic nomination for President – challenging President Obama for the privilege of running in next year’s election.  Some of the planned ads have graphic depictions of the results of abortions.  These ads are disturbing to some, and many viewers (and many stations) are concerned and upset about their being broadcast – so why are stations running them?  For the most part, it is based on the requirement of Section 315 of the Communications Act that prohibits a station from censoring an ad from a candidate for public office.  Not only that, but court rulings concerning the reasonable access provisions of the Communcations Act prohibit stations from channeling potentially disturbing ads to later night hours – limiting stations to a pre-ad disclaimer warning viewers of the content to come and advising them that the ad is being aired by a candidate and is not subject to station censorship (stations should work with counsel to use language on such a disclaimer that has been approved by the FCC). 

But there are issues that stations need to explore to prevent everyone with the money to cover an ad from claiming to be a candidate for office and being able to air disturbing images on broadcast stations.  Under the law, a person has no censorship rights for their ads (and reasonable access rights for Federal candidates) only if they can show that they are a "legally qualified candidate."  In most cases, the question as to whether someone is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting that person.  But once the local election authority receives the papers (and does whatever evaluation may be required), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for Presidential candidates, especially in caucus states, and for write-in candidates, there are slightly different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a "substantial showing" that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election in the caucus would do. What does that mean?

Continue Reading Graphic Abortion Ads In Iowa By Presidential Candidate – And A Seminar on FCC Political Broadcasting Rules

While the FCC is entertaining comments on its proposal to move the public inspection file for broadcast television stations online (see our article here), the existing physical public files of several New York area broadcasters came under examination by the New York Times, according to an article in Sunday’s paper. The article seemed to both make fun of the contents of the required public file, while at the same time noting that the people at several stations contacted by the reporter seemed to be unaware of the Commission’s requirements that the file be made available immediately to anyone who visits a station and asks to see it, and that requiring appointments is not an option. We’ve written in the past about stations that received substantial fines for requiring a visitor to make an appointment to see a station’s files (see, one case where a commercial TV station was fined $10,000, and another where a noncommercial FM was fined $8000 for a similar violation).  If the NY Times article is accurate, stations need to reexamine their policies and be sure that those dealing with the public know of the location of the file and the fact that it must be made available upon request – no questions asked. For more information about the public file requirements, see our Guide to the Basics of the Public Inspection File for Commercial Stations, here.

The second aspect of the report, poking some fun at some of the weird comments from the public found in the file, reinforces some of what I have been told by broadcasters. At a broadcaster meeting last week, I was told stories of station public files that have expanded exponentially since the FCC added a requirement that the file contain emails from the public, as well as letters. Broadcasters report that the letters from the public can now often take up several drawers of a file cabinet, while the remainder of the file fits in a single drawer. While the Commission has tentatively concluded that these letters would not be required to be included in the electronic online file, the recent rulemaking proposal did suggest that the letters be retained at the station, and that perhaps summaries of the written comments be made part of the online file. In addition, comments were requested as to whether social media posts about station operations be kept in some fashion – even though sites like Facebook and Twitter, by their very nature, keep most of what it posted on their sites for the public to view (see our summary of the proposals here). Broadcasters at my meeting last week were very concerned about the volume of paper that would generate, and the need for manpower to review Twitter feeds and Facebook posts almost around the clock to see if any needed to be placed into the file as they related to the station operations.

Continue Reading What the NY Times Article on the Broadcast Public Inspection File Says About the FCC’s Public File Requirements

New ASCAP royalties are on their way to radio broadcasters. ASCAP and the Radio Music Licensing Committee (RMLC) have just announced that they have reached an agreement in principal to return to the percentage of revenue royalties that for so long were paid by radio stations to ASCAP and BMI – a system that was abandoned for a market-based flat-fee system designed to avoid having the licensing organizations as partners that shared in what stations believed would be forever rising radio revenues. Of course, soon after the deal was struck, the current economic troubles hit, radio revenues fell, and the flat fees left many stations paying multiples of what they had been paying under the prior system. A return to the percentage of revenue-based system would seem to be a very good thing. See our previous summary of this royalty controversy, here and here. 

But, as of now, we know very little about the details of the deal – other than it returns to the percentage of revenue basis and that it seemingly will include all revenues of the broadcaster – including the ASCAP royalties due for streaming, other website music uses, and mobile applications (note that these royalties cover only the fees due for the public performance of the musical composition.  In online digital applications, fees still need to be paid to SoundExchange or other rights holders for the public performance in the sound recordings – the actual recordings made by a band or singer of one of those musical compositions – see our articles here and here). The deal with ASCAP will run through 2016.  We’ll have to wait until the final deal is released before a full assessment of its impact can be judged. 

For the RMLC and the broadcasters who financially support it, a deal should limit further litigation expenses with ASCAP (as a rate court proceeding had begun) while the final details of the settlement are hammered out. Watch for those details coming at some point in the future. And, remember, the RMLC also has BMI to deal with – which also had an agreement that expired at the end of 2009. The final royalties to be paid to both of these organizations should be retroactive to the beginning of 2010, so some analysis will need to done as to whether stations have over or underpaid under the interim fees that are currently in place (see our article here) once the details of the ASCAP deal is announced, and a final resolution of the BMI royalty is reached through settlement or litigation. 

The FCC issued a declaratory ruling this week finding that Anderson Cooper’s new talk show appeared to be a bona fide news interview program exempt from equal opportunities under the FCC’s political broadcasting rules interpreting the mandate of Section 315 of the Communications Act. This ruling is another in a series of rulings by the FCC making clear that virtually any interview-type program on which a candidate appears, that is not administered in a partisan fashion and which is regularly scheduled and regularly conducts interviews with newsmakers or discusses political issues, is exempt from equal time. The FCC has, in the past, issued such rulings for programs as diverse as the Phil Donahue program, Geraldo, Howard Stern, Entertainment Tonight, Today and a variety of other programs. As we have written before, these decisions stem from the FCC’s belief that people no longer get their news from the stereotypical Sunday morning news interview program, but instead they find news of interest in programs that might otherwise be considered entertainment or even comedy, but which regularly touch on political topics. As long as these programs are not administered so as to be a mouthpiece for a party or candidate, but instead pick their guest based on some form of journalistic discretion (“journalistic” being a very broad term – one that covers any sort of reasonable judgment as to newsworthiness or topicality), the fact that the program talks to one candidate for a public office does not require a station carrying the program to give equal time to all other candidates for that same office.

At one time, these rulings regularly were issued by the FCC, but they are less frequent now, as the FCC has clearly established the precedent and shown its very liberal interpretation of the bona fide news interview program exemption from equal opportunities. Stations do not need to get a declaratory ruling to operate pursuant to this exemption. Any program that your station produces that is under the control of the station, and which regularly interviews newsmakers and covers political topics, can rely on this exception. So that crazy morning team that occasionally talks to the mayor or the local state Senator can interview political candidates without the fear of having to provide every minor party or write-in candidate an opportunity to be heard. A free speech victory.

All commercial broadcasters (AM/FM/TV and even LPTV) have to file their Biennial Ownership Reports on December 1, beginning a very busy month in the broadcaster’s regulatory world.  December 1 is also the deadline for noncommercial ownership reports to be filed by noncommercial radio stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont, and noncommercial television stations in Colorado, Minnesota, Montana, North Dakota and South Dakota (see our Advisory here).  Annual EEO Public File reports are also due to be in station files for stations in all of the states where noncommercial stations have ownership filings (see our Advisory on the EEO Public File Report here).  License renewals for radio broadcasters in Georgia and Alabama are also due on that date (see our License Renewal advisory here) , as are the Commission’s cut of the ancillary and supplementary revenues made by digital television broadcasters (our summary here).  And all full-power broadcasters need to file their reports on the results of the recent Nationwide EAS Test by December 27 (see our post here).

December also brings a Commission meeting, at which the CALM Act rules will be adopted according to the tentative agenda for the December 12 meeting.   The CALM Act is intended to eliminate loud commercials.  These rules are required by statute to be adopted in December (see our summary of the proposed rules here).  Comments on a number of other FCC proposals in rulemaking proceedings are also due. The FCC just announced  that comments in the proceeding to determine if FM digital operations using the IBOC technology (so-called HD Radio) can operate with different power levels on each side of the main channel are due by December 19 (see our summary of this proceeding here). Comments on the controversial proposal for the online public inspection file for television stations are due on December 22.

Continue Reading December 1 Deadline for Biennial Ownership Reports Begins A Busy Regulatory Month for Broadcasters