The FCC just issued a public notice extending the comment deadline in its proceeding to determine how to process the FM translator applications pending from the 2003 FM translator window so as to not unduly preempt opportunities for new LPFM stations.  Comments were originally due to be filed today, but the deadline has now been extended to September 6, based on transportation and communications concerns in light of the disruptions caused by Hurricane Irene.  Reply comments will now be due on September 20.  We summarized the issues in this proceeding here and here.   Many are awaiting the conclusion of this proceeding – including those who have had an 8 year wait for the processing of FM translator applications from the 2003 Window as well as those looking forward to the opening of a window for applications for new LPFM stations.  Presumably, this short delay in the comment deadline will not unduly delay this highly contested proceeding, as the Commission will no doubt have many technical and legal issues to resolve, some stemming need to interpret the meaning of the Local Community Radio Act enacted by Congress late last year.

How do you secure a loan to an FCC broadcast licensee? This was the issue discussed by a case released by the Commission last week – addressing the FCC’s policies prohibiting a station creditor from foreclosing on a broadcast license and also restricting the sale of a “bare license.” While this case involved an action for collection by a judgment creditor, it is instructive as to how any broadcast creditor, including a lender to a broadcast licensee, should act to secure loans or other financial obligations of a broadcaster, and how the creditor can exercise its rights in the event of a default. It is also instructive as to how to proceed to enforce a loan obligation to any FCC licensee – in the broadcast services or in the other services regulated by the FCC.  As the FCC has a long-standing policy prohibiting a lender from taking a security interest directly in an FCC license, lenders need to pay careful attention in documenting loans and in enforcing security agreements upon defaults to make sure that their interests are protected. 

Lenders cannot foreclose directly on a license when a broadcaster defaults on its obligations, as the FCC has made clear that a license is not a property right that can be used for security. The FCC has said that a license is not subject to “mortgage, security interest, or lien, pledge, attachment, seizure, or similar property right.”   As the license cannot be attached, to get at the value of the license if there is a default and the debtor won’t cooperate in a voluntary foreclosure, the Lender has to go to court and have a receiver or trustee appointed to oversee the assets of the debtor. An involuntary transfer to a trustee or receiver pursuant to a court order can be approved by the FCC expeditiously on a “short form” (Form 316 in the broadcast services) transfer application. Once appointed, the trustee can sell the sell the station (pursuant to FCC approval on a subsequent "long-form" application) and distribute the proceeds to the creditors. In the case decided last week, the actions of the local court that was attempting to enforce the rights of the creditor gave the Commission pause.

Continue Reading Securing a Loan to a Broadcaster – Part 1 – FCC Case Clarifies How a Creditor Enforces Its Rights After a Default

Yesterday, the FCC released its Report and Order (available here) reinstating its “video description” rules, which require that certain broadcast stations and nonbroadcast networks provide audio narration of the action depicted in the video portion of the television programming.  The Commission originally adopted such rules back in 2000, but they were subsequently vacated by the D.C. Court of Appeals for lack of sufficient authority.  This past year, Congress rectified that lack of authority by enacting the Twenty-First Century Communications and Video Accessibility Act (CVAA), which was signed into law last October. DWT previously discussed the FCC’s rulemaking to reinstate the video description rules back in March (available here), and has now released a further advisory on the newly adopted rules available here.

In a nutshell, the rules require large-market broadcast affiliates of the top four national networks, and cable operators and DBS providers with more than 50,000 subscribers, to provide programming with audio-narrated descriptions of a program’s key visual elements, beginning mid-2012. While the FCC originally proposed to require full compliance by Jan. 1, 2012, the R&O pushes that date back six months, to July 1, 2012.  Highlights  of the reinstated video description rules are as follows:

  • Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets as determined by Nielsen as of Jan. 1, 2011, must provide 50 hours per calendar quarter of prime-time and/or children’s programming with video descriptions. 
  • The list of the top 25 television markets are those determined by Nielsen as of Jan. 1, 2011. To the extent a station in a top 25 market becomes newly affiliated with a top-four network, it must start providing video description in the same manner as current ABC, CBS, Fox, and NBC affiliates in the top 25 markets, beginning no later than three months after finalizing the new affiliation agreement.
  • Going forward, the video description requirements will extend to major network broadcast affiliates in the top 60 markets beginning July 1, 2015. Rankings for the top 60 markets at that time will be based on Nielsen ratings as of Jan. 1, 2015. 

Continue Reading FCC Releases Order Reinstating Television Video Description Rules

There has been much focus on emergency communications recently, with the East Coast earthquake re-igniting the debate over FM-enabled mobile phones, and with Hurricane Irene forcing stations to gear up for emergency coverage in the coming days.  But even without these unusual events, the emergency communications world has been much in the news, given the current requirement for broadcast stations to be ready for the new Common Alerting Protocol ("CAP"), an Internet-based alerting system, by the end of September, and with the first-ever test of the National EAS system scheduled for November.  The CAP conversion date has recently been the subject of debate in a number of FCC filings – and there seems like a good chance that the September 30 deadline will be delayed – if for no other reason than the fact that the FCC has yet to adopt final rules for the equipment required for such compliance.  The National Test, however, should go on as scheduled.  More on all of these subjects below.

First, the coming hurricane should prompt stations to be ready for potential emergency operations.  The FCC in the past has publicized its Disaster Information Reporting System (DIRS).  Stations can voluntarily register with DIRS to give the FCC a contact person to assess damage after the storm, and to notify the FCC of the need for any aide that the Commission might be able to provide.  During the aftermath of Hurricane Katrina, I was personally involved in discussions with FCC personnel who coordinated with other government agencies to get clearance for diesel tanker trucks to gain access to restricted area to deliver fuel to a client’s radio station that was still operational (on generator power) providing emergency information to Mississippi’s Gulf Coast. The FCC personnel can be of great assistance in such situations, so DIRS registrations may be worth considering.  The FCC’s website also provides helpful information about planning for disaster recovery  and about hurricanes specifically.  FCC emergency contact information is also on their site.

Continue Reading Hurricanes and Earthquakes – Emergency Communications In the Spotlight With CAP Conversion and National EAS Test Coming Soon (Though, For CAP, Maybe Not As Soon As We Thought)

We wrote about FCC Chairman Genachowski’s announcement of the repeal of the Fairness Doctrine as part of the FCC’s repeal of 83 media related rules.  Well, the full text of the repeal was released today, and the Fairness Doctrine really was the only real headline.  For broadcasters, all of the other deleted rules were even less relevant than the Fairness Doctrine (which had been effectively dead for almost 25 years before it was repealed).  10 of the 83 deleted rules dealt with the "broadcast flag", an FCC rule for digitally watermarking DTV programming so that copies could be identified by their source – rules that were thrown out years ago by the Court of Appeals as exceeding the FCC’s authority.  Another 57 of the "deleted" rules are rules that are still fully on the Commission’s books – just in a different section of the rule book.  Decades ago, most broadcast rules were moved out of Part 1 of the FCC rules (which deals with general FCC procedures) to Part 73 (which sets out the substance of the rules for broadcasters).  This week’s action merely deletes the 53 rules that remained in Part 1, where the entire text of the deleted rule was to refer the reader to the corresponding rule section in Part 73, where the substantive rules still reside and are still fully enforced (including matters such as the FCC’s EEO rule).  So, when the FCC claims that 83 rules were deleted, that really is not saying much.  These non-substantive changes, combined with the almost meaningless deletion of the Fairness Doctrine rule (see our article on that deletion) don’t bring any regulatory relief, on a day to day basis, to any broadcaster.

Congress is apparently not content with these rule changes.  In a press release  issued this week, Chairman of the House Energy and Commerce Committee, Fred Upton, and the chair of its subcommittee on Communications and Technology, Greg Walden, welcomed the repeal of the Fairness Doctrine, but stated that they looked forward to additional deregulation pursuant to the President’s Executive Order asking agencies to reduce regulation to stimulate the economy.  The release also suggested that the FCC should only adopt rules after the rules were proposed and fully subject to public comment and fully reviewed to determine their effectiveness and their economic effect.  The Congressmen suggested that the FCC had not always done that.  Wonder what regulations they were thinking about?  I’ve got my thoughts (perhaps rural radio or even the decision by former Republican FCC Chairman Kevin Martin to amend the newspaper/broadcast cross-ownership rules following a decision-making process recently criticized by the Third Circuit).  Any nominations from our readers?

In 2009, the FCC adopted a uniform deadline for all commercial broadcast licensees to file an FCC Form 323 Biennial Ownership Report.  The due date for that report was supposed to be November 1 of that year, but was postponed until July of 2010 when problems popped up with the new forms.  The next Biennial Ownership reporting date was scheduled to be November 1 of this year (two years after the originally scheduled date for the first report to use the new form) – but the FCC today issued a Public Notice postponing the filing deadline for one month, to December 1.  This delay was justified so as to give broadcasters, especially those with many media interests held in different companies, more time to complete what can be a cumbersome process of filling out all of the reports and exhibits that need to be submitted.  Reports need to be filed by December 1, but all information still needs to be reported as of October 1 of this year – a standard reporting date that will remain constant each year to give the FCC a snapshot of the composition of ownership in the broadcast world.

The revised ownership report filing processwas adopted so that the FCC could get an accurate report on the ownership of broadcast properties by minorities and women, a goal that has taken on added significance in light of the Third Circuit Court of Appeal’s recent decision in Prometheus Radio Project v FCC, rejecting the FCC’s efforts to diversify ownership in the media through the use of a system giving preferences to qualified entities, i.e. small businesses.  As we wrote last month, the Court found that the FCC’s goal was to promote minority and female ownership, which was not fostered by its concentration on small businesses.  One of the issues on which the Court faulted the FCC was the lack of information about the current broadcast ownership interests of minorities and women, so that the FCC could do a "Adarand study" as to whether there are effects of past discrimination reflected in the current ownership of broadcast stations that need to be remedied by affirmative action efforts based on race or gender.  These new ownership reports are designed to help to provide that information.

Continue Reading FCC Extends Filing Date to December 1 for 2011 Form 323 Biennial Ownership Report – New Significance After Prometheus Court Decision

Yesterday, FCC Chairman Genachowski issued a press release stating that the FCC was abolishing the Fairness Doctrine as part of its clearing of its book of 83 obsolete media rules.  What should the reaction of broadcasters be now that the Fairness Doctrine has been officially abolished?  Probably, a collective yawn.  In 1987 – almost 25 years ago – the FCC felt that it could not enforce the doctrine as it was an unconstitutional restriction on the freedom of speech of broadcasters.  Since then, we have had no instances where the FCC has tried to revive the doctrine.  While, as we have written before, the revival of the doctrine is a political issue that is from time to time bandied about as something horrible one political party or another plans to impose on America, there really has been no serious attempt to bring the doctrine back in this decade.  So the repeal of the actual FCC rule that sets out the doctrine is really inconsequential, as it practically changes nothing.

What remains unknown about yesterday’s announcement from the Chairman is just how far this repeal goes.  While certain corollaries of the Doctrine – including the political editorializing and personal attack rules – have been specifically mentioned in press reports as being repealed, the one vestige of the doctrine that potentially has some vitality – the Zapple Doctrine compelling a station to provide time to the supporters of one candidate if the station provides time to the supporters of another candidate in a political race, has never specifically been abolished, and is not mentioned in the Chairman’s statement.  Zapple, also known as "quasi-equal opportunities", has been argued in in various recent controversies, including in connection with the Swift Boat attacks on John Kerry, when Kerry supporters claimed that they should get equal time to respond should certain television stations air the anti-Kerry Swift Boat "documentary."  We have written about Zapple many times (see, for instance, here, in connection with the Citizens United decision).  What would be beneficial to broadcasters would be a determination as to whether Zapple has any remaining vitality, as some have felt that this doctrine is justified independent of the Fairness Doctrine.  Perhaps that clarification will come when the full text of the FCC action is released.

Continue Reading FCC Repeals the Fairness Doctrine – Who Cares?

The FCC today froze all applications for TV channel 51 by both applicants for full-power and low power facilities.  Channel 51 is immediately adjacent to the parts of the television bands that were reclaimed for wireless uses during the DTV transition.  Wireless users, including CTIA and the Rural Cellular Association, have sought to restrict use of Channel 51 because of the potential for interference to the wireless users in these new wireless frequencies.  Today’s order not only freezes new applications for Channel 51 by both full-power and low power TV stations (including LPTV, TV translator and Class A TV stations), but it also freezes the processing of pending applications for the channel.  At the same time, the FCC has taken steps to encourage existing users of the channel to vacate it, giving low power applicants 60 days to amend pending applications to specify lower channels.

The freeze on applications is supposedly temporary, while the FCC considers a proposal for a rulemaking to permanently clear Channel 51 of TV users to eliminate the alleged interference to wireless users.  But, given the action here, and the FCC’s other actions to clear portions of the TV spectrum for wireless users, it certainly looks like the FCC is predisposed to adopting the proposal of the wireless users to clear this channel.  The freeze affects proposals not only for new channels on this band, but also applications for increases in the facilities of stations already in the band so as to preserve the "status quo."  The FCC will consider waivers of the freeze, but only to replace existing facilities with new ones where the existing facilities need to be replaced or changed due damage by storm, zoning proceedings, or "unforeseen events."  Any new facilities must keep the station within its current coverage area.  No waivers of this requirement will be issued to low power stations – while full-power stations may be able to exceed their current contours only through a waiver request that demonstrates that some expansion is necessary to preserve existing coverage or the quality of service to the public.

Continue Reading FCC Freezes TV and LPTV Applications for Channel 51 – Encourages Users to Vacate the Channel

The debate over repurposing some of the television spectrum for wireless broadband have been raging over the normally quiet Washington summer, as issues as diverse as the budget negotiations, the tenth anniversary of 9-11 and international treaties all play their part in the discussions.  Whatever changes are made could have a profound impact on TV broadcasters nationwide, not just those in the congested metropolitan markets where everyone acknowledges that any spectrum crunch that may exist would be most acute.  This week, Congressman John Dingell, long one of the most influential Congressmen on telecommunications issues, complained that the FCC was deliberately withholding details of its plans for spectrum allocation – plans that the National Association of Broadcasters have challenged as unworkable as they would doom over-the-air television in many markets, especially those near the Canadian border.  With all the issues swirling around the spectrum reallocation debate, the realistic timing of any reallocation of the spectrum and the real impact on the free over-the-air television broadcast industry are becoming major issues being considered in Washington.

The FCC has been pursuing the idea of repurposing some of the television spectrum for wireless broadband use since well before the Broadband Report was issued last year.  As we summarized in our review of the Broadband Report, the FCC suggested that as much as 120 MHz of television spectrum could be reallocated from TV to wireless broadband uses.  The FCC and the consumer electronics and wireless industries have contended that there is a looming spectrum crunch, particularly in major markets, as smart phones, tablets and other connected devices become a bigger part of the lives of many consumers in serving not only their entertainment needs, but also providing information and business services.  The FCC’s Broadband Report thought that as much as 500 MHz of spectrum would eventually be needed, and that 120 MHz could come from the television spectrum, which proponents feel has been underutilized by broadcasters since the digital television transition in 2009.  Proponents of the reallocation contend most consumers get their TV service not over the air, but from cable or satellite providers, so the need for spectrum dedicated to broadcast television is far less than it was 70 years ago when the television service was first popularized.  Broadcasters, of course disagree with that assessment, contending that the digital transition is still very new, and that uses of the digital spectrum – including a mobile DTV service and multicast channels – are just developing.  Moreover, TV broadcasters have argued that their digital offerings, when combined with Internet service, are providing an option to many to "cut the cord" from pay TV options, leading to more over-the-air viewing.  In recent weeks, as detailed below, the National Association of Broadcasters has also been contending that the proposed reallocation would irreparably damage the over-the-air television industry, especially in markets in the Northeast and near the Canadian border where, in some markets, the reallocation would be impossible without ending most or all over-the-air television service.  The radically different pictures painted by the participants in this debate have led to some of the recent charges that the FCC is being less than forthcoming about the manner in which this transition would occur and the impact that it would have on broadcast TV. 

Continue Reading The Debate Continues Over Using TV Spectrum for Wireless Broadband – Incentive Auctions, International Considerations, Deficit Reduction, and Public Safety All Play a Role

The FCC has now released its Public Notice formally announcing the payment deadline for the 2011 Annual Regulatory Fees, which will be due by 11:59 pm E.T. on September 14, 2011.  The fees must be processed electronically using the FCC’s Fee Filer website, which can be accessed here.   That site is now ready to accept the payment of the 2011 Regulatory Fees, and licensees must log-on to the Fee Filer website using their FRN (FCC Registration Number) and password to review the fees that have been pre-populated in for that particular licensee.  While the list of stations and authorizations reflected in the database should be similar to the list from last year, licensees should carefully review the information and ensure that all stations and authorizations held by the licensee are included.  In particular, stations acquired during the year or new broadcast auxiliaries obtained during the year may not appear on the list and may need to be added. Please note, the FCC will not mail a bill or a reminder to broadcast stations this year, so it is the responsibility of each licensee to determine the extent of its reg fee obligation. 

More information regarding the annual regulatory fees, including instructions for submitting the fees, is available from the Regulatory Fees page of the FCC’s website, available here. UPDATE:  In addition, with regard to broadcast radio and television stations, the FCC has made available a “look-up” database to allow licensees of broadcast stations to confirm the amount owed for each particular station. That look-up database is now available at: www.fccfees.com. 

Consistent with the procedures adopted last year, all licensees are required to pay the annual regulatory fees online via the FCC’s Fee Filer website. In order to access the Fee Filer website and remit the regulatory fee payment, licensees must have a valid FCC Registration Number (FRN) and related password. Payment may be made electronically by credit card or debit card, by check or money order, or by wire transfer. If a licensee prefers to remit payment by check or money order, the licensee must first use the FCC’s electronic Fee Filer system to create a Form 159-E voucher generated by the Fee Filer system. That Form 159-E voucher must then accompany the submission of payment by check or money order, which must be sent to the FCC’s receiving bank in St. Louis, Mo. 

As in the past, payments received after 11:59 pm E.T on Sept. 14, 2011, will automatically incur a 25% late payment fee.  So licensees are encouraged to review and pay their reg fees early to avoid any penalty.  For those needing more details, please see the Commission’s full reg fee Order, which contains the 2011 fees for all types of authorizations.