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the political editorializing and personal attack rules – have been specifically mentioned in press reports as being repealed, the one vestige of the doctrine that potentially has some vitality – the Zapple Doctrine compelling a station to provide time to the supporters of one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.

Microwave frequencies used by television stations for their TV Pick-Ups for the transport of programming, and by cable systems for their CARS relays, were the subject of an FCC order last week looking to repurpose these frequencies to provide backhaul for wireless broadband and other telecommunications uses.  The Commission’s order sets out to protect existing users, but to allow these frequencies to be used by wireless users in rural areas where there will not be interference to licensed broadcast or cable users.  Our firm’s Broadband Law Advisor Blog summarizes this order and the request for further comments in this proceeding.  Comments are due October 4 and Replies on October 25. 

Advertising from Stephen Colbert’s Super PAC was rejected by Des Moines television station WOI-TV, based on its belief that these commercials would be confusing to Iowa voters.  Colbert, the host of Comedy Central’s the Colbert Report, has formed his own Political Action Committee to run ads during the upcoming Presidential election.  The first ads ran in Iowa this past week – making fun of the amount of third party money that was being spent on political advertising in Iowa and urging voters to vote for "Rick Parry", with an "a" rather than "Rick Perry."   WOI-TV, rejected them, while the spots ran on all other stations in Iowa’s capitol city.  Are there legal issues with this station deciding not to run these ads?

Not at all.  The FCC has said many times that broadcast stations are not "common carriers," meaning that they don’t have to run all advertising time that advertisers want to run on their stations.  Instead, stations pick and choose among the ads that are brought their way, and stations have an affirmative duty to reject ads that they feel are not in the public interest.  So, while many may question whether these Colbert ads were outside of the norms applied to advertising in the public interest (as Colbert himself argued that the station runs many other ads as likely to confuse the public on many issues), the station has the absolute, non-delegable duty to decide on its own what is and what is not in the public interest – with the very narrow exception of candidate ads.

Continue Reading Colbert Super PAC Ad Rejected by Iowa TV Station – Can They Do That?

US broadcasters often complain about FCC regulations on programming, but they don’t realize how easy they have it compared to much of the rest of the world.  I recently spent several days in one of the former Soviet Republics discussing broadcast regulation with broadcaster representatives, employees of the country’s regulatory agency, and members of citizen advocacy groups.  What seemed most surprising to those in this developing capitalist country was the fact that, in the US, broadcasters can change formats at will to react to marketplace conditions.  This is not a freedom enjoyed in much of the rest of the world – even in Western Europe or in Canada.  We’ve written many times (see, for instance our article here) that the FCC does not consider format issues – even where there are citizens complaints about a proposed change in format or a sale of a station that will probably lead to such a change.  In fact, just last Friday, the FCC again reached that same conclusion, finding that it will not prevent a sale because the sale will result in a format change.  The FCC has determined that format choices are a business decision protected by the First Amendment, so broadcasters are free to change at will, without the government interfering in these programming decisions.

In the country that I visited, their regulatory agency issues station licenses with strict format restrictions.  The agency even regulates networks (both broadcast and cable) to make sure that their programming meets the needs of the communities that they are intended to serve and that the programmers comply with various regulatory and structural requirements.  Unlike in the US, where there may be penalties when a company violates the limited program restrictions that are in place (e.g. political broadcasting, children’s television obligations, indecency rules), in many countries, even the decision as to what kind of entertainment programming to offer is subject to government review.  This country is certainly not unique in regulating broadcasting in that way.  In looking at the website of Ofcom, the regulatory authority for the United Kingdom, you can see how closely formats are regulated.  One recent request for public comment (which could not be approved on an expedited pro forma basis as it was deemed to raise significant questions requiring public input before a decision could be made), proposed the following change in the format of a radio station:

Current Character of Service

A RHYTHMIC-BASED MUSIC AND INFORMATION STATION PRIMARILY FOR LISTENERS OF AFRICAN OR AFRO-CARIBBEAN ORIGIN, BUT WITH CROSS-OVER APPEAL TO YOUNG WHITE FANS OF URBAN CONTEMPORARY BLACK MUSIC AND AT LEAST 26 HOURS A WEEK OF IDENTIFIABLE SPECIALIST MUSIC PROGRAMMES (TO INCLUDE REGGAE, RnB AND HIP HOP RHYTHMIC-BASED (e.g. DANCE, CLUB etc).

Proposed Character of Service

A RHYTHMIC-BASED MUSIC-LED SERVICE FOR 15-29 YEAR-OLDS SUPPLEMENTED WITH NEWS, INFORMATION AND ENTERTAINMENT. THE SERVICE SHOULD HAVE PARTICULAR APPEAL FOR LISTENERS IN THEIR 20s AND AT LEAST 12 HOURS A WEEK OF IDENTIFIABLE SPECIALIST MUSIC PROGRAMMES.

Can you imagine a requirement that the FCC look at each proposal of a radio station to make programming changes along the lines set out above?  Some US stations make these kind of changes routinely, trying to fine tune their programming to provide the best service that they can to the public.  Stations in the US do the research to determine what programming they will broadcast, and how to insure that programming will reach the biggest and best audience – and the station’s decisions are not subject to second guessing by the government.  In some of these other countries, the government does the research to determine what format it thinks is best for the public.  While we had more regulation in the past – these systems are obviously far different from what we do in regulating formats today.

Continue Reading FCC Once Again Declines to Intervene In Format Dispute – US Broadcasters Have it Easy Compared to Much of the World

Noncommercial broadcasters get no breaks when dealing with proposed FCC fines, said the Commission’s Media Bureau in two cases released this week.  While many noncommercial broadcasters may yearn for a day when they were treated leniently if violations were discovered – getting off with perhaps an admonishment letter – those days are over, as they have been for some time. In one case released this week, the FCC specifically states that noncommercial broadcasters are no different than commercial ones when dealing with fines (or "forfeitures" as they are called by the FCC).  If the noncommercial broadcaster violates a rule, they will be treated just like a commercial broadcaster, and have to pay the same fine as would the commercial broadcaster.  

Noncommercial broadcasters have often argued that they cannot afford to pay big fines, as their budgets are limited.  Even when noncommercial stations are owned by colleges or local governments, they have limited budgets, and fines don’t figure into them.  But, in two recent cases, the FCC has rejected arguments for the reduction of proposed fines based on financial hardship, in both cases finding that the budget of the station was not important – it is the total budget of the licensee that is important in assessing if a fine is too much (see our post about how the FCC determines if a fine should be reduced because its payment would create a financial hardship on a station).  In the case cited above, the FCC said that it was the local government agency (a metropolitan school district) that was the licensee, and its financial resources should have been assessed in determining whether the proposed fine was too great.  In a second case, it was a state university that owned the station, and the FCC said that it would look to the overall finances of the university in determining if the fine was too high – not the amount budgeted for the station.  In neither case had the licensee put forward a financial showing for the full licensee organization, so the FCC rejected the requests for reductions of the fines based on financial hardship.

Continue Reading FCC Makes Clear Noncommercial Broadcasters Get No Breaks on FCC Fines, Nor on Financial Hardship Showings

When a problem arises with a station that could give rise to a fine, how long does the FCC have to act on that complaint and issue a fine?  How long must a licensee worry about that problem and whether it will result in a fine?  Does a sale cut off liability for a problem when the seller was the licensee?  Two cases released yesterday, one resulting in a fine and the other where one was canceled, help explain the Commission’s policy.  The Communications Act says that the FCC cannot issue a fine (a "forfeiture" in FCC language) if the conduct occurred more than one year ago or before the beginning of the current license term, whichever is earlier.  In these two cases, the FCC was faced with broadcasters who had problems in their last license renewal term – one filed its renewal late, and the other was missing Quarterly Issues Programs lists in its public file.  In the first  case, the FCC on the same day granted a license renewal and issued a Notice of Apparent Liability proposing to fine a station for the late-filed renewal.  In the second case, the Notice of Apparent Liability for the missing QPIs was issued 3 days after the renewal grant.  In both cases, the actions giving rise to the fine occurred far more than one year before the date of the FCC’s Notice of Apparent Liability.  In the case where the renewal grant and the Notice of Apparent Liability were issued on the same day, the FCC held that it could reach back to get the old misconduct, as the new license term had not yet begun when the NOA was issued.  But in the case where the Notice of Apparent Liability was issued three days later, the fine was thrown out, as that 3 day old license precluded the FCC from going after any conduct that was more than one year old.  So, if you get a renewal, you appear to be off the hook for conduct that occurred more than a year ago.  Three days made a $10,000 difference to this licensee. 

But selling a station does not take you off the hook – if you are within the time limits discussed above.  In the case where the fine was upheld, the licensee was no longer the station’s owner, having sold it several years before.  The company argued that, as it was no longer a licensee, it was not subject to FCC jurisdiction, and could not be made to pay a fine.  The FCC rejected that assertion, finding that, because the actions took place when the company was an FCC licensee, and because the FCC acted within the time frames set out above, the fine was proper.  So if you sell a station while an FCC investigation into one of your actions is still pending and that action could lead to a fine, you can’t totally relax and enjoy the sales proceeds, as the FCC can still come after you!

Another EEO audit was announced by the FCC today – hitting about 100 radio stations this time around. The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and supplemental efforts to educate their communities about job opportunities in the media industry.  Today’s Public Notice announcing the audit is here.  The list of stations subject to the audit is here.  The form of the audit letter is available here.  Responses from the audited stations are due by September 12.

All stations should review the audit letter as it provides a good outline of the documents that stations should be retaining to demonstrate their compliance with the FCC’s EEO rules.  For more information about compliance with the EEO rules, see our advisory on the basics of the EEO rules, here, and our most recent advisory on the requirements for the annual EEO public inspection file report, here.