As our colleague Brian Hurh wrote today on our sister blog, www.broadbandlawadvisor.com, the Video Programming Accessibility Advisory Committee has released its Report to the FCC on the closed captioning of IP-video programming as required by the 21st Century Communications and Video Accessibility Act passed last October.  A copy of the report released today is available here.  As we explained earlier here, the Accessibility Act directed the Commission to enact rules that would require that once a television program is published or exhibited on television with closed captions, any subsequent distribution of that programming on the Internet must include closed captions.

The Accessibility Act requires that the FCC revise its closed captioning rules within 6 months of the Committee’s report, thus, new FCC closed captioning rules must be in place no later than January 13, 2012.  (The report is dated July 13, 2011, though it appears to have been released July 11.)  The report proposes the following compliance schedule based on the date the FCC’s revised rules are published in the Federal Register:

  • Within 6 months: programming that has been prerecorded and unedited for Internet distribution;
  • Within 12 months: live and near-live programming
  • Within 18 months: programming that has been prerecorded and substantially edited for Internet distribution.

In addition, the report sets forth the Committee’s recommendations for performance objectives, technical requirements, and technical capabilities and procedures related to closed captioning on the Internet.   The report also contains a discussion on new technological developments such as emerging protocols and other innovations that may affect the delivery of Internet closed captioning in the future.

While today’s Report makes certain recommendations, it is up to the Commission to now act expeditiously in order to commence a rule making proceeding, solicit comments, and actually promulgate new rules regarding captioning of video over IP.  The Advisory Committee’s report is an important (and necessary) step towards captioning rules for certain types of Internet video, and we will continue to follow the Commission’s actions in this area.

At today’s FCC open meeting, the Commission adopted a Notice of Proposed Rule Making ("NPRM") to begin the process of implementing the Local Community Radio Act of 2010, passed by Congress last year, and to chart a path to the licensing of new LPFM stations.  (See our earlier posting here regarding the Local Community Radio Act of 2010.)  While today’s item does not attempt to address all of the issues raised by the Act, it starts the implementation process and seeks to develop processing policies for FM translator applications, resume the licensing of pending translator applications, and establish a framework for licensing new LPFM stations.  

One of the most significant aspect of the NPRM is the Commission’s tentative conclusion that the earlier "ten application limit" that it previously imposed on pending FM translator applications would not further the statutory mandate of licensing new LPFM stations, as the limit does not take geographic or market differences into consideration and the remaining translator applications would still block new LPFMs in numerous markets, according to the Media Bureau’s analysis.  In today’s item, the Commission proposes to eliminate the earlier ten application limit and consider other alternatives for potentially dismissing previously filed translator applications in order to ensure that new LPFM applications can be granted.  Specifically, the FCC seeks comment on several options, including:  1.) Dismissing all pending FM translator applications and make plans for a new joint window for both LPFM and FM translators; 2.) Not dismissing any FM translator applications, but rather establish a priority for future LPFM applications; and 3.) Adopting a market-specific translator application dismissal processing policy to clear out pending FM translator applications in certain markets. 

The NPRM also raises questions regarding how the Commission should assess the needs of the local community — which the Act instructs it to consider when making licensing decisions between LPFM and translators.  These questions go to the fundamental nature of each class of station and the type of service they can, and/or must, provide to the public consistent with their respective licensing rules.  In addition, the NPRM seeks input on how to interpret the Act’s requirement that translators and LPFMs are to be afforded "equal status".  Here, the Commission starts with the question of whether the Act’s mandate that it treat LPFM and translator "stations" co-equal allows it to give priority to later-filed LPFM "applications" over pending FM translator "applications".  Reading the NPRM it is clear that the broadly worded Act was big on goals and short on specificity, as today’s item now seeks to put the rubber to the road and figure out how to balance the two services, and how exactly to process applications from the two services while ensuring opportunities for new LPFM stations on the one hand, and yet treating FM translators on a "co-equal basis" on the other hand.  

The Commission also seeks comment on processing policies to deter the potential for speculative abuses among translator applicants, and comment on the use of FM translators to rebroadcast the signals of AM stations.  Both the NPRM and several of the Commissioners support the use of FM translators to rebroadcast AM stations, however, the current policy only authorizes such rebroadcasts on FM translators that had licenses or permits as of May 1, 2009.  The FCC asks whether it should extend that policy to permit AM rebroadcasts on FM translator applications that were on file as of May 1, 2009.  The FCC is moving quickly on this proceeding, and Comments will be due 30 days after publication in the Federal Register, with Reply Comments due 45 days after publication.  

 

The FCC has issued a Forfeiture Order, confirming a $4000 fine levied against a Minneapolis TV station for airing a video news release ("VNR") without sponsorship identification.  This case was previously discussed in our March 25th blog entry, when the Commission issued a Notice of Apparent Liability ("NAL") against the station for this violation.  The primary lesson to be learned from this decision is that video supplied for free may require sponsorship ID if furnished for the purpose of identifying a product or furthering a sponsor’s message beyond any independent (i.e., newsworthy) reason a station has for airing it.

In arguing against the NAL, the station put forth several arguments, all of which were rejected by the FCC.  The station argued that its use of a video supplied by General Motors for a story about the popularity of convertibles in the summer was equivalent to use of a company press release, which the FCC has found acceptable in the past.  But the FCC said that use of a press release without sponsorship ID is permitted only if references to products or brand names are "transient or fleeting."  Here, by contrast, the FCC found the identification of GM cars to be "disproportionate to the subject matter of the news report."

Continue Reading FCC Confirms $4000 Fine For Televising Video News Release Without Sponsorship ID

The Third Circuit Court of Appeals has once again questioned the FCC’s determinations on broadcast ownership issues. In a decision just published, Prometheus Radio Project v FCC, the Court reviewed the FCC’s 2007 actions relaxing the newspaper-broadcast cross-ownership rules and adopting policies to increase diversity in broadcast ownership.  These FCC decisions had followed a prior decision of the Third Circuit determining that the FCC’s 2003 Ownership Order, relaxing many FCC ownership rules, was not adequately justified.  The FCC’s subsequent actions on cross ownership were set out in its 2007 order, relaxed the newspaper broadcast cross ownership rules in larger markets through a policy based on certain presumptions that, when met, justified the common ownership of newspapers and radio and television stations in larger markets (and, in some cases, in smaller markets too)( see our summary of this order here and here).  The diversity order, released in 2008 (summarized here and here), adopted a number of rules and policies meant to encourage diversity in media ownership.  In this new decision, the Court found that both the decision as to the newspaper cross ownership rules and the one dealing with diversity policies were wanting, and sent these matters back to the FCC for further consideration. At the same time, the Court upheld the FCC’s decisions not to change the local television ownership rules (allowing common ownership of 2 TV stations only when there are at least 8 independently owned stations in a market, and where the combined stations are not both among the Top 4 in their markets) and to retain the sub-caps for radio ownership (the rules that allow one entity to own up to 8 stations in a single market, as long as there are no more than 5 in any single service, i.e. AM or FM).

The discussion of the newspaper-broadcast cross-ownership rules was entirely procedural.  While certain public interest groups had argued that the 2007 revision to the cross ownership rules allowed too many broadcast-newspaper combinations, a number of media companies argued that it allowed too few.  The Court didn’t address either contention, instead focusing on the process by which the FCC adopted the rules.  When the Court addressed the 2003 rule changes, it sent that decision back to the Commission questioning the basis for the "diversity index" that the FCC had adopted to measure when transactions resulted in too much concentration in a market, and specifically instructed the FCC to give the public notice and an opportunity to comment on the specifics of any new proposal that was adopted.  The Court felt that there were too many obvious flaws in the diversity index which could have been discovered if the public had been given a chance to review its details before it was adopted.  In asking for comments following the Court’s remand, the recent decision concluded that the FCC had given the public only a cursory description of the issues that it would consider on remand with respect to the cross-ownership issue when the FCC issued its request for public comment.  The substance of the Commission’s policies which were adopted, setting out presumptions in favor of cross-ownership in larger markets and against it in smaller markets, was not suggested in the request for public comment, but instead was first floated in a newspaper Op-Ed by then FCC Chair Kevin Martin.  While the FCC asked for comment on that proposal, parties were given less than a month to file comments, and a draft decision embodying the proposal was already circulating at the FCC before the comment period had even ended. This process prompted much outcry at the contentious FCC meeting at which these rules were adopted (see our summary here).  The Court looked at this process, and determined that the public had not been given an adequate opportunity to address the specifics of the FCC proposal, and had given the appearance of having pre-judged the outcome of the case.  Thus, this week’s decision sent the FCC’s 2007 order back to the FCC to seek more public comment, and to develop rules based on those comments. 

Continue Reading Court Tells FCC to Give More Consideration to Newspaper-Broadcast Cross Ownership Rules and to Policies to Promote Broadcast Ownership By Minorities

As an FCC Forfeiture Order issued today proves, even noncommercial educational college radio stations need to comply with FCC rules to avoid big fines.  The Commission confirmed a $10,000 forfeiture against Colby-Sawyer College in New Hampshire originally proposed in 2007.  The college argued that the forfeiture should be reduced based on the station’s noncommercial educational status, but the FCC said there is no policy justifying reduction on that basis.

We have previously noted Commission forfeitures in the range of $10,000 to $14,000 for public file violations.  Today’s decision confirms that the commercial or noncommercial status of the station is not a factor when it comes to compliance issues.  In this case, the station was missing 14 quarterly issues/programs lists from its public inspection file.

The Commission has become quite vigilant lately, issuing fines and forfeitures for numerous rule violations.  The bottom line is that all FCC rules must be followed to avoid monetary penalties, commercial or noncommercial status notwithstanding.

The FCC’s recent Notice of Proposed Rule Making outlining changes to the FCC’s Part 11 Rules governing the Emergency Alert System ("EAS") was published in the Federal Register today.  Today’s publication establishes the timing for submitting Comments in this proceeding.  Comments will be due by July 20, with Reply Comments due by August 4th.  By its Third Further Notice of Proposed Rulemaking, released on May 26, 2011 (“NPRM”), the Commission suggested changes to its EAS rules intended to integrate Common Alerting Protocol or "CAP" based alert messaging into the existing EAS while laying the foundation for transitioning to next generation alert mechanisms. The current "SAME" protocol ("Specific Area Message Encoding") will continue to be used.  But CAP messaging, which allows for more information to be conveyed with each alert, would be overlaid on the system.  CAP is an IP based system, with messages delivered to stations by the Internet, and then converted into SAME for broadcast by the participating stations. 

Please see our longer article from last week, which can be found here, discussing in detail the specific questions raised by the Commission’s NPRM.  In addition, David Oxenford recently participated in a Town Hall Webinar on EAS and CAP issues, that was held on Thursday, June 16, 2011, sponsored by the National Alliance of State Broadcast Associations and the NAB.  More information about the webinar can be found here, including an archived copy of the June 16th Town Hall Webinar, which should be available shortly. 

Parties interested in filing comments with the Commission should gather their thoughts as the clock is now ticking.  Comments can be filed with the Commission in paper, or electronically via the Electronic Comment Filing System. 

Politico ran a story last week, indicating that a number of radio talk show hosts were paid to endorse, during their shows, certain causes and groups that might be of interest to their listeners.  The article suggests that the endorsements included live read commercials, as well as other comments made during the course of the program, as asides or during discussions of the issues of the day.  While we have not reviewed any of these programs, and have no idea if the story is accurate or how any paid mentions were handled during the program, radio stations do need to be cautious in this area, and consider the sponsorship identification issues that may be raised by such conduct.  And this consideration is not just in connection with political talk programs – but wherever any on-air talent receives consideration for making a plug for a product or service on the station.

This issue has already been a big deal on the video side of the media house, with both broadcasters and cable companies having been fined for including material in their programs without disclosing that they had received consideration for the inclusion of the material.  Recently, we wrote about two TV stations who were fined by the FCC for broadcasting "video news releases", where the stations broadcast content from third parties which was deemed to have a promotional message included for the third party’s product, where the station did not specifically disclose that the video material had been provided at no charge to the station.  The provision of the tape alone was deemed to be consideration.  Almost four years ago, we wrote about another station that was hit with a fine when a syndicated TV talk show host was revealed to have been receiving government money to promote a government program (No Child Left Behind), was promoting that government program during his show, and not mentioning that he had received this consideration.  The station was fined – even though they did not produce the program, as they had not inquired about whether any sort of consideration had been received by the host.  The Communications Act puts the burden on stations to reveal sponsors when consideration has been paid for the airing of any programming, and the FCC has said that this burden requires that the station take efforts to make sure that all programming – even that coming from syndicators – complies with the rules.   

Continue Reading Radio Talkers Paid to Endorse Causes During Their Shows? What Should Stations Do?

Among the many things that broadcasters need to remember when they buy a broadcast station is making sure that the tower registration (the "Antenna Structure Registration" or "ASR") for that station is transferred along with the rest of the station assets.  Unlike most registrations and filings done at the time of the Closing of a sale of a broadcast station, the issue is not one of establishing the rights or title to any tower assets that are transferred with the station.  Instead, the registration is to let the FCC know who is responsible for that tower in the event the FCC needs to get in touch with the owner to deal with tower lighting or fencing issues or similar matters.  Many broadcasters may think that this transfer of the tower registration is automatically done when a station is sold, in connection with the FCC approval of the assignment of license or transfer of control.  It is not – a separate filing on FCC Form 854 is necessary.  In a decision just released by the FCC, a fine of $3000 was levied against a broadcaster whose tower was registered in the old owner’s name, 3 years after the tower and the stations that broadcast from that tower were sold to the current owner.

The base fine for an inaccurate tower registration is $3000.  In this case, the FCC reduced a $6000 fine issued because two towers were not registered.  As the two towers were part of a single AM station array, were physically adjacent to each other, and as the current owner was found easily when the station was called, the FCC reduced the fine to $3000.  However, it noted that it could impose a higher fine if there was a more dangerous situation, or if a case arises where it is more difficult to find the real tower owner.  We’ve written about similar fines before.  The FCC views tower registration as very important.  So make sure that the owner of your tower is accurately registered with the FCC – and don’t forget to update the sign at the tower site identifying the ASR, and make sure that the sign is kept in good repair and is visible from a publicly accessible location so that FCC inspectors or others can identify the tower they are looking at, as incorrect signage can increase the amount of any fine for tower site issues.  Note that Section 17.4 of the Commission’s rules, which sets out the tower registration requirements, also requires that tower owners provide all tenants with the tower registration number.  Observe these details, or risk an FCC fine. 

In recent years, FM translators have become more and more important to broadcasters, as they are being used to rebroadcast AM stations and HD-2 channels, giving the programming broadcast on these over-the-air signals new outlets in many markets.  However, there have been some bumps in the road to the introduction of these new outlets.  These bumps have arisen both from attempts to move these translators significant distances without observing all the obligations of FCC rules and policies, and in connection with translator stations that have started operations only to find that there were interference complaints from a broadcaster on an adjacent channel in some nearby market. So, while translator stations have provided many opportunities to broadcasters, those looking at translators to rebroadcast one of their signals should be aware of these potential pitfalls that have arisen in a few cases.

Perhaps the worst case involved an translator licensee in Florida, who was attempting to move translators from the Florida Keys into the Miami area.  Under current rules, an FM translator licensee can only move a translator from one location to another if the current coverage of the translator overlaps with the proposed coverage area of that station, unless the applicant waits for an infrequent translator window (the last was held in 2003) where the application can file a "major change" and would be subject to competing applications, .  Because of this requirement, it sometimes it takes multiple "hops" to move a translator from one location to another where someone might want to use it to rebroadcast an AM station or an HD-2 signal.  At each hop, the translator licensee must build the station, get it licensed, and then file to move to the next location until it is ultimately located at its desired location.  Each hop can take months to process by the FCC, to build and operate.  The recent case shows the problems that can arise in connection with these hops if an applicant attempts to cut corners.

Continue Reading The Bumpy Road of Using FM Translators to Rebroadcast AM Stations or HD-2 Channels

The date for a nationwide test of the Emergency Alert System ("EAS") was announced by the FCC last week, at the same meeting at which the Future of Media report was delivered.  The first ever national test of EAS will occur at 2 PM EST on November 9, 2011. As we wrote in February, the FCC amended its rules to provide for a nationwide test, in addition to the weekly and monthly tests that are already part of the FCC rules.  The nationwide test is to assess the reliability and effectiveness of EAS in being able to convey to the public a Presidential alert.  This test comes at the same time as the FCC has issued a Notice of Proposed Rulemaking to consider amendments to its rules to provide for the conversion to a new method of disseminating EAS alerts – using the Common Alert Protocol (CAP) which is IP based, rather than reliant on the daisy chain over-the-air system that has been used for so long.  One question is whether the deadline for CAP implementation, presently set for September 30, should be extended.  Thoughts about the test and the FCC proposals for CAP implementation are set out below. 

The Nationwide test, even though it will not use the CAP system (which in and of itself may show that the Commission has already recognized that the September 30 CAP implementation deadline will be extended), is still very important for broadcasters.  The FCC, in coordination with the Federal Emergency Management Agency ("FEMA"), will use the results of the test to determine what problems exist in the EAS system and what improvements are necessary to ensure that the EAS functions as a robust public warning system.  As broadcasters in recent years have highlighted their participation in EAS, and the important role that it plays in alerting communities to emergency situations, in connection with many initiatives (including the push to put FM chips in cell phones), broadcasters want to make sure that their performance during the upcoming test will be up to the level that the FCC expects. As all EAS participants will have to report to the FCC on the results of the test, all participants should use the period between now and November to assure that their systems are working and ready to fulfill their obligations under the rules. No broadcaster, cable system or other participant wants to be in the position of having to report to the FCC that their equipment was malfunctioning on the date of the test. And, certainly, no participant wants to forget to file the necessary report when due.

Continue Reading Updates on EAS – A Nationwide Test, and Lots of Questions About CAP Implementation Including Whether More Time is Needed