After a series of FCC meetings where the only mention of broadcasters was in connection with taking TV spectrum for wireless broadband, the tentative agenda for the next FCC meeting, to be held on March 3, 2011, is full of broadcast issues – issues that could have broadcasters wishing that they were ignored once more.  The biggest issue is the initiation of a proceeding to re-examine the retransmission consent process by which television broadcasters negotiate with cable and satellite companies for payment for the carriage of their signals.  But also on the agenda are proceedings to look at rural radio services and whether the Commission should limit the ability of broadcasters to move stations from rural to urban areas, and the initiation of a proceeding to require that television programmers provide audio descriptions of the action taking place on the video portion of their programs to aid those who are visually impaired.

The retransmission consent proceeding is one which arises after several well-publicized cases where television stations and multichannel video program distributors (like cable and satellite television providers) have had disputes about the amount to be paid to the television broadcaster for the carriage of their signal by the MVPD.  In a few cases, this has resulted in the television station being pulled from the MVPD for some period of time until the dispute can be resolved.  Some MVPDs have argued that there should be more oversight over the process by which television stations can force the MVPD to pull the station’s signal until the retransmission negotiation is completed.  MVPDs argue that viewers, who can get the signal over the air as it is made available by the TV station for free, should not be held hostage to the negotiations and should not suffer when the station is pulled from the MVPD to further the TV station’s negotiation posture.  Broadcasters, on the other hand, argue that the system is working, that the number of stations who have been pulled from an MVPD is few, and that the MVPD should pay for the valuable television signal, just as it pays for other programming that it carries from cable networks.  The FCC is expected to ask whether some reform of the process, and perhaps some government oversight or mandatory mediation, should be required.

Continue Reading Next FCC Meeting Full of Issues for Broadcasters – Retransmission Consent, Moving Rural Radio Stations Toward Urban Areas, and TV Video Description

Fines for noncommercial broadcasters who air acknowledgments of their donors and contributors that sound too much like commercials have been a problem area for many noncommercial educational radio and television stations, and have resulted in significant fines from the FCC.  The FCC allows "enhanced underwriting announcements" that identify a sponsor, what their business is, and where they are located, but such information must be provided in an objective, non-promotional manner.  Earlier this week, I conducted a seminar for noncommercial broadcast stations who are members of the Maine Association of Broadcasters and the Connecticut Broadcasters Association.  During the seminar, we discussed the FCC rules that govern fundraising done on such stations.  The PowerPoint slides from that presentation are available here, and provide an outline of the FCC rules on underwriting, promotions, fundraising and related issues, with samples of announcements that have led to FCC fines for noncommercial stations.

We have written many times about FCC issues related to fundraising and other matters relevant to  noncommercial stations.  We have written articles about cases where the FCC fined stations for enhanced underwriting announcements that were too enhanced, and violated FCC standards by containing prohibited calls to action, inducements to buy, price information or qualitative claims (see, for instance, articles here and here).  Another article discussed fines issued by the FCC for improper underwriting announcements where the announcements were of excessive length, and where the announcement ran in programming that was not originated by the station and from which the station received no consideration.  Another article discussed the FCC prohibition on noncommercial stations interrupting their regular programming to raise funds for charitable groups other than the licensee.  You can scroll though other articles we have written on other legal issues for noncommercial broadcasters by clicking here.  Watch our blog for other issues that relate to noncommercial broadcasters to stay up-to-date on the latest developments about which you should be aware. 

The FCC today issued fines of as much as $12,000 for public file violations.  Together with the fine issued earlier this week for a station that did not allow unrestricted access to its public file, these actions make clear how seriously the FCC takes the obligations of broadcast stations to maintain and make available their public inspection files.  The fines issued today went to both commercial and noncommercial stations, with two noncommercial stations each receiving fines of $8000 for not having complete public files.  Violations are expensive – even if your station is owned by a noncommercial entity.

The largest fine, $12,000, went to a commercial station that, when inspected by FCC Field Inspectors in March 2010, could not produce anything in its public file more recent than 2006.  While the licensee claimed that the documents were kept at the office of the station owner several hundred miles away, the FCC found that the violation of having nothing from more than 3 years of operation was so egregious that an upward adjustment from the standard $10,000 public file fine was warranted.  The two fines issued to noncommercial stations were not as egregious, but still resulted in significant fines.  A review of the details of those cases are instructive as to the excuses and mitigating circumstance that the FCC rejected when the licensees tried to argue for a significant reduction or elimination of the fine.  

Continue Reading Big FCC Fines for Public File Violations for Commercial and Noncommercial Stations

On February 8, 1996, the Telecommunications Act of 1996 was signed into law by President Bill Clinton.  While the Act had significant impact throughout the communications industry, the impact on broadcasters was profound, and is still being debated.  The Act made changes for broadcasters in several major areas:

  • Lengthened license renewals to 8 years for both radio and TV, and eliminated the "comparative renewal"
  • For radio, eliminated all national caps on the number of radio stations in which one party could have an attributable interest and increased to 8 stations the number one party could own in the largest radio markets
  • For television, raised national ownership caps to having stations that reached no more than 35% of the national audience, with no limits on the number of stations that could be owned as long as their reach was under that cap.
  • Allocated spectrum that resulted in the DTV transition

Obviously, the DTV spectrum began the profound changes in the way television is broadcast, and led to the current debate as to whether over-the-air television should be further cut back in order to promote wireless broadband (see our recent post on the FCC’s current proceeding on this issue).  While the other changes have now been in effect for 15 years, the debate over these provisions continue.  Some argue that the renewal and ownership modifications have created too much consolidation in the broadcast media and lessened the broadcaster’s commitment to serving the public interest.  Others argue that, in the current media world, these changes don’t go far enough. Broadcasters are under attack from many directions, as new competitors fight for local audiences (often with minimally regulated multi-channel platforms, such as those delivered over the Internet) and others attack broadcasters principal financial support – their advertising revenue. Even local advertising dollars, traditionally fought over by broadcasters and newspapers (with some competition from billboards, direct mail and local cable), is now under assault from services such as Groupon and Living Social, and from other new media competitors of all sorts.  With the debated continuing on these issues in the current day, it might be worth a few looking back at the 1996 changes for broadcasters, and their impact on the current broadcast policy debate.

Continue Reading On the 15th Anniversary of the Telecommunications Act of 1996, The Effect on Broadcasters is Still Debated

The FCC released a Notice of Apparent Liability for Forfeiture today, proposing a $10,000 fine against a public TV station in Los Angeles for requiring an appointment to view the station’s public inspection file. This case shows how seriously the FCC takes the requirement of open and unfettered access to a broadcast station’s public file.  An FCC agent visited the station’s main studio twice without identifying himself as an FCC employee.  Both times, the station’s security guard refused to let him see the station’s public inspection file or speak with the station manager without an appointment.

On the third visit, the FCC agent identified himself as such and was allowed to view the station’s public inspection file "after a thorough examination of the agent’s badge and several phone calls to [station] personnel." 

The public inspection file was found to be complete. However, the station was fined $10,000 for "willfully and repeatedly" failing to make the public inspection file available.  The FCC stressed that "stations cannot require members of the public to make appointments to access a station’s public inspection file."

Continue Reading FCC Fines TV Station $10,000 for Requring Appointment to View Public Inspection File

The FCC’s auction of new VHF TV channels in New Jersey and Delaware (about which we have written many times including here) has resulted in only three qualified bidders.  Despite this lack of interest in these VHF channels, the FCC seems to be looking at VHF as a way to facilitate its announced plans for the clearing of significant portions of the television spectrum for wireless broadband use.  The Commission this week set the comment date – March 18, 2011 – on ways to overcome the issues that have been posed to TV stations that have remained in VHF channels after the digital transition.  In the same proceeding, the FCC also seeks comments on allowing TV stations to share the same 6 MHz channel, with both stations retaining their cable and satellite must-carry rights.  That same proceeding implies that we may well have seen the last new over-the-air television stations.  This crucial proceeding on the future of the television band requires careful attention by all parties who may be affected by the many proposals contained in this relatively compact Notice of Proposed Rulemaking. 

The first part of the FCC’s proposal (about which we previously wrote here), is to look at ways to get some of the television stations to give up their current channel to allow the FCC to use it for broadband, and having that station share another station’s channel to continue to provide its program service on what is the equivalent of a digital subchannel.  The proposal to encourage multiple TV stations to share the same 6 MHz channel raises many issues.  First, the FCC recognizes that the proposal may result in some television stations giving up their ability to broadcast in High Definition (one of the principal reasons for the initial transition to digital), but suggests that stations sharing the same channel could work out "dynamic arrangements" to allow sharing the spectrum flexibly, increasing the portion digital bandwidth allocated to one station when it has programming that would benefit from higher definition, while switching some of the bandwidth allocation to the other station at other times. 

While the Commission assumes that each station will continue to exist as an independent station even when sharing a channel with another station, many of its questions in this proceeding seem to signal uncertainty about this conclusion.  Issues on which the Commission seeks comment include:

  • What effect will channel sharing have on the deployment of HD programming and mobile television?  The Commission does not ask about 3-D television, which some broadcasters have begun to experiment with, and might be worth a comment if there are those who expect that to be part of the television future that could be affected by channel sharing arrangements.
  • In channel sharing, would each station be able to maintain a Standard Definition signal at all times?
  • The Commission assumes that each station sharing a single channel (and thus a single transmission facility) would retain a separate license, and be individually responsible for FCC-rule compliance (e.g. EAS, indecency, children’s television, political broadcasting, etc).  How would responsibility over the technical compliance be apportioned?
  • Should commercial and non-commercial stations be allowed to share the same channel?  Could commercial stations share channels that have, to this point, been reserved for noncommercial educational uses?
  • Will there be a loss in service to the public from such combinations?  Will there be television "white" and "gray" areas created, i.e. areas where there will be no over-the-air television service or only a single service?
  • Should cable and satellite service be included when evaluating questions of loss of service?
  • What impact should channel sharing have on other FCC rules, like the media ownership rules?

Perhaps the biggest issue with channel sharing is the cable and satellite carriage issue, which raised a number of issues for the Commission.  The issues, summarized below, also demonstrate the Commission’s tentativeness in its conclusion that two stations sharing the same channel are really independent stations.

Continue Reading While Few Vie for New VHF TV Stations in NJ and Delaware, FCC Sets Comment Date on Improving VHF Digital Reception and TV Channel Sharing With Must Carry Rights As Ways to Help Clear TV Band for Broadband Users

When the FCC looks to adopt new rules or policies through rulemaking proceedings or through other significant cases, there are often companies, associations and individuals trying to influence the decision on these matters.  Such discussions with FCC decision makers are permitted, but the parties trying to influence the FCC’s decisions must file notices in the Docket of the proceeding on which they were commenting, summarizing the discussions that were had, and the issues that were discussed.  These notices are called "ex parte notices" and the rules dealing with the disclosure of the lobbying being done on these FCC issues are called the "ex parte" rules.  The FCC has just issued a Report and Order that revises and updates those rules to require more detailed and frequent disclosures.  Our Davis Wright Tremaine advisory on these updates  is now available.

The changes include clarifications that require written disclosures even if the parties involved don’t believe that any new information was conveyed or new arguments raised, mandatory electronic filing of most notices, an extra day to file most ex parte notices (two business days instead of one), but expedited filing in cases where presentations are made in or close to the "sunshine period" (the period just before the decision, when comments to decision makers are generally limited to those requested by the FCC staff).  The FCC also decided, for now, not to include ex parte filing obligations in connection with comments made on the FCC’s social media sites (e.g. its blogs, twitter feed and Facebook pages).  Finally, the Commission asked for more comments on whether there should be corporate disclosures made in connection with ex parte notices – whether companies should be required to identify their communications interests and whether trade and public interest groups should be required to identify who supports these groups positions.  Comments on how such a requirement could be implemented, and whether the burden that it imposes would be worth the benefit it provides, are due 45 days after publication of the notice in the Federal Register.  Again, for more information, look at the Order, or at our firm’s Advisory.   Be sure to comply with these rules, as one of the order charged the Office of General Counsel and the FCC’s Enforcement Bureau with policing violations of the rules, and authorizing fines for repeated or egregious violations. 

The FCC today upheld a $4000 fine issued to a broadcaster for broadcasting a telephone conversation without first getting the permission of the people on the other end of the line, denying reconsideration that the broadcaster had sought – arguing that the fine violated its First Amendment rights.  The telephone conversation that led to the fine was between a station employee and two airport officials, about a controversy concerning the local airport.  As summarized in our original article about that decision, the alleged violation arose from a call by the station employee to the airport officials to talk about the local controversy.  The employee allegedly identified himself as a station employee, and started to ask questions – without specifically stating that the call was being broadcast.  Even though the airport officials kept talking once they knew that the call was being recorded, the FCC still fined the station $4000, finding that the violation occurred once the officials said "hello" on the phone without having been told beforehand that the call was being broadcast.  The decision denying reconsideration is most notable for its long discussion of the First Amendment, which the station argued should override the FCC’s rules against broadcasting a telephone conversation without prior permission.

The broadcaster argued that, as in any case restricting speech rights, the FCC needed to show a compelling interest to restrict a broadcaster’s free speech rights.  Here, the broadcaster argued, no such compelling interest justifying the FCC’s blanket rule against broadcasting a conversation without getting prior approval had been shown.  The broadcaster made the point that this was not some case of a wake up call to a visiting celebrity, or a spoof call to a prominent person where the caller was not identified, but was instead a case of a reporter calling a news source for comment on a news controversy.  The subjects knew that they were talking to the station, and thus should have assumed that the substance of their statements might end up being broadcast.  The mere fact that their actual statements were being broadcast live should not, contended the broadcaster, be a sanctionable offense. 

Continue Reading Rule Against Broadcast of Telephone Conversation Without Prior Permission is Constitutional, Says FCC

The FCC is now accepting Form 175 applications for FM Auction 91 – an auction of 144 new FM channels across the country.  Applications are due between now and February 10.  We wrote about the auction here, and the list of channels to be auctioned is available here.   So, if you are interested in a new FM channel, act now!

While this auction is proceeding, in a recent case, the FCC addressed what to do with new FM channels that are not yet set for auction.  The FCC regularly receives petitions for rulemaking, seeking the addition of new FM channels.  Once allotted, these channels may sit on hold for a year or more before being listed for an auction like that now starting.  There are many such channels awaiting auction now, and not included in Auction 91.  During that period between auctions, owners of existing stations may find that these vacant allocations block upgrades or other changes that the owners may want to make to their existing stations.   Until recently, the existing licensee could suggest changes to the new allotments while they were sitting there waiting to be put out for auction – changes including restricting the transmitter site location for that new channel, changing the city of license for the allotment, downgrading it, or even deleting the channel altogether.  As set forth in the recent case, the policy has been to entertain these proposals, unless there was a showing that there was a party ready to file for the vacant allotment.  In the recent case, the FCC decided that no future proposals to change vacant allotments would be entertained, as the Commission believes that all channels have someone who is interested in the channel, or there will be an interested person when the next auction begins.  This policy will govern all future proceedings, with the limited exception that the FCC will entertain a change in frequency for a new allotment, as long as no other changes are made in that allotment (i.e. it stays at the same location and will continue to be able to operate with the same power).

Continue Reading As Applications for New FM Auction Are About to be Filed – FCC Clarifies Rules on Changes to New Allotments

The Commission today released an Order conditionally designating 9 companies to be database administrators for white spaces devices.  As we wrote in our article describing the FCC’s recent decision on reconsideration of its White Spaces order, these administrators will be responsible for maintaining a database of all users of the TV spectrum who must be protected from interference from white spaces devices.  Protected entities include TV stations, LPTV stations and TV translators, cable and satellite receive locations, certain wireless microphone users, and the paths between TV stations and translators.  Each database must maintain all of this information, so that white spaces devices can determine what channels must be protected in areas in which they are operating. 

The conditional nature of the designation reflects the fact that these administrators had requested designation in late 2009, before the recent Order on Reconsideration which adopted the new requirements that all white spaces devices must communicate with these administrators instead of relying on any sort of spectrum sensing.  Thus, the FCC is requiring the proposed administrators to update their filings to reflect that they can meet the new requirements for the maintaining the database.  One of these new requirements is one of security – so that it can be ensured that the users will have an accurate data base from which to operate, without fear of tampering or other abuses.  The FCC will also require that each administrator attend an education session conducted by the FCC, and to go through a rigorous testing period – with tests conducted by the FCC to make sure that the administrator’s service will actually provide the necessary information to protect incumbent TV spectrum users from interference from white spaces devices.

Continue Reading FCC Designates Database Adminstrators for TV White Spaces Devices