I conducted a webinar on the FCC’s EEO rules for the Texas Association of Broadcasters on November 30, 2010.  In conducting the webinar, I reminded broadcasters of the many ways that their EEO compliance can be monitored by the FCC – either through EEO random audits, through mid-term EEO Reports on FCC Form 397 (which were filed by Texas TV stations this past April), or through the filings that are made at license renewal time (which comes up in April 2013 for Texas radio, and April 2014 for Texas TV).  In discussing the FCC’s EEO audit process, I mentioned that we were about due for another round of EEO audits from the FCC.  And sure enough, the FCC today gave notice of a new round of audits – though this time limited to Multichannel video programming distributors (MVPDs), principally cable systems.   A list of the systems to be audited in this round of EEO audits can be found in the FCC’s Public Notice about the audit, here.

The PowerPoint presentation from the TAB webinar is available here.  For more detailed information about the FCC’s EEO policies for broadcasters, you can review the Davis Wright Tremaine’s Guide to the Basics of The FCC’s EEO Rules.  For details of the annual EEO public inspection file report, which, by April 1 of each year, stations in Texas need to place in their public inspection files and post on their websites, see our most recent EEO Public Inspection File Report advisory for stations in New England, Georgia, Alabama, Minnesota, Montana and the Dakotas, which have public file reports due to be placed in their public files today. 

The FCC today started an examination of the future of the spectrum currently used by broadcast television, beginning the formal process of implementing the ideas raised in its Broadband Plan of repurposing some of that spectrum for use by wireless broadband technologies. Specifically, the FCC adopted a Notice of Proposed Rulemaking, seeking comment on a number of issues. While the full text of the FCC’s order has not been released, many of the issues for consideration can be gleaned from the comments made at the FCC meeting. In the initial presentation made about the NPRM, it was stated that the principal issues to be addressed in the NPRM were:

  • Allowing new primary allocations in the television spectrum for fixed and mobile wireless users.
  • Providing a framework that would allow two or more broadcast television stations to share a single 6 MHz channel, retaining full must-carry rights for each station, while allowing for the return of spectrum to the FCC to be auctioned for wireless uses
  • Looking at ways to increase the value of VHF television channels (channels 2 through 13) for DTV use, including proposals to allow stations operating on such channels to operate at higher power and to increase performance standards for indoor antennas

Co-primary uses could be important for many TV users, as currently LPTV and TV translator stations are secondary services, implying that such services might be preempted by new primary wireless users.  The enhancement of the VHF spectrum would be important to any attempt to dedicate significant spectrum to wireless broadband without substantial disruption to over-the-air television, as without the use of those channels (which are underutilized, particularly in urban markets, as they have proved to be very susceptible to interference and do not provide as broad coverage as VHF analog service did), the ability to repack the TV spectrum to clear portions of the spectrum for wireless would be very restricted in the major metropolitan areas where any spectrum crunch is likely to be most acute. 

As FCC Chairman Julius Genachowski stated, this was an efficient presentation on an important issue. The explanation of the proposals took far less time than each of the Commissioner’s individual statements, all of which raised important issues that will be addressed in this proceeding.   The FCC public notice about this proceeding is available by clicking here.  But an examination of each of the Commissioner’s statements (which are available through the links on their names, below) is important to understand the scope of the issues to be addressed by the FCC. 

Continue Reading FCC Adopts Notice of Proposed Rulemaking Looking to Reallocate Some TV Spectrum to Wireless Broadband

Many station owners think they can adopt any name, positioning statement or slogan for their station so long as no one else in the market is using the exact same name or slogan.  That thinking is often incorrect, and can be very costly if a name is adopted and has to be changed later because it infringes on someone else’s intellectual property rights.  Nicknames and slogans used in station advertising or promotion are controlled by trademark law.  Even a station’s call sign, which must be approved by the FCC, cannot be too similar to an in-market competitor’s call sign without running afoul of trademark law.  You may have read about recent litigation concerning the station nicknames "Bob" and "Bob FM."  In that case, there is apparent contour overlap between two separately owned stations using the same name.  But trademark law can come into play even when stations are not in the same market and do not have overlapping contours.

Trademark rights can be established in one of two ways.  The first station to use a name or slogan can establish priority within that station’s geographic market or contour.  Alternatively, one can file an application for registration of a station name or slogan at the US Patent and Trademark Office (the "PTO"), and thereby obtain nationwide rights in that name or slogan, if no one else had prior use or a prior application.  Since trademark applications can be filed on an intent-to-use basis, a station can establish priority for a mark it is not yet using.  This is why a trademark search is so important prior to using a mark. 

Continue Reading Looking for a New Positioning Statement, Slogan or Name for Your Station? – Consult a Trademark Attorney First

Yesterday, the FCC released four different items to implement the changes enacted by Congress in the Satellite Television Extension and Localism Act, better known as STELA. With one item addressing significantly viewed out-of-market stations, two items regarding signal prediction and measurements for the reception of DTV signals, and a Public Notice requesting comments and data for a report to Congress, the FCC has wrapped up several open issues regarding STELA. As we have written about previously, here and here (among others), in addition to extending the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers unable to receive a signal from their local network affiliate, STELA raised a few additional issues that the FCC needed to address through various rule makings.  With yesterday’s flurry of activity, the FCC has now addressed those issues.

With the first item, the Commission modified the significantly viewed rules that allow for the importation of distant signals in certain circumstances.  The item clarifies that a satellite subscriber need only receive the local-into-local package as a precondition for that subscriber to receive a significantly viewed station, they don’t have to receive the specific local (i.e., in-market) affiliate of the same network as a precondition to receive a distant station affiliated with the same network.  The item further clarifies that STELA no longer requires that equivalent bandwidth be dedicated to in-market and significantly viewed stations, so much as there is an HD format requirement.  Accordingly, subscribers can only receive a significantly viewed HD signal, the satellite carrier must carry the HD signal of the local station affiliated with the same network.  In reaching its decision, the Commission was cognizant of the tension between the protection of localism and Congress’s intention of achieving closer parity between the rules for satellite TV providers and cable TV providers, and it worked to reach a balance between those two sometimes competing goals.  A copy of the Order is available here.

Continue Reading FCC Releases Multiple Items Implementing Rules for Satellite Television Extension and Localism Act (STELA)

At the urging of virtually the entire broadcast and cable industry, as well as the communications engineering community, the FCC today granted an extension of time for broadcasters and other EAS participants to come into compliance with the new CAP reception requirements – putting off the need for compliance until September 30, 2011.  CAP (the Common Alerting Protocol) is a new format to be used for collecting and distributing emergency communications alerts to all communications platforms.  The FCC, when it adopted CAP, mandated compliance within 180 days of the publication of technical standards for the CAP-formatted alerts by FEMA (the Federal Emergency Management Agency).  Those standards were published on September 30, 2010.  Immediately, questions arose about whether the entire communications industry could be ready to make the transition within that 180 day period (see our post here raising those questions after the FEMA adoption).

Specifically, there were questions about the ability of all the EAS participants being able to budget for the purchase of the equipment and to make those purchases and to then install the new equipment within the specified period.   But more fundamentally, there were questions of whether there was even equipment ready to be deployed, as there was an issue as to whether FEMA and the FCC had to first certify CAP-enabled equipment, before it could be sold.  Those questions remain unresolved.  In today’s order, the FCC, while stating that it does not anticipate a further extension of the deadline, does state that it will initiate a rulemaking to determine if CAP equipment must be certified under Part 11 of the Commission’s rules.  As part of that rulemaking, the Commission will seek comment on whether this extension is sufficient to give all EAS participants time to make the change.  As the FCC repeatedly states that it does not intend any further extensions of the deadline, don’t count on more delays.  But watch this proceeding as, while the Commission states that they intend to complete the process before the new deadline, unanticipated delays could conceivably further extend the mandatory adoption date. 

Operating a communications tower can always lead to issues, but two recent FCC decisions give tower owners some degree of relief. In one decision, the Commission’s Audio Services Division rejected a petition filed against the construction of new facilities for an AM station in Wasilla, Alaska – rejecting claims that the FCC’s RF radiation standards were not strict enough to protect local residents. In another case, the FCC determined that towers using an automatic system to monitor tower lighting – the “RMS system" – did not need to physically inspect the lights on the tower every quarter, as now required, but instead could do so annually, and set up an expedited system for approving tower owners who want to take advantage of this flexibility. 

The first case, dealing with RF radiation, may be dismissed by some as just a decision stating the obvious – that a station that complies with the FCC’s RF radiation standards should be allowed to be constructed. But it is not always so simple. We have had clients face situations in many areas around the country where local residents complained about a new broadcast facility – blaming it for everything from the failures of electronic equipment to the health problems of nearby residents. Various organizations have espoused theories that the FCC’s RF standards are insufficient to protect the public, and their theories are often publicized through the Internet. And sometimes, these complaints can be brought to local elected officials who, not wanting to anger local voters, try to make an issue out of what should be a fairly straightforward analysis.

Continue Reading FCC Decisions Making the Life of a Tower Owner Easier – Easing Approval for Automatic Monitoring, and Making Clear that RF Radiation Standards Are Not Arbitrary

The big news in the music world this week is that Apple finally is able to sell digital downloads of the Beatles catalog in its iTunes music store.  For years, the copyright holders who control the Beatles master recordings have withheld permission to use the Beatles recordings on iTunes and other digital download and on-demand streaming services, seemingly afraid of diluting the value of their copyrights.  There are other bands who have had a similar reluctance to make their recordings available on-line.  While this impasse has now been broken by the biggest name among these digital holdouts, at least as to iTunes, some have asked why it is that the Beatles were never missing from Internet radio, while they were absent from these other services.  The answer is the statutory license under which Internet Radio operates.

While there have been many disputes over the royalties that have been imposed under the statutory license created by Congress which allow non-interactive digital music companies to use sound recordings to provide music to their customers, there is no question that the license has fulfilled one of its primary functions – making sure that there is access by Internet radio operators to the entire catalog of sound recordings available in the United States.  One of the principal reasons that the statutory license was created was the inherent difficulty, if not the impossibility, for a radio-like digital service operating under the sound recoding performance royalty first adopted in 1995 to secure permission from all of the copyright holders of all of the music that such services might want to use.  Thus, Congress adopted the statutory license which requires the copyright holder to make available its sound recordings to non-interactive services, in exchange for the service agreeing to pay a statutory royalty – the royalty now set by the Copyright Royalty Board.  But only non-interactive services, where listeners cannot select the songs that they hear, are covered by that statutory royalty (see our summary here of one of the cases dealing with the question of what is and what is not a non-interactive service).

Continue Reading Apple iTunes Gets the Beatles – Why Internet Radio Had Them All Along

In another of a series of recent decisions, a regional field office of the FCC issued a Notice of Apparent Liability, proposing to fine a licensee $10,000 for missing seven Quarterly Programs Issues lists in its public file.   As there have been so many recent cases raising the same issue, why mention this case?  We highlight it here because of the excuse used by the licensee to try to get out of the fine – the licensee claimed that it was fault of a former employee who was responsible for the file, and that person must have messed up (lost the reports, not prepared them or something along those lines).  The FCC rejected that argument (not for the first time), finding that the licensee, not any particular employee, is ultimately responsible for FCC rule compliance.  Thus, owners need to make sure not only that they have given FCC compliance responsibility for specific FCC obligations to a specific employee, but they also need to be responsible for ensuring that the assigned employee is in fact doing his or her job.  If there is a failure to meet an FCC obligation, the responsibility (in terms of the FCC fine) will almost always land on the shoulders of the FCC licensee.  So delegate – but do so responsibly, and remember to check to make sure that the employees are doing correctly the tasks which they have been assigned. 

The FCC also refused to make any adjustment in the amount of the fine, given that the licensee had admitted public file deficiencies in its last license renewal application.  Given a previous history of noncompliance, the FCC was not willing to adjust the fine.  With the upcoming license renewal cycle, licensees who have previous problems with FCC compliance should be particularly attuned to this admonition – as the FCC seems unwilling to show any leniency to repeat offenders (see our summary of another recent case where the FCC actually adjusted a fine upwards from the amount suggested in the FCC’s schedule of base fines, based on a 13 year old violation for a similar offense). 

In the "what were they thinking" category, the Society of Broadcast Engineers reports that there is a commercial for the new Skyline movie that contains an EAS tone – that can actually set off EAS receivers.  If a station is operating without an attendant, with the EAS on automatic, a receiving station could be automatically start retransmitting its primary station if it hears the tone in the ad – causing the receiving stations to start running the commercial thinking that it is an EAS alert, and it might continue running that commercial and subsequent programming from the primary station for several minutes as there was no termination code in the commercial.  This is not the first time in recent months that this issue has arisen – only a few months ago an ad by BP for its ARCO subsidiary also contained alert tones.  While this may be a mistake by commercial advertisers aiming for reality in their some marketers, as opposed to a cynical marketing ploy to take over stations that received the signal from the primary station on which the ad was run, this type of ad could be a violation of the FCC’s rules – so broadcasters should be vigilant in policing these ads.

Section 11.45 of the Commission’s Rules states:

No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS. Broadcast station licensees should also refer to § 73.1217 of this chapter.

While this rule also refers broadcasters to Section 73.1217, the prohibition on broadcast hoaxes that might cause substantial harm, Section 11.45 is an absolute prohibition on the use of EAS tones for other than an emergency – whether or not harm is caused.  Stations need to police these ads – and advertisers themselves need to be aware that these ads are prohibited under FCC rules.