The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission’s ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

  • For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
  • For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
  • For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. 

Continue Reading FCC Plans Hearings on Environmental Impact of Tower Registration Program – Follow Up to Court Case on Impact of Communications Towers on Birds

In yet another example of the importance that the FCC places on emergency communications and safety issues, an FCC Enforcement Bureau District Field Office issued a Notice of Apparent Liability, proposing to fine a radio station $25,000 for violations including an EAS system that was not operational, as well as a tower that needed repainting and with lights that were not functioning properly.  Together with various other issues – including missing quarterly issues programs lists – the FCC found that a $25,000 fine was appropriate.  This is another in a series of recent notices of apparent liability from FCC District Offices, demonstrating the high cost of noncompliance with technical and operational issues at broadcast stations.

On the tower issues, the FCC found that the tower lights, which were required to be flashing, were in either not operational at all or not flashing, and that the licensee admitted that no visual inspection of the lights had occurred in at least a week.  Citing Section 17.47 of the FCC rules, which require a visual inspection of tower lights every 24 hours unless there is an automatic inspection system (which was not present at this tower), the FCC found that there was a violation here.  In addition, the inspection revealed that the tower paint was faded and, in some places, had peeled to reveal bare steel, as the tower had not been painted since 1996.  Towers must be cleaned and painted "as often as necessary to maintain good visibility" under Section 17.50 of the FCC Rules.  The failure of the tower owner to monitor the tower lights resulted in a $2000 fine, and a $10,000 fine was imposed for the failure to repaint the tower.

Continue Reading $25,000 FCC Fine for Safety Related Issues – No EAS, Tower With Painting and Lighting Issues

By December 1, 2010, all commercial and noncommercial digital television (DTV) stations must electronically file an FCC Form 317 with the FCC. This Form reports whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2010.

Under the Commission’s Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis. Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.

All DTV stations — regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority — must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service. The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the FCC’s CDBS filing system.

So does the mid-term election have any impact on broadcast regulation?  While no one knows for sure what the political winds of Washington will have in store, in reading the analysis of the Tuesday election results, I was struck by the conclusions contained in one Op-Ed article in the Washington Post on the message of last week’s Mid-Term elections, and the contrast of that perceived message to an article that had run in the same pages just a week before.  The earlier article dealt specifically with the future of media in the 21st century, and the suggested that, rather than cutting back on taxpayer funding of public broadcasting, as some have suggested, the government should take more steps to provide funding.  this article suggested that there be a tax on commercial broadcasters, and the monies received from the tax should be used to fund public media.  A similar proposal had been included in a Federal Trade Commission staff discussion draft issued earlier this year in the FTC’s exploration of the effect of new technologies on newsgathering.  Both of these proposals were made in the name of providing funding to public broadcasting sources to produce more news in light of the struggles of commercial news outlets in today’s media world.  The FCC’s own Future of Media task force is expected to issue a report before the end of the year on how the government should take steps to ensure that the media in the 21st century provides citizens with the information that they need to make informed decisions on civic issues.   Proposals made in both the FTC and FCC proceedings involve everything from changes to copyright law to provide more Federal protection to news reporting, to suggestions similar to those made in the FCC’s localism proceeding for specific mandates as to how much and what kind of news and information programming licensees must provide.

The proposals for the government to get involved in making the media better stuck me as being in stark contrast to the findings of a Democratic pollster reported in Sunday’s Washington Post, finding that the voters in last week’s elections were most interested in a government that was limited and efficient.  Voters were not totally adverse to government involvement – but favored that involvement only in connection with issues where it was perceived that the action could really make a difference, and only where the involvement was clear, efficient and effective.  While this opinion piece had nothing specific to say about media regulation – if in fact the article accurately reflects the message of the election, does it make sense that the government should be getting involved in the decisions about the future of the media?  Will any regulation that comes out of these proceedings be regulation that will be efficient and effective, with a minimum of red tape?  From my discussions with broadcasters, many are afraid that it will not. 

Continue Reading The Mid-Term Election and Broadcasting – What’s the Effect on the Future of Media?

An FCC Enforcement Bureau District Office today issued a Notice of Apparent Liability, proposing to fine an AM licensee $25,000 for not having a meaningful staff presence at the station’s main studio, and for not being able to produce a public inspection file when the FCC inspectors visited the station.   The station was being operated by another party pursuant to a Local Marketing Agreement ("LMA") and, when the FCC inspector showed up, none of the employees at the main studio identified themselves as an employee of the licensee.  Not having any employees at the main studio, and the additional inability to locate a public file for the station, resulted in the FCC proposing a $25,000 fine ($7000 for the lack of employees at the main studio, $10,000 for the lack of a public file, and an upward adjustment to reach the $25,000 total as the licensee had a series of prior violations).

The fact that this station, like so many others in this time of economic upheaval, was operating under an LMA highlights what the FCC has said so many times in the past about the staffing of such stations.  A station licensee cannot just sign an LMA, and leave the station to the control of the program provider.  Instead, the licensee must oversee the operations of the station, and have its own employees physically present at the station on a day to day basis to do so.  The decision today cites a 20 year old case for the proposition that the licensee must have both management and staff presence at the station on a full-time basis to be considered meaningful.  In other cases, the Commission has said that the there need to be a manager and a staff employee of the licensee who report to the studio as their principal place of business on a daily basis, and at least one of these employees must be physically present at the station’s main studio during normal business hours.  Here, where there was no one employed by the licensee at the station when the FCC inspected it, the fine was issued.  So, if you are operating under an LMA, make sure to observe these staffing requirements, or risk a fine from the FCC.

As we wrote about about back in September, the FCC has allocated two new DTV stations in the Mid-Atlantic region, one in New Jersey — Channel 4 in Atlantic City — and one in Delaware — Channel 5 in Seaford).  With the release yesterday of its further Public Notice, the Commission has now officially slated the auction of the two new channels for Tuesday, February 15, 2011.  In the auction Notice, available here, the Commission formally adopts the rules and the minimum opening bids for the auction, setting the starting point for each construction permit at $200,000.  Applicants interested in participating in the auction will need to put at least that much on deposit in order to be eligible to bid, and will be required to start the bidding at that amount.  And while $200k is the starting point, there is no limit to the ultimate purchase price. 

Short Form Applications on FCC Form 175 must be submitted by 6:00 PM ET on December 15, 2010 in order to participate, and upfront deposits are due by 6:00 PM ET on January 21, 2010.  The FCC will hold a Mock Auction on February 11, 2011 to allow eligible bidders to test out the bidding interface, and the real thing will kick off on February 15, 2011.  As we discussed in our earlier post, given the looming issue of incentive auctions and spectrum repacking, as well as the reception issues attendant with low VHF channels, it will be interesting to see who turns out to participate in the auction, but as evidenced by the minimum opening bids, there’s still plenty of value in a full power television construction permit and the cable and satellite must-carry rights that go along with it. 

The Copyright Office has just released a Notice of Inquiry asking whether Federal protection should be extended to sound recordings recorded prior to 1972.  A sound recording is a song as recorded by a particular artist.  Sound recordings were first protected under Federal law in 1972.  Prior to that, unauthorized recordings or reproductions of an artist’s recoding were policed under various state criminal and civil law.  While the Copyright Act has provided for the protection of pre-1972 sound recordings first registered in other countries, US sound recordings recorded prior to 1972, have not received Federal copyright protections.  Many have assumed that this also exempts pre-1972 sound recordings from royalty requirements under Section 114 of the Copyright Act – i.e. the royalties paid by Internet and satellite radio and other digital music providers under the statutory license.  How would a change in the law affect Internet radio operators?

That is one of the questions that is asked by the Notice of Inquiry.  Many Internet radio operators have not excluded pre-1972 recordings from royalty payments based on any exception that may exist for pre-1972 sound recordings, as the possibility has not been widely publicized.  Moreover, some copyright holders have suggested that the digitization of older songs may somehow bring pre-1972 recordings under the coverage of the Copyright Act, or that there may be state remedies that are somehow the equivalent of the Federal public performance right.  Others may just not want to go to the trouble of determining which copyrighted songs are subject to the Uruguay Round Agreements Act (making the non-US pre-1972 sound recordings subject to US Federal law).  The Copyright Office’s Notice of Inquiry asks what impact the inclusion of pre-1972 sound recordings would have on many undertakings – including the archiving and restoration of sound recordings, and on the current benefits that copyright holders and others enjoy under state laws.  In addition, it asks about the benefits and issues that would arise under Section 114 of the Copyright Act – the section that sets out the statutory license under which most Internet radio companies operate.

Continue Reading Copyright Office Asks if Federal Protection Should be Extended to Pre-1972 Sound Recordings – What’s the Impact on Internet Radio?

The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week’s joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states.  Initially, I conducted a seminar for broadcasters providing a refresher on their EEO recruiting obligations set out under FCC rules.  With some public interest groups calling for stricter enforcement of a broadcaster’s EEO obligations, and with the license renewals for Oregon and Washington State radio broadcasters coming up in 2013 (with TV the next year), broadcasters cannot slack off on these important obligations to widely disseminate information about job openings and to educate their communities about broadcast employment issues as required by the FCC rules.  Slides from my PowerPoint presentation on a broadcaster’s EEO obligations are available here.  Broadcasters looking for more information on EEO obligations can review the Davis Wright Tremaine Guide to the EEO rules, here, and our most recent reminder about the obligations for the annual EEO public inspection file report, here.

At a second session, we discussed the variety of legal issues facing broadcasters in the current environment.  Many of the same issues discussed in this session were also discussed in my Top Ten List of Legal Issues to Keep Broadcasters Awake at Night, details of which can be found here.  Some specific questions were raised during the Oregon-Washington session include questions about the FCC rules covering contests that stations conduct, and the rules that apply to such contests.  See our blog post on some of those issues here and here.  The obligations for the public file of broadcasters are also set out in our advisory, here.  Another issue that broadcasters should remember is the new obligation for their advertising contracts to include terms that state that advertising is not sold for any discriminatory purpose, to avoid no-urban, no Spanish dictates (see our post here for details).  As we wrote recently in connection with fines issued to a couple of stations for multiple day-to-day violations of the FCC rules, the attention to these details now will avoid major financial headaches for broadcasters later, and potentially long-term issues at license renewal time as well. 

Last week, we wrote that the FCC is going ahead with a rulemaking looking at how broadband needs may require some reallocation of the TV spectrum to wireless uses.  The initiation of a rulemaking on that issue is planned for the next FCC meeting in late November.  With that proceeding about to begin, the FCC today froze all applications for new Low Power Television (LPTV) stations and for TV Translators, and for major changes in existing LPTV and TV translator stations.  Over a year ago, after not having accepted applications for a decade during the DTV transition, the FCC allowed the filing of applications for new LPTV stations and TV translators in rural areas.  Finding that much of the demand for new translators has been met in these rural areas in the intervening period, the FCC has now determined that, until the spectrum needs for television and broadband are more certain, it would not accept any more applications for these stations. It appears that the long-planned window for LPTV stations in major markets will not happen in the foreseeable future.

The freeze does allow for the filing of minor changes to LPTV and TV translator stations, for applications to flash cut to digital, and for displacement applications if a full-power station precludes the continued operation of such a station on its current channel.  LPTV and translator stations still operating on channels 52 through 69, which have already been reallotted for wireless uses, can also file displacement applications during the freeze.

Continue Reading FCC Freezes Applications for New LPTV and TV Translator Stations While Contemplating How the Broadband Plan Will Affect the TV Spectrum

Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC’s Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they’ve heard that excuse many time.  If the fence is open when they arrive, expect a fine.

Continue Reading Non-Functioning EAS, An Unavailable Public File and Open Tower Site Gates Result in FCC Fines of $5500 and $3500