Update 10/15/10:  A copy of the Davis Wright Tremaine advisory published on October 13 is now available here and provides further details about the new accessibility Act.

Last week Congress adopted legislation to promote the accessibility of communications and media services. The law, entitled the “Twenty First Century Communications and Video Accessibility Act of 2010”, is expected to be signed into law by President Obama, possibly as early as today, October 8th. The Act contains a number of changes to improve media accessibility, the most notable of which for broadcasters and cable operators is the reinstatement of the Commission’s defunct Video Description rules. The Act reinstates the FCC’s prior video description rules adopted in 2000 and subsequently struck down by the Court of Appeals in the case of MPAA v. FCC following a challenge to the rules by the Motion Picture Association of America, the National Association of Broadcasters, and the National Cable & Telecommunications Association.  At the time, the Court found that the FCC did not have the authority to adopt  video description rules, but Congress has now eliminated that issue by specifically authorizing the FCC to promulgate such rules and instructing it to reinstate the earlier regulations. 

We are currently in the process of reviewing and summarizing the new legislation and expect to publish shortly a Davis Wright Tremaine advisory with complete details and a time line for implementation. Once that advisory is published, we’ll update this post and provide a link.   In the meantime, some of the highlights and specifics of the Act are detailed below:  

The Act effectively reinstates video description rules adopted in 2000 as 47 CFR § 79.3 and struck down in MPAA v. FCC.  The rules will go into effect within one year after enactment (i.e. by October 2011).  Those rules will initially require that:

  1. Affiliates of the Big 4 Networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs will have to provide 50 hrs./quarter of prime time or children’s programming with video description
  2. The top 5 national nonbroadcast (i.e. cable) networks, must provide 50 hrs./quarter of programming with video description;
  3. Broadcast stations and MVPDs with technical capability to do so generally must pass through video descriptions.

Before the rules go into effect, the FCC will conduct a rule making to make certain modifications to the 2000 rules including:

  1. Updating the list of top 25 DMAs and top 5 cable networks, determining the first calendar quarter in which video description compliance will be required, and the phase-in for compliance;
  2. specifying that the rules apply to television programming in digital format only;
  3. specifying that live or near-live programming is not covered;
  4. creating a way for covered programming providers or owners to seek exemptions
  5. allowing FCC to exempt services, programs, and/or equipment (or classes thereof) based on economic burden

After all the above is complete, the rules as modified may be expanded to require a greater number of hours of video-described programming per quarter and to expand the television markets that must comply.  However, such expansion of the rules would only be after the FCC provides Congress with a report on the financial, technical, and operational costs associated with video descriptions, and the availability, use, and benefits of video descriptions.  According to the Act, the Commission may not issue additional regulations unless the Commission determines, at least two years after completing the required reports, that the need and benefit of the rules outweighs the costs of providing additional programming. 

Continue Reading Video Description Returns to Television, Closed Captioning Expands to the Internet

Broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  At last week’s Maine Association of Broadcasters Annual Convention in Bangor, Dave Oxenford addressed these issues, including service marks and copyrights, employment matters, music on websites, the use of social media, privacy and sponsorship disclosure.  A copy of Dave’s presentation on the Legal Issues in the Cyber Jungle is available here.    Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the posts from their audience members, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   

One of the most common issues that arise with radio station websites is the streaming of their programming.  In August, Dave gave a presentation to the Texas Association of Broadcasters providing  a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies.  That summary to Internet Radio issues is available here.  Additional information about use of music on the Internet can be found in Davis Wright Tremaine’s Guide to The Basics of Music Licensing in a Digital Age. 

Dave will be presenting a version of the Cyber Jungle presentation to the Michigan Association of Broadcasters on October 12, a presentation that will be webcast to several other states.  Information and registration for that seminar is available here.

This afternoon, FEMA (Federal Emergency Management Agency) adopted the new digital message format for the Common Alerting Protocol (CAP) standard.  The adoption of this message format is the next step in the implementation of Integrated Public Alert and Warning System (IPAWS), which expands the traditional Emergency Alert System used by radio and television to other communications devices, such as mobile phones and personal computers.  In the words of the FEMA news release issued today:  "This open standard will enable alert messages to be easily composed by emergency management officials for communication with citizens using a much broader set of devices to reach as many people as possible."

More importantly for broadcasters, the adoption of this digital message format triggers the clock for updating their EAS equipment to ensure that it is able to handle the new Common Alerting Protocol.  As we wrote about earlier, as part of an EAS Order adopted by the FCC back in 2007, the Commission mandated that all EAS participants — which includes radio, television, and cable — must accept CAP-based EAS alerts within 180 days after the date on which FEMA publishes the applicable technical standards for CAP.  Thus, with FEMA’s adoption of the CAP messaging standard today it would appear that the 180-day clock has been triggered and the countdown for broadcast stations to acquire CAPS-compliant EAS equipment has begun.  I say "it would appear" because it is a bit unclear whether the 180-day clock is triggered instantaneously by the release of FEMA’s notice.  Trade press this evening is reporting that the FCC has confirmed that the clock has indeed been triggered and is counting down, but no official notice has been released yet by the FCC.  Readers will recall that that the Commission is still in the midst of a proceeding to adopt revisions to its EAS rules to facilitate the CAP standard.  In addition, several parties commenting in the EAS proceeding requested an extension or tolling of the 180-day clock in order to allow broadcast stations more time to acquire the necessary equipment and to allow equipment manufacturers more lead time to meet the demand for new equipment brought about by the rule changes.  In comments today at the NAB/RAB Radio Show today, FCC staff members acknowledged that several requests for extension of time had been made and were being considered along with the comments filed in the proceeding.  We will update this post with further information if and when the FCC releases a Public Notice regarding the 180-day clock, but in the meantime broadcasters should operate under the premise that the 180-day clock is now ticking and start making plans to ensure that they have CAP-compliant EAS equipment in place within 180 days from today. 

The FCC’s long-awaited White Spaces decision, revisiting its authorization of the operation of unlicensed wireless devices in the television spectrum (see our summaries of the intial order here and here), has finally been released.  The FCC decision and associated comments of the Commissioners promise Super Wi-Fi, or Wi-Fi on Steroids, and a host of other wireless digital marvels, without significantly interfering with the incumbent users of the spectrum (principally TV stations and wireless microphone users).  In this order on reconsideration, the FCC addresses many issues raised by many parties to the proceeding – some suggesting that the FCC has not sufficiently protected the incumbent users, while others arguing that the limitations on wireless users are too onerous.  For broadcasters, some of the highlights of the decision include:

  • No change in the interference protections given to TV broadcasters.  Some had suggested the use of various alternative propagation methods to be used instead of the standard FCC method of predicting the protected contours of television stations.  The FCC rejected these proposals, finding that alternatives would not be more accurate in predicting potential interference.  One minor correction including in the database that will be used by wireless devices to protect stations from interference will be included – information on a television station’s antenna beam tilt.
  • No change in the protection of LPTV station protected contours.  LPTV advocates had suggested that greater protection was required for LPTV stations that were still operating in an analog mode.  This was rejected by the Commission, given the impending digital transition for LPTV (see our summary of the LPTV digital transition, here)
  • Greater protection was afforded to cable headends, TV translator receive sites, and the receive locations for Satellite television providers (like DISH and DIRECTV) and other Multichannel Video Providers (MVPDs), so that existing television reception, no matter how it is received will be protected.  The current rules provide that such sites within 80 km from the edge of a television station’s protected contour can register in the database to be used by white spaces devices to determine where they can operate.  The Commission recognized that sites beyond that 80 km distance may also need protection.  Such sites can petition the FCC for waiver of the 80 km distance within 90 days of the effective date of this order, and the FCC will seek comment on whether or not to accord the site protection.  New sites need to register within 90 days of being put into service. 

Some of the other issues addressed by the Commission, including a big change in how these devices will operate to prevent interference, are summarized below.

Continue Reading Reconsideration of White Spaces Decision – FCC Approves Unlicensed Devices for “Super Wi-Fi” in TV Band

FCC Commissioner Meredith Atwell Baker recently delivered a speech in Washington, DC, where she addressed calls for the government to take action to assist the traditional media deal with the economic issues brought about by the new media.  From time to time, there have been calls for the government to assist the traditional media, either through some sort of direct subsidies, or through regulatory changes that could assist in their news coverage to make these entities competitive in the new media world.  While the Commissioner’s speech did not detail those efforts, calls have, for the most part, not suggested direct government subsidies to support traditional news media sources.  Instead, more indirect efforts have been suggested to insure that these media sources continue to serve their communities.  Calls have been made to change tax laws to allow newspapers to operate as nonprofit entities (while still soliciting advertising).  In a draft FTC option paper, there was a suggestion of taxing commercial media to provide more support to noncommercial public broadcasting entities.  Other proposals have been more direct – simply mandating more news and public affairs programming from broadcasters (with little or no discussion of the source of the revenues for such mandates).  In her speech, the Commissioner noted that some suggestions may be forthcoming from the FCC’s own Future of Media report due at the end of the year (see our summary of the issues that they are exploring here), but she seemed to rule out these types of proposals, instead suggesting that the Commission could assist companies meet the new media challenge by loosening FCC restrictions on ownership.

The Commissioner suggested that no government action to bail out the media is necessary to preserve service to the public – citing the many examples of how that service is provided through new media sites that serve all sorts of communities and community groups – providing timely and detailed information on specific topics, often on a neighborhood level.  We have made that same point on these pages – the new media is already filling any void that may exist in local media coverage.  Some of these sites are produced by old media companies – as TV stations, newspapers and others develop microsites targeted to very local needs and interests.  Other sites are totally independent – developed by local interest groups or new media entrepreneurs.  So how can the Commission help these sites to develop?

Continue Reading FCC Commissioner Baker Suggests No Government Support for Media, But Possible Relaxation of Broadcast Ownership Rules

Interested in a new FM radio station?  Now might be your chance.  The Commission today announced an upcoming auction, designated as FCC Auction No. 91, offering licenses for 147 new FM channels in various communities across the country.  The auction will begin on March 29.  Today’s public notice merely lists the channels to be auctioned and the proposed minimum bid in the auction to be associated with each channel, and asks for comments on the procedures that will apply in conducting the auction.  We would expect that applications to participate in the auction will probably be due sometime in or around January, 2011.  The list of the 147 licenses to be offered for sale is available here.  The FCC Public Notice asking for comment on the auction procedures is available here. 

Parties who are interested in bidding for any of these channels will be able to submit short form applications indicating the channels in which they are interested.  As stated above, we would expect these applications will be due sometime early in 2011, so that the FCC can process those applications and receive the necessary upfront payments from parties interested in the auction in time for the auction itself to begin in March.  Thus, parties who are interested in any of these channels should start their due diligence process now, and determine which channels may be of interest, and which channels can actually be built in such a way as to cover areas that an applicant may want to serve, so that they can be ready to file their applications.

Continue Reading FCC Plans March Auction for New FM Stations – 147 New FM Licenses for Sale

On Friday, the Commission released a Further Notice of Proposed Rule Making (FNPRM) seeking input on completing the transition of all low power television stations (LPTV) and TV translator stations to digital operations.  Driven by the transition of all full power TV stations last year and the guidance from the National Broadband Plan, which recommended setting a deadline of 2015 for the transition of LPTVs to digital in order to increase efficiency in the TV bands and assist in the reallocation of those bands, the Commission’s rulemaking turns to the remaining analog television operations in the spectrum, i.e. LPTV and TV translator stations.  The Commission, having noted a significant increase in the past year of LPTV stations obtaining authority for, and actually switching to, DTV operations, concludes that "low power television stations should now begin to focus their time and resources on developing and implementing a digital conversion plan." 

In response to the main question of "when?", the Commission suggests a date in 2012 as the hard date by which all LPTVs and TV translators would have to complete the construction of digital facilities and cease analog operations.  While a specific date in 2012 is not offered, the Commission believes that three years after the June 12, 2009 full power transition should be a sufficient time period for completing the transition.  And of course, given that it is now September 2010, that really means that LPTV stations would have between 15 and 27 months from today to complete the transition.  The FNPRM does seek comment on alternative time frames or transition mechanisms, but notes that an adoption of an earlier transition date in 2012 might adversely impact some LPTV stations, which could "transition to digital only to find that their digital channel is no longer available as a result of the spectrum reallocation that is one of the recommendations in the Broadband Plan."  Such stations would then be forced to transition a second time.  Given that the Commission has not yet actually commenced a proceeding to implement the spectrum reallocation recommended in the Broadband Plan, this comment is a bit troubling.  Clearly, if the Commission is actually going to reallocate the spectrum as suggested in the National Broadband Plan, it should do so first before it mandates a DTV transition for LPTVs.  Or at the very least, it shouldn’t mandate such a transition until it can ensure that LPTV stations are transitioning to digital on a channel that won’t subsequently be reclaimed and re-purposed for a competing wireless broadband operation.  In acknowledgment of this, the FNPRM seeks comment on whether the analog termination date should be by the end of 2015 or after the "recommended reallocation of spectrum from the broadcast TV bands". 

Continue Reading Next Up in the DTV Transition, Low Power Television Stations

As the media has reported extensively this week (for example here and here) the FCC is poised to tap into the television spectrum to allow the use of that spectrum on an unlicensed basis, potentially leading to a wave of innovative unlicensed devices, including potentially turbo-charged Wi-Fi.  On the tentative agenda released recently for the next open Commission meeting, to be held next Thursday, September 23rd, the Commission has included an item entitled:  "TV White Spaces Second MO&O:  A Second Memorandum Opinion and Order that will create opportunities for investment and innovation in advanced Wi-Fi technologies and a variety of broadband services by finalizing provisions for unlicensed wireless devices to operate in unused parts of TV spectrum." 

As watchers of the TV white spaces issue will recall, the Commission adopted an Order in late 2008 to permit the operation of unlicensed devices in the so-called "TV white spaces", which is the spectrum in the TV band that is not actively occupied by a television station in a particular geographic area.  (An earlier advisory by Davis Wright Tremaine summarizing the Commission’s 2008 Order can be found here.)  Following the adoption of that Order, over a dozen parties sought reconsideration of the Commission’s decision; those petitions remain pending.  It is not clear whether the proposed Order would be an Order on Reconsideration, but presumably it will address the issues raised by these petitioners.  In addition, the NAB (National Association of Broadcasters) and others filed an appeal in the Court of Appeals for the D.C. Circuit seeking to challenge the FCC’s white spaces Order.  That appeal is on hold pending the Commission’s resolution of the Petitions for Reconsideration.  Despite the unresolved objections, in late 2009, the FCC moved forward with putting a spectrum management structure in place that would establish a privately maintained database that would permit coordination in order to locate unused spectrum in the TV band in a particular area.  We summarized this step in an earlier blog entry here.  In early 2010, nine parties submitted proposals to be designated TV Band Device Database Managers, but to date the matter remains pending. 

Continue Reading FCC Ready to Tap Returned TV Spectrum with New White Spaces Order

If a broadcaster or other FCC regulatee has not paid their regulatory fees when they are due, the FCC’s computer system will show a "red light" on the company that owed the fee – and the FCC will not grant any applications filed by that company.  As it is, it can take days, and sometime weeks, to straighten out issues about the non-payment or late payment of fees.  Well, the process may get more difficult in the near future as, according to a Public Notice released today, the FCC is changing its financial system in October – which may make the system unavailable from October 1 through October 18.  Thus, problems with past due fees, and possibly even fees paid in connection with new applications, may not show up in the Commission’s system during that period.  Even for time-sensitive new applications, where the FCC wants to know if the appropriate application fee has been paid before an application is granted, delays may occur.  Thus, the FCC warns applicants to plan their filings accordingly to avoid this period, if possible.

The Public Notice seems to anticipate that fees paid by check, as opposed to using the on-line payment system, will be subject to greater processing delays.  So review the Public Notice, and plan accordingly, to avoid any unnecessary processing delays during this period. 

Interested in a brand new full power digital television station in Atlantic City, New Jersey, or Seaford, Delaware?  Then the FCC has just what you’re looking for, provided that you’re ready, willing, and able to build the station from the ground up and don’t mind a low VHF channel.   The Commission today issued the first auction notice regarding Auction No. 90 for the auction of two new full power commercial television stations.  Having amended the DTV Table of Allotments earlier this year to drop in DTV Channel 4 at Atlantic City, New Jersey, and DTV Channel 5 at Seaford, Delaware, the Commission has moved quickly to the competitive bidding stage and starting the process to offer these new channels to interested parties.  Today’s Public Notice is the first step in the auction process and seeks comment on the rules and procedures for the auction, including the proposed minimum opening bid amounts that it has set for each station, namely, $200,000.  The auction rules proposed by the Public Notice are consistent with those used in other recent broadcast auctions and don’t really offer any surprises. The Commission does not propose a date for the proposed auction and that will be set by a future auction Notice.  Comments on the Commission’s proposed auction procedures and minimum bid amounts are due by September 30th, with replies due by October 15th. 

By allocating and offering these new VHF channels for commercial television operations, the Commission is satisfying Section 331 of the Communications Act of 1934, as amended, which directs the Commission to allot at least one VHF TV channel to each state to the extent technically feasible.  Given the recent and ongoing debate over the possible reclamation of television spectrum or changes to the television interference protections,  it seems a bit counter-intuitive that the Commission is moving quickly to offer these two new full power TV stations, particularly in the (generally speaking) congested Mid-Atlantic Region.  Further, given the issues encountered by other DTV stations in operating on low VHF channels, Channels 4 and 5 may not be seen as prime spectrum, again particularly in the congested Northeast.  Both of those things said, however, a full power TV station is still a full power TV station.  And cable and satellite must-carry rights are hard to come by, not to mention the fact that the stations are located in Atlantic City, NJ and central Delaware, respectively.  So unless something radical happens in the next 12 months — say like all consumers migrating to the consumption of television via the Internet instead of broadcast, cable, or satellite television — it’s likely that there will be a fair bit of interest in the auction of these two new stations.