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.  

Continuing its implementation of STELA (a.k.a. the Satellite Television Extension and Localism Act of 2010), the Commission last week released an Order granting the application of satellite television provider DISH Network, LLC, and allowing DISH to once again import distant, out-of-market broadcast television signals.  In its Order approving DISH’s application, the Commission agreed that the DBS provider:  1.) had initiated local-into-local carriage in all 210 markets, including 29 markets in which it had not previously offered local signals; 2.) is predicted to provide a good quality satellite signal to 90% or more of the households in each of the 29 previously unserved markets; and 3.) that there are no technical failures that would preclude DISH’s continued compliance with these first two elements.  Having met these requirements, DISH has satisfied the statutory requirements established by STELA and may now once again avail itself of the compulsory copyright license in order to offer distant television broadcast signals to qualified subscribers.  With the Commission’s Order, the previous court ruling from 2006 that had barred DISH (then Echostar Communications) from offering distant signals is effectively moot and DISH is back in the business of importing distant signals.  This is a big step for DISH and one that it pushed hard to include in STELA.  And of course the upside is that now DISH subscribers in all 210 television markets have access to local television stations via DBS — provided that DISH and the local stations have reached agreements for carriage, which was not yet the case according to the one party who commented in the FCC’s proceeding. 

In another sign of just how closely the FCC monitors contests conducted by broadcast stations, the FCC this week issued a Notice of Apparent Liability (a notice of a fine of $4000) to Nassau Broadcasting for being imprecise in the wording of the contest rules for a contest to be held at one of its stations.  In the rules of the contest, the station stated that entries would be accepted "through June 13, 2008."  In fact, the contest was conducted on the evening of June 12, and the station cut off entries to the contest on June 12.  When a listener went to enter the contest on June 13, and was told that she could not enter as the prize had already been awarded, the listener filed a complaint at the FCC.  The FCC, reading the language "through June 13" to mean that listeners could enter the contest up to and including that day, fined the licensee $4000 for misleading its listeners as to the proper rules for the contest it conducted.  This is another indication of just how seriously the FCC’s Enforcement Bureau is taking the enforcement of Section 73.1216 of the Commission’s rules, which requires licensees "to fully and accurately disclose the material terms" of any contests that it conducts, and to "conduct the contest substantially as announced or advertised."  Broadcasters need to be very precise in their wording of contest rules, and make sure that they carefully observe the details of the rules that they adopt.

In this case, it seems likely that the licensee was simply imprecise in its wording – stating that entries would be taken "through June 13" when it meant "before June 13."  This would have seemed evident from the fact that the rules said that the winner would be announced on the morning show on June 13.  Clearly, if the winner was going to be announced on the morning of June 13, it wouldn’t do much good entering after that time.  But the ambiguity in the rules is construed by the FCC against the party who prepared the rules – as is evident from the finding in this case that these rules did not fully and accurately describe the rules of the contest (and actually holding the contest on the night of the 12th instead of the morning of the 13th probably didn’t help much).  So what should a broadcaster do to make sure that this kind of ambiguity does not hit them in one of their contests?

Continue Reading A $4000 Fine After a Complaint About a Broadcast Contest – Make Sure that Contest Rules are Precise

Are you ready to file your next license renewal application?  It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues).  Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us – beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011.  Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close.  Television station renewal applications will be due on a state-by-state basis beginning one year later – starting with TVs in DC and the same three states in 2012.  A schedule for the radio renewal filings is available here.  With these deadlines almost upon us, what should stations be doing now to get ready? 

In the last renewal cycle, the biggest source of problems dealt with public file issues.  Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies.  In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files.  These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area.  If that service is ever challenged, you will need the reports to demonstrate how your station’s programming met the needs and interests of your city of license and the surrounding area.  Check out our last advisory on the Quarterly Programs Issues Lists, here.

Continue Reading FCC License Renewal Application Cycle Begins in Less Than A Year – What Stations Should Be Doing to Get Ready

Even though there has been a request to put on hold the FCC’s EEO enforcement (about which we wrote here), filed by a prominent Washington DC organization that promotes the participation of minorities and new entrants in broadcast employment and ownership positions, the FCC today announced that it is launching another round of EEO audits – this time only auditing radio stations. The FCC has said that it will audit about 5% of all broadcast stations annually to make sure that they are widely disseminating information about job openings, recruiting from all community organizations in their service areas, and educating their communities about job openings through so-called "supplemental efforts."  To ensure compliance with these obligations, the Commission has launched this round of EEO audits, with responses due from audited stations on or before September 27.

The list of audited stations is available here.  The FCC’s letter setting out the information sought from the audited stations is here.  The Commission also released a Public Notice reminding all broadcasters with 5 or more full-time employees that, if they have a website, that they are required to post their annual EEO report on that site.   For more information about the FCC’s EEO requirements, see our comprehensive memo on the FCC’s EEO requirements, available here.

While most of the FCC’s political broadcasting rules have remain unchanged for almost 20 years, each year there are a few new wrinkles that arise, and seemingly a few misconceptions that make the rounds among advertising agencies that work with political candidates.  One such misconception that seems to be circulating this year is that an ad for a state or local political candidate does not need to have their voice or picture to be a "use" under FCC rules.  Only "uses" are entitled to lowest unit rates and subject to the no censorship provisions.  For some reason, agencies in several states have tried to convince broadcasters that, as long as a spot has a sponsorship identification at the end (and, for television, a textual sponsorship identification 4% of screen height for 4 seconds), that spot is a "use."  But that is not correct.  A "use" requires that the recognizable voice or picture of a candidate be in the spot – and that is true even for spots for state and local candidates.  Some advertisers may be confused by the change in Federal laws (now itself almost a decade old) that required that Federal candidates identify themselves in their ads and personally state that they approved the message of the ad,  Perhaps some of the advertisers think that, because the law for Federal candidate is so detailed, and because it does not specifically cover state candidates (though several state laws now have imposed the same obligation on state and local candidates in their states), there is no requirement at all for state and local candidates to appear in their ads.  But they are not correct – for a spot to be a use, a candidate him or herself must have a recognizable voice or image in that ad.

While it is not illegal for a station to run a state or local candidate’s ad when the ad does not have a candidates voice in it, there are important ramifications for the station if the spot is not a "use".  First, without the candidate’s voice or picture, the ad is not entitled to lowest unit rates.  There has been some controversy, not settled by the Federal Election Commission and perhaps subject to interpretations under state election commission rules, about whether a station that charges a candidate lowest unit rates for a spot not entitled to such rates may be making a corporate campaign contribution to that candidate, which is prohibited under Federal law and in most states.  Most importantly for the stations, if the spot does not have the candidates voice or picture in it, the spot is not covered by the ‘No censorship" provision of Section 315 of the Communications Act.  That provision prohibits a station from rejecting a candidate’s ad based on its content.  But, because the station can’t reject the ad based on its content, the station has no liability for the contents of the ad.  Conversely, if the ad does not have the appearance by the candidate in it, then the station is free to reject it based on its content, and thus the station could theoretically have liability for the content of the ad.  As we approach a heated election season where stations don’t want the obligation to check the veracity of every claim made by one candidate about an opposing candidate in an attack ad, stations should be careful to insure that spots purchased by candidates are in fact uses, containing the recognizable voice or picture of the candidate – even for state and local candidates. 

Continue Reading Remember that Political Ads By State and Local Candidates Need to Have Candidate’s Recognizable Voice or Picture to Be a Use

The FCC recently fined a station $8500 for not having an operational EAS system for almost two years, and for not having a main studio that was manned during normal business hours. The EAS fine was evident, as the station did not dispute that it did not have an operational EAS system in place.  It did, however, challenge the conclusion that it should be fined for having a main studio  that was not manned during normal business hours.  The licensee argued that the studio was not manned because of the precarious financial state of the station following the termination of an LMA. It said that, when faced with the choice of taking the station off the air because it could not afford to pay a staff to man the main studio or violating the staffing requirements, it decided to violate the rules.  The FCC said that the lack of financial resources was not an excuse for operating within the rules, and thus issued the fine (though reducing the cumulative amount of the fine based on the station’s inability to pay more).

The Commission did suggest that the station could have asked for a waiver of the main studio staffing requirements based on its financial distress (though it did not say if it would have granted such a request).  But making the choice to violate the FCC’s rules without even trying to ask for permission was essentially asking for trouble.  The FCC’s policies require that stations have main studios manned during normal business hours,  Two employees are supposed to be based out of that studio, using it as their principal place of business, and at least one of them must be physically present and available at the studio during the business day.  Observe those rules, or risk an FCC fine.