Contrary to recent rumors, the FCC is not out of the television broadcasting business just yet.  In a decision released on Wednesday, the FCC has decided to allocate a new low VHF Television station to the state of Delaware.  Responding in part to comments submitted by Delaware Senator Edward E. Kaufman, and over the objections of a few incumbent television stations, the Commission has decided that the community of Seaford, Delaware, in the southern part of the state, needs a new TV station on Channel 5.  Quoting the Communications Act of 1934, as amended, which directs that "It shall be the policy of the Federal Communications Commission to allocate channels for very high frequency commercial television broadcasting in a manner which ensures that not less than one such channel shall be allocated to each State, if technically feasible," the FCC decided to allocate Channel 5 at Seaford in order to provide Delaware with its only VHF commercial television channel allotment. 

Among the issues raised in opposition were the potential for harmful interference to adjacent stations; consumer confusion if the new Channel 5 were designated as "Channel 5" for PSIP (or virtual channel number) purposes; and the fact that some have advocated reallocating Channels 5 and 6 for use by FM radio.  The FCC concluded that none of these issues was an impediment to the new allocation and it proceeded to drop in the new Channel 5, assigning it Channel 36 as its PSIP channel (which confusingly is the actual over-the-air channel of WTTG(TV) Channel 5 in Washington, DC, which had raised the objection over the use of "Channel 5" as the new Delaware station’s virtual channel number.)  Notably, the Commission dismissed out of hand the notion that it should avoid adopting new channel allotments or accepting applications on channels 5 and 6 because of the proposal to reallocate those channels to the FM radio service, stating that the FM radio proposal was still pending, that the Commission has not imposed a freeze on the use of these channels, and that the idea that the allocation of Channel 5 at Seaford would block any future radio service on Channel 5 is simply speculative.  In addition, although the issue of reception problems associated with digital television stations on low VHF channels was raised by some of the commenters, the FCC’s decision fails to address the issue at all, simply saying that the allocation complies with its technical rules.  Finally, the Commission noted that the addition of Channel 5 at Seaford is not mutually exclusive with proposed reallocation of Channel 2 from Jackson, Wyoming to Wilmington, Delaware, which was rejected by the Commission earlier this year.  The proponent of that move has appealed the FCC’s denial to the Federal courts where it remains pending.  Just how much interest there will be in an auction of a new low VHF channel in Seaford, Delaware remains to be seen, and the FCC will announce a window for interested parties to apply for the channel at some point in the future. 

The FCC today issued a further Public Notice reminding all Video Programming Distributors (VPDs)— including those who might otherwise be exempt from some elements of the closed captioning rules — to register their contact information with the FCC.  All VPDs, including television stations, should have already identified appropriate contact people within their organizations and filed their contact information with the FCC.  Although that info was due to the FCC by March 22, 2010, today’s Public Notice, available here, indicates that many folks still have not yet complied with the new rules.  Accordingly, the FCC is seeking to increase compliance by reminding VPDs of this obligation and encouraging distributors to register their contact belatedly.  All television stations and other VPDs should ensure that they have taken the necessary steps and registered their contact information with the FCC.  While the FCC has exercised its discretion thus far and issued a reminder instead of simply cracking down and commencing enforcement proceedings, video programming distributors are now on notice.  And the next actions by the Commission with regard to this new rule will undoubtedly be more aggressive and could possibly involve enforcement actions.

As we’ve discussed previously, a new FCC closed captioning rule recently went into effect that requires video programming distributors to establish:  1.)  a contact person for handling immediate closed captioning concerns, and 2.)  a contact person for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rule requires that video programming distributors publicize the appropriate contact information and also provide the contact information to the Commission, which will maintain a database open to consumers.  Thus, by March 22, 2010, all television stations and other distributors were to have designated a contact person, posted the necessary contact information on their web site (and in any phone directories the distributor may advertise in), and submitted the information to the FCC.

If stations failed to file that info by March 22nd, they should do so immediately.  The best way for stations to file this information with the FCC is to visit the FCC’s website and submit the information online. The Commission’s website contains a detailed web form with step-by-step instructions to walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov . 

Video programming distributors must keep their contact information current and update both their websites and the Commission’s database within 10 business days of any changes to the information. Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here.

The FCC today issued a Forfeiture Order imposing a $30,000 fine on the licensee of three television stations for the stations’ failure to publicize the existence and location of the Children’s Television Reports for the Stations.  Even at a rate of $10,000 per station, this fine is significant and should serve as a loud, clear reminder to all television stations to publicize the existence and location of their FCC Form 398 Children’s Television Reports.  The FCC considers the reports, which are filed quarterly with the FCC, as an important resource for parents and the community.  And as is clear from today’s decision, the FCC takes the requirement that stations inform viewers about the existence of these reports very seriously.  While stations make a certification each quarter as part of the Form 398 that they are publicizing the reports and informing folks about where copies can be obtained, stations should take a moment to confirm that they are, in fact, following this regulation.

In the case decided today, the licensee itself had brought the issue to the Commission’s attention as part of its license renewal application.  In connection with its renewal filing, the licensee discovered that it had inadvertently failed to publicize the existence and location of the reports during the entire license term.  As required, it disclosed that issue on its renewal application.  Despite the fact that the violation was voluntarily disclosed and was claimed to be based on a misunderstanding, however, the Commission ignored the request for a reduction of the proposed forfeiture and hit the station with a fine of $10,000 per station, finding a repeated and willful violation of the Commission’s Rules. 

Thus, television stations should make sure that they are following this rule by running periodic spots on the station, placing information and links on their websites, and publicizing the Form 398 Reports in any other fashion they see fit.  While the Commission has provided little, if any, guidance over the years about exactly how stations should publicize this information, or how often spots should be run on the station, what is abundantly clear from today’s decision is that stations need to do something throughout the course of their license term to make viewers in their community aware that the Children’s Programming Reports exist and that they are available for public review, both on the Commission’s website and in the station’s public inspection file.  With changes in personnel, software, and equipment that inevitably occurs at stations over time, this is a good time for stations to confirm that their procedures are still in place and are actually being followed to publicize the Children’s Reports.  A full copy of today’s decision is available here.

The FCC today released a Public Notice announcing the next group of broadcast stations subject to a random audit of their compliance with the FCC’s EEO rules. The Notice lists radio and television stations across the country that nust respond to a Commission inquiry and provide information and documentation about their EEO efforts. Annually, the FCC audits approximately 5% of all broadcast licensees to assess their compliance with the FCC’s EEO rules.  As hopefully all broadcasters know, these rules require the wide dissemination of information about job openings at the broadcast stations and "supplemental efforts" to educate communities about employment opportunities at broadcast stations, even in the absence of employment openings.  The FCC’s audit letter requires the submission of two years worth of the Annual Public File reports that stations prepare each year on the anniversary date of the filing of their license renewal applications.  These reports are placed in the station’s public file and posted on their websites (if they have websites). 

Stations subject to this round of audits have until June 1st to respond and submit the necessary materials to the Commission. Note that information needs to be supplied not just for the station named on the list, but also for all other stations in the same "station employment unit," i.e. a group of stations under common control, that serve the same general geographic area, and which have at least one common employee. Previous audits have led to significant FCC fines, and broadcasters who are included on today’s list should take care in preparing their responses. The audit notice should also remind other licensees who were lucky enough to have avoided this round of audits to review their EEO programs for FCC compliance purposes, as they could very well find themselves less fortunate when the next FCC audit is announced.

For more information about the FCC’s EEO requirements, see our comprehensive memo on the EEO requirements, available here.  In addition, today’s Public Notice is available here, with the sample Audit letter available here. The list of radio stations selected is here, and the television station list is here.

With the recent April 15th publication of an FCC Public Notice in the Federal Register, the due date for Comments regarding possible revisions to the FCC’s Emergency Alert System (EAS) rules has been set at May 17th, with Reply Comments due by June 14.  By this recent Public Notice, the Commission has requested  informal comments regarding revisions to its EAS rules in connection with the forthcoming adoption of the Common Alerting Protocol (CAP) by the Federal Emergency Management Agency (FEMA).  So what, you might ask, is “CAP”? 

CAP stands for “Common Alerting Protocol” and is the next-generation protocol for distributing emergency warnings and safety notifications.  In technical jargon it is “an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices.” In layman’s terms, it will allow FEMA, the National Weather Service, a state Governor, or others authorized to initiate public alert systems to automatically format and even target a specific geographic area and simultaneously alert the public using multiple media platforms including broadcast television, radio, cable, cell phones, and electronic highway signs. CAP will also allow for alerts specifically formatted for people with disabilities and for non-English speakers.

As part of an EAS Order adopted by the FCC back in 2007, the Commission mandated that all EAS participants — which would include 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.  According to the FCC, FEMA has recently announced its intention to adopt a version of CAP as early as the third quarter of 2010, which would in turn trigger the Commission’s 180-day requirement.  Given that the Commission’s current EAS rules pre-date the concept of Common Alerting Protocol, the existing EAS rules will likely need significant revision or even replacement once CAP is adopted and implemented. 

Continue Reading Comments Regarding Possible Revisions to FCC’s Emergency Alert System (EAS) Rules due May 17

In two separate Orders today, the FCC issued monetary forfeitures against a cable operator for failure to install Emergency Alert System (EAS) equipment and for various tower violations.  These same violations could have been cited against a broadcaster, so these cases are instructive to both broadcasters and cable operators.  The FCC issued monetary forfeitures of $20,000 and $18,000 against two Texas cable systems owned by the same company.  In both cases, the cable operator failed to install EAS equipment, failed to notify the FAA of a tower lighting outage and failed to exhibit red obstruction tower lighting from sunset to sunrise.   The higher fine related to a system’s failure to display a tower’s Antenna Structure Registration (ASR) number "in a conspicuous place so that it is readily visible near the base of the antenna structure."  

These same requirements apply equally to broadcast stations that have their own towers.   While most broadcasters are aware of the requirement to maintain working EAS equipment, many may not know that  FCC rules require a tower’s ASR to be conspicuously displayed at the base of the tower.  To be compliant, the ASR must be displayed on a weather-resistant surface and of sufficient size to be easily seen at the base of the tower.

Continue Reading FCC Fines for No EAS Equipment, Unreported Tower Light Outage, and No Posting of ASR

The FCC today released a Notice of Proposed Rulemaking asking for public comment on its proposed Regulatory Fees for 2010. These fees are paid annually by most commercial entities that are regulated by the FCC for the privilege of being regulated. Noncommercial broadcasters are exempt from the annual regulatory fees. Collectively, the FCC is proposing to collect over $335 million in fees this year from licensees across the various regulated services. The fees are normally paid in September, and the specific deadline for the payment of this year’s fees will be set by a future Order after the FCC has received comments on, and formally adopted, this proposed fee schedule. The FCC has set a short time for comments, with initial Comments on the proposed fees due by May 4, 2010, and Reply Comments due on May 11, 2010.

As in the past, the Regulatory Fees for broadcast stations are generally based on the Class of Service and the population covered by a station. For the most part, the fees proposed for 2010 for broadcast stations are not much different from the 2009 rates, with the fees for a few categories of television stations actually going down slightly. Additionally, there is no change in the fee proposed for LPTV, Class A, and television translator stations.  The full list of proposed fees across the various categories of broadcast stations is provided below.  A few things to note with respect to the fees with respect to digital television stations. The NPRM proposes to collect annual regulatory fees from all digital full-service television stations, including any that may have been operating pursuant to Special Temporary Authority (rather than a license) on October 1, 2009.  With respect to low power and Class A television stations, the FCC has proposed that if a station is operating both an analog and a paired digital signal, then only a single regulatory fee will be assessed for the analog facility and no fee would be required for the digital companion channel.

Not surprisingly, the Commission has proposed to make the use of its electronic Fee Filer database  for the submission of the annual regulatory feesmandatory again, as it was in 2009.  It has also proposed that 2010 will be the last year that it will send out reminder letters to broadcast stations about the fees. Starting in 2011, the FCC is proposing to discontinue sending out media notification letters. As the payment deadline will be sometime in September, watch for an Order this Summer adopting the proposed fees, after folks have had a chance to comment. 

Continue Reading FCC Proposes 2010 Annual Regulatory Fees

The FCC’s January 2010 Order authorizing FM radio stations to increase power on their hybrid digital radio operations was published in the Federal Register on Thursday establishing the effective date of the new rules as May 10th.  As we wrote earlier, the Commission’s Order allows stations to increase from the current maximum permissible level of one percent of authorized analog effective radiated power (ERP) to a maximum of ten percent of authorized analog ERP.  So as of May 10, 2010, eligible FM stations may commence operations with FM digital operating power up to -14 dBc (that is, up to a 6 dB increase), consistent with the existing IBOC notification procedures and with no further authorization from the FCC.  Eligible stations may simply avail themselves of the voluntary power increase, but must notify the FCC electronically of the increased digital power within 10 days of commencement using the Digital Notification form via the Commission’s Consolidated Database System (CDBS).

The exception to the ability to increase power is super-powered FM stations, which, regardless of their class, are limited to the higher of either the currently permitted -20 dBc level or 10 dB below the maximum analog power that would be authorized for the particular class of station, as adjusted for the station’s antenna height above average terrain. The Audio Division’s web site contains an FM Super-Powered Maximum Digital ERP Calculator available here to assist super-powered stations with determining the maximum permissible Digital ERP. Licensees of super-powered FM stations must file an application, in the form of an informal request, for any increase in the station’s FM Digital ERP.  For power increases over 6 dB, licensees will be required to submit an application to the FCC, in the form of an informal request, for any increase in FM Digital ERP beyond 6 dB.  Licensees wishing to operate with an FM Digital ERP in excess of -14 dBc must make a calculation and determine the station’s max permissible Digital ERP as detailed in paragraphs 17 through 20 in the Order, available here. 

The FCC Form 323 Biennial Ownership Report — temporarily off-lined in December for revisions — has been reworked and is now back.  The FCC has announced that the revised Form 323 is now available in its CDBS electronic filing system, and that all commercial broadcast stations must file their biennial ownership reports by July 8, 2010.  As we wrote earlier, many broadcasters were concerned about privacy issues related to the new Form 323, as well as more practical issues regarding the time required to enter information.  After receiving many protests about the burden imposed by the new form and the short time that commercial licensees were given to prepare the report for submission, in December the Commission temporarily suspended the filing of the form. 

The Commission has now completed its technical improvements to the form, including the ability to upload a spreadsheet to provide certain data, rather than entering it manually, and the filing is back on, this time with 90 days for stations to prepare their reports.  Notably, the requirement that all disclosable interest holders obtain and provide an FCC Registration Number ("FRN") remains in place.  So that is one issue that the FCC did not address, and which remains unchanged from before.  One other important note, although the filing deadline is now July 8, 2010, licensees will be reporting ownership information as of November 1, 2009.  So many stations will be in the strange position of reporting what is now outdated ownership information. 

Additional information about the revised form is available on the FCC’s Form 323 web site, which contains links to prior orders and notices and includes “Frequently Asked Questions” (FAQ) about the form and its electronic filing capabilities.  With all commercial broadcast stations working to prepare and file the Ownership Reports by July 8th, stations would do well to start the process sooner rather than later.  A copy of the Commission’s  brief Public Notice is available here, and the revised form is available through CDBS.

In two decisions released in the last two weeks, the FCC fined two radio stations $4000 each for perceived violations of its contest rules.  The first decision was based on a perceived ambiguity in the contest rules that did not make clear in broadcasts and in written rules that there would be only one winner in a contest.  In the second, the FCC faulted the licensee for not giving the prize away within 30 days of the contest end.  Both cases demonstrate the seriousness with which the FCC seems to take contest rules, especially the need for disclosure of all material terms to listeners, both in over-the-air announcements (see our post here on the need to broadcast the material terms of a contest) and in the written rules governing the contest.  Seemingly, ambiguities will be construed against the licensee and any material parts of the contest, including when the prize will be delivered must be clear the contestants.

In the first case, The Commission found that the licensee had not made clear in its on-air announcements and in its written rules that there would be only one prize awarded in the contest.  When one closely reads the case, what seems to come through most clearly is that the Commission is expecting licensees to document carefully that they have clearly provided the material rules of the contest on the air, sufficiently so that a reasonable listener would be aware of those rules.  In this case, the licensee was unable to document how often its announcements providing the rules were broadcast, or to conclusively say if they had ever been broadcast at all.  The contest was to give away a garage full of prizes, so it would seem that the nature of the contest itself made clear that there was going to be only one winner.  But the Commission concluded that there were not enough unambiguous statements that there would be but a single winner – thus prompting the fine.

Continue Reading Ambiguous Contest Promotional Announcements and Slow Award of Prize Each Cost Radio Stations $4000 FCC Fine