To move or not to move? For broadcasters considering a change in a station’s community of license, this question now requires a bit more forethought. There may be unintended consequences for broadcasters that request a community of license change based on tenuous future plans.   In a recent letter decision, the Commission’s staff reminded an applicant that upon receiving a final Commission decision to change the commercial FM radio station’s community of license, it traded in its license for an ‘implied STA’ to continue operating its station with its existing licensed facilities. In other words, the existing facilities would no longer receive contour protection from other stations and technical proposals that they wanted to make through modifications or other applications. The FCC staff stated that the applicant who had received authority to change city of license was obligated to construct its stations at the new community. Furthermore, the Commission could cancel the implied STA, requiring the station to cease operations, if the existing facilities continue to impede construction of any approved third party modifications.   According to the Commission, a request to change a community of license carried with it an implied certification that the applicant is ‘ready, willing and able’ to construct and operate the facility. Because the applicant who changed city of license in this case did so through a modification of the FM Table of Allotments rather than through a one-step application (which was not available to make the change they requested at the time they first sought the city of license modification), this decision leaves us with many questions, but certainly warns applicants for city of license changes that they must consider their plans carefully.       

The facts in this case began in 2003 when, as part of a rulemaking proceeding, the FCC issued a Report and Order modifying the KIKT(FM) community of license from Greenville, Texas to Cooper, Texas and later that year granted a construction permit to implement the same. Immediately prior to expiration of the construction permit in 2006, its licensee re-filed for identical facilities, and did so again immediately prior to the 2009 expiration date. The Commission granted the licensee a total of three construction permits for the same facilities in Cooper, Texas. Meanwhile, another broadcaster filed an application to improve the facilities of its station KNOR(FM) – an upgrade that was mutually exclusive with the existing KIKT(FM) facilities at Greenville.  Therefore, the Commission’s approval of the KNOR(FM) upgrade contained a special operating condition requiring KIKT(FM) to initiate operations at Cooper, Texas before KNOR(FM) could implement its upgrade. After what amounted to three, three-year extensions, the KNOR licensee petitioned the Commission for the condition to be removed and KIKT(FM) be forced to make its move to Cooper, Texas. The Commission agreed, finding that, despite the fact that allowing KNOR(FM) to implement its upgrade would result in interference to KIKT(FM)’s existing facilities, the Commission decided that it was in the public interest to remove the special operating condition at issue. However, the Commission denied the request to cancel the implied STA, and instead threatened to cancel the implied STA if KIKT(FM) isn’t constructed at Cooper on or before the current construction permit deadline in 2012.

Continue Reading Beware of City of License Change Proposal That May Not Be Implemented

Last week, the FCC issued fines to Class A TV stations which seem to have forgotten the requirements for such stations. Class A TV stations were low power television stations on which, early in the decade, Congress decided to confer "protected" status, meaning that they could not be knocked off the air by a new full-power TV station or by a change in the facilities of a full-power station.  LPTV stations, by contrast, are "secondary services," meaning that they can be knocked off the air by changes in primary stations.  Class A stations were given this protection if they could show that they were providing local programming, had a local studio, and otherwise complied with all the operating requirements that a full-power station station has to meet – including a manned main studio, children’s television obligations, EEO reporting, and public file requirements.  Cases released last week remind these stations that they must still meet all requirements for full power stations, as the FCC fined Class A stations for main studio, public file and children’s television violations.

In one case, the FCC fined a station $1000 for violations of the main studio, main studio staffing and public file rules.  The fine was originally set at $24,000 but, as the licensee demonstrated that it had no ability to pay the higher fine, the penalty was reduced to $1000.  The FCC had tried to inspect the station, and was unable to obtain access to the transmitter site.  The Commission staff then tried to find the station’s main studio, and found that no one answered the phone number listed for the station, there did not appear to be anyone at the address on file for the main studio location, and there was of course no access to the public file.  As Commission rules require that stations have main studios in their principal service areas that are manned during normal business hours, and that stations have their public file at this location, the fine was issued.

Continue Reading Class A TV Stations Need to Remember They Are Subject to Full-Power Rules – Fines for Kids TV and Main Studio Violations

In recent years, as competition in the video marketplace has become more intense, in a number of broadcast television markets, competing stations have teamed up to combine certain of their operations to achieve economies while still allowing for some degree of independence of programming.  Under these "shared services agreements", one station will provide back-office support and often advertising sales for another station in the market.  Where the station providing the support programs less than 15% of the programming hours of the station being supported, the contractual arrangement is not "attributable under the FCC’s multiple ownership rules.  Thus, these services can be provided in circumstances where the supported station could not be owned by the station that is providing the services.  Nevertheless, a number of these arrangements have been under attack from public interest groups, and recent Commission actions indicate that the FCC may well be reviewing its position on these sorts of agreements.

A few weeks ago, in approving an application which provided for a shared service agreement between two television stations in the same market (over the objection of a competitor), the FCC noted that it was approving the deal as consistent with its rules as they are currently enforced, but warned that the arrangements would be reviewed as part of the FCC’s review of its multiple ownership rules – a review which is to take place this year.  This week, the FCC agreed to treat a case in Hawaii, which has generated much controversy and press coverage, as a "permit but disclose" proceeding, meaning that parties are not confined to the usual process of arguing their cases through written submissions served on all parties (or meetings at which all parties are present).  Instead, interested parties can now meet with FCC decision-making staff (including FCC commissioners) on their own, as long as they file an "ex parte" notice in the record summarizing the presentations that they made.  This process is usually used only for high-profile decisions with potential far-reaching impact or where new policy is potentially to be made. 

Continue Reading More Indications of FCC Review of TV Shared Services Agreements

A petition was recently filed at the FCC proposing to allow all AM stations to increase to 10 times their current power in order to overcome the effects of interference that has grown up in most urban areas from the operation of all sorts of electronic equipment, fluorescent lights and other devices that simply did not exist when AM power levels were first established.  The petition was drafted by an engineer, who argues that, as the amount of background noise from all sorts of electronic devices has increased, so has the noise on the AM band.   He believes that the only way to make the AM signal usable is to vastly increase power on all stations.  As the stations would maintain their relative power levels towards each other, he claims that there would not be increased interference between AM stations – but that the increased power levels would overcome the background noise.  However, because of AM skywave issues, the petition suggests that nighttime power levels remain at their current levels.

How realistic is this proposal?  The petition recognizes that, in border areas, the power increase could not happen without international coordination and the amendment of existing treaties.  But, given the proposed high power for AM stations and the cumulative effect that their signals can have on distant stations, this increase could seemingly affect international AM stations even if the US stations increasing power are far from the border.  However, the use of AM stations has been decreasing in some countries – in Canada, a number of AM stations have already ceased operating, so maybe the international implications could be overcome given enough time.

Continue Reading An Across-the-Board AM Power Increase to Overcome Electronic Interference?

In a recent decision, the FCC made clear that analog FM translators can rebroadcast the signal of a HD digital multicast channel from a commonly owned FM station.  For months, broadcasters have been introducing "new" FM stations to their communities via translators rebroadcasting HD-2 signals which are broadcast digitally on a primary FM station, and available only to those who have purchased HD radio receivers.  In the decision that was just released, the Commission’s staff rejected an objection to the use of an FM translator taking a signal that can only be heard on a digital HD Radio and turning it into an analog signal capable of being received on any FM receiver.  In this case, the broadcaster rebroadcast his AM station on the FM HD station so that it could then be rebroadcast on the FM translator.  But, even if the HD multicast channel was a totally independent station that could otherwise only be heard on an HD digital radio, it could be rebroadcast on the FM translator and received by anyone with an FM radio in the limited area served by the translator station. 

The Commission did make clear, however, that a broadcaster cannot use another station owner’s HD multicast channel and rebroadcast that on a translator if the broadcaster already owned the maximum number of stations allowed by the multiple ownership rules.  In other words, if a broadcaster is allowed by the multiple ownership rules to own 4 FM stations in a market, it could put a fifth (low power) FM signal in that market through the use of an FM translator rebroadcasting one of its own HD multicast signals.  However, if it had not itself converted its FM stations to digital so that it had its own multicast abilities, it could not do a time brokerage agreement and program the multicast signal of another broadcaster in town who had installed the digital equipment needed to do such multicasts.  An LMA or time brokerage agreement with another station for use of an HD multicast channel counts for multiple ownership purposes in the same way that such a programming agreement would if it provided for programming of a primary analog  FM station. 

Continue Reading FM Analog Translator Can Rebroadcast FM Digital Multicast Programming – Opportunities for New Signals in Local Markets

In reaction to the Citizens United Supreme Court decision invalidating restrictions on corporate spending on advertising and other messages explicitly endorsing or attacking political candidates (about which we wrote here), new legislation, called the DISCLOSE Act,  has just been introduced in both houses of Congress seeking to mitigate the perceived impact of the Court’s decision.  While the announced goal of the legislation is aimed at disclosure of the individuals and companies who are trying to impact the political process, the draft legislation, if adopted would have significant impact on broadcasters and cable companies, including potentially extending lowest unit rates and reasonable access to Federal political party’s campaign committees (and not just the candidates themselves).  The draft legislation also proposes lower Lowest Unit Rates in political races where there are significant independent expenditures, more disclosure by broadcasters through an on-line political file, and even mandates for audits by the FCC of the rates charged by television stations to political candidates.  The language could also be read as an expansion of the current applicability of the political rules to cable television – applying reasonable access to cable systems and lowest unit rates and equal opportunities to cable networks.  As Congressional leaders are proposing to move this legislation quickly (with votes before July 4) so that it can be in place for the coming Congressional elections, broadcasters and cable companies need to carefully consider the proposals so that they can be discussed with their Congressional representatives before the bills are voted on by Congress.

While much of the bill is intended to force disclosure of those sponsoring ads and otherwise trying to influence the political process, the portions of the bill that amend provisions of the Communications Act include the following:

  • An extension of Reasonable Access to require that broadcasters give reasonable access not just to Federal political candidates, but also to Federal political parties and their campaign committees.  In recent years where the Democratic and Republican Congressional Campaign Committees have been big buyers of broadcast time.  The extension of reasonable access to these groups could put even greater demands on broadcast advertising time on stations in markets with hot races, as stations could not refuse to provide access to "all classes of time and all dayparts", as required by the reasonable access rules.  This could crowd out other advertisers, and even make it harder for ads for state elections (as state and local candidates have no reasonable access rights) in states where there are hotly contested races.
  • Extends the Reasonable Access requirements to require reasonable access to "reasonable amounts of time purchased at lowest unit rates."  The purpose of this change is not clear, as all political time must be sold to candidates at lowest unit rates in the 60 days before a general election and the 45 days before a primary. 
  • Extends the requirement for Lowest Unit Rates to Federal political parties and their campaign committees.  Currently, the lowest unit charges apply only to the candidate’s campaign committees, not to political parties.  Under the proposed language, LUC rates would also apply to the parties, and to groups like the Republican and Democratic National Campaign Committees
  • Extends the "no censorship" provisions to Federal political parties and their campaign committees.  This change may be a positive for broadcasters.  As we have written before, a broadcast station cannot censor a candidate’s ad.  But, as they have no power to reject a candidate’s ad based on its contents, they have no liability should that ad contain material that could potentially be defamatory or otherwise subject the station to liability.  This proposed language would extend the no censorship rule to cover ads from Federal political parties, so that stations would not have liability for those ads either.  As many of the hardest hitting attack ads often come from these committees, if this legislation were to pass, stations would not have to worry about evaluating the truth or falsity of the committee’s ads, as they would have no liability for the contents of the ads as they would be forbidden by law from rejecting the ads based on their contents.
  • Provides for a lower Lowest Unit Rate in races where there are independent expenditures by any group of more than $50,000.  If a corporation or other group spends $50,000 in any political race, then all stations would be required to charge all candidates in the race the lowest charge made for "the same amount of time in the last 180 days" – not just the lowest charge for the same class of time as is then currently running on the station.  First, this would force stations to look back 6 months to determine their lowest unit rates.  For a primary election in June or July, rates in the doldrums of January or February could set the June political rates.  Moreover, the legislation does not state that it would look at the lowest rate for the same "class" of time over the previous 180 days, but instead it talks only about the same "amount" of time.  It is unclear if this is an intentional attempt to make stations sell prime time spots at overnight rates, but the current language of the bill seems to avoid the traditional distinctions on spots being sold based on their class.
  • Forbids the preemption of advertising by a legally qualified candidate or national committee except for unforeseen circumstances.  This provision may well be intended to force stations to sell candidates advertising at their lowest nonpreemptible rates, and then treat the spots as they would much more expensive non-preemptible fixed position spots
  • Requires the FCC to conduct random audits during the 45 days before a primary and the 60 days before a general election.  Audits would have to be conducted as follows: 
    • 6 of the Top 50 TV markets
    • 3 of the markets 51-100
    • 3 of the markets rates 101-150
    • 3 markets below 150
    • Audits would be required of the 3 largest networks, 1 independent TV network, 1 cable network, 1 provider of satellite services, and 1 radio network.  The language here, too, seems odd, as the requirements for audits are for "networks" of broadcast, cable and radio stations, not for local operators, and for an "independent television network" which would seem to be an inherently contradictory term – if a station is truly an independent, it is not affiliated with a network, so how can the FCC audit an "independent television network"?  It is unclear of whether this provision is requiring audits of the networks themselves, or of affiliates of the networks in the markets in which audits must be conducted. 
  • Requirements that stations keep on their website information about all requests for the purchase of broadcast time by candidates, political parties or other independent political groups. Right now, the rules specifically do not require that political files be kept online.

Continue Reading The Impact of the Proposed DISCLOSE Campaign Reform Act on Broadcasters and Cable Operators – Lowest Unit Rates and Reasonable Access for Political Parties, On Line Political File, FCC Audits and More

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.