On Friday, Feb. 19, 2010, two important new closed captioning rules were published in the Federal Register and went into effect. The new rules require immediate attention by video programming distributors — including broadcast television stations — to ensure that they respond promptly to viewer complaints regarding closed captioning issues, and to ensure that they timely file contact information with the FCC by March 22, 2010. 

As detailed in Davis Wright Tremaine’s November 2008 advisory and subsequent January 2009 advisory update, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Order in late 2008 that, among other things, imposed new requirements on video programming distributors with respect to fielding inquiries and complaints about closed captioning.  While the implementation of some aspects of those rules was delayed initially, with Friday’s publication in the Federal Register, two of those are now in effect.  The new rules, and the obligations they impose on video programming distributors, are discussed below. 

Continue Reading Closed Captioning Update: New Complaint Rules Now Effective; Contact Information Due by March 22, 2010

The FCC announced an extension of the comment filing deadline in its proceeding looking at the Future of the Media (see our summary here). At the same time, the Steven Waldman, the Special Assistant to Chairman Genachowski, made a public appearance at the FCC’s open meeting last week to explain what is intended by this study – and from his comments and those of the Commissioners, this will be a wide-ranging investigation looking at how FCC and other government regulations can insure diversity in the media so that citizens and communities can "get the information that they need."  In Commissioner Copps comments, this includes looking at what public interest obligations are appropriate for the new digital media.  Comments in this proceeding, which were to be filed in March, are now to be submitted by May 7, 2010.

The appearance of Mr. Waldman (whose appointment we wrote about here) came at the very end of a long Commission open meeting where extensive discussions were held on reforming the FCC’s internal decision-making processes and about the broadband deployment report which has consumed the FCC for many months, and which will be delivered to Congress in the next few weeks.  But, while short, the discussion with Mr. Waldman was interesting as he highlighted the plans for his task force.  He opened his comments by initially noting how this was a time of great change in the media, where there is "incredible diversity" brought forth by the new technologies, but that there was also a "collapse" of traditional business models, which could bring about the end of "accountability journalism" (presumably journalism from reputable journalistic sources with some degree of accountability and reliability).  Because of these perceived changes, according to the comments made at the meeting, this task force was established to determine what the government can do to make sure that communities get the information that they need.

Continue Reading FCC Extends Time For Comments on the Future of the Media – Looking at the Public’s Interest in Quality Journalism in All Media

On February, 18, 2010, David Oxenford conducted a seminar for the Utah Broadcasters Association on legal issues that affect radio and television broadcasters.  First, David summarized the various broadcasting legal and policy issues pending before the FCC and Congress.  David’s PowerPoint presentation is available here.  Broadcasters interested in Washington issues that may affect them this year may also want to read our blog post from early January where we presented our legal predictions for 2010.

David then conducted a refresher course on political broadcasting issues that may arise in this election year.  His PowerPoint on political issues for broadcasters can be viewed here.  Broadcasters wanting more information on the FCC’s political broadcasting rules and policies should review the Davis Wright Tremaine Political Broadcasting Guide.  A discussion of the issues for broadcasters raised by the recent Citizen’s United case is available here.

Finally, David discussed recent developments in enforcement of the FCC’s EEO policies.  The PowerPoint used in this session can be seen here .  Our Advisory on EEO rules and policies is available here, with forms and recordkeeping suggestions attached to that memo.  Our most recent EEO Public Inspection File Report advisory, with a model report attached, is available here.  Finally, our description of one of the recent FCC fines for noncompliance with the EEO policies is available here. 

The New York Times just ran an article on the number of radio and television commentators who are also potential political candidates, speculating on whether the appearance of these candidates on TV and cable talk shows, and on radio programs, give them an advantage in their future political careers.  That perceived TV bump might be most in the news in the potential candidacy of Harold Ford in the Democratic Senate primary in New York, with his appearances on MSNBC (and this past weekend on Meet the Press on NBC, where he was part of a panel to talk about the week’s news, and was then asked about his future political plans).  But it is also evident in the almost daily parade of potential candidates on radio, TV and cable talk programs.  So, one might ask, what are the FCC implications of these appearances?

The week before last, we wrote on this question, in connection with on-air radio or TV performers who actually become candidates, and how a broadcast station should deal with those candidates and the equal opportunities obligations to opposing candidates that arise when these employee-candidates appear on the air.  But the question of when the equal opportunities obligations arise is one that we only touched on.  Under the FCC’s interpretation of the Section 315 of the Communications Act, the equal opportunities obligations arise once you have a legally qualified candidate – one who fulfills all of the obligations that a state imposes for securing a place on the ballot.  Usually, this involves the filing of certain papers, often with petitions signed by a specified number of registered voters, with a state’s Secretary of State by a given deadline.  Once the requirements established by the state have been met, the candidate is legally qualified and equal opportunities attach to any on air appearances outside the context of an exempt program (see our post here about those appearances, principally in news and interview programs, which are exempt from equal opportunities). 

Continue Reading When Potential Candidates Like Sarah Palin, Mike Huckabee, and Harold Ford Are On Radio, TV and Cable – FCC Issues?

According to British press reports, Warner Music’s CEO Edger Bronfman Jr. stated that it will cease making its music available to advertising supported streaming music sites.  This has prompted some questions about how this decision would affect services such as Pandora, Slacker, Accuradio and other Internet radio companies – would it deny them access to substantial amounts of music?  In fact, as these US services operate under a "statutory license", created by Congress, they get access to  all legally recorded music in exchange for the payment of a royalty established by the Copyright Royalty Board.  Essentially, under this statutory license (otherwise known as a "compulsory license"), a copyright holder cannot deny access to companies operating under the license, as long as those companies comply with terms of the license, and pay the established royalty.  Thus, even if the Warner Music decision really is true, this decision should have little or no impact on US Internet Radio stations operating under the compulsory license.

What would it affect?  Presumably it could hurt services that don’t rely on the statutory license.  Internet Radio operators who want to rely on the statutory license must meet a set of requirements set out by statute in order to qualify for the license.  We’ve written about those obligations before here, in connection with the waiver of some of these requirements in the royalty settlement between SoundExchange and the NAB.  Services operating under the license must meet the "statutory complement", meaning that they cannot play more songs from an artist or CD in a given time period than allowed by the law, specifically:

  • No more than 3 songs in a row by the same artist
  • Not more than 4 songs by same artist in a 3 hour period
  • No more than 2 songs from same CD in a row

In addition, Section 114 of the Copyright Act sets out other limitations on a service operating under the statutory license.  The service must provide the name of the artist, song and CD in text on its site, to the extent technically possible, while the song is playing.  There are also certain restrictions about tying the music being played to commercial content on the site, and requiring that sites take steps to prevent digital piracy.  And, most importantly, the service cannot be "interactive."

Continue Reading Warner Music Says No More Music for Streaming – What’s It Mean for US Webcasters?

Two FCC cases were released last week fining broadcasters for violations of the FCC rule against broadcasting a telephone call (or recording a call for broadcast purposes) without first obtaining the permission of the person at the other end of the call.  In one case, a licensee was fined $16,000 for phoning a woman, pretending to be a hospital calling with news that her husband had been in a motorcycle accident and had died.  The FCC refused to reduce or eliminate the fine because the call was made by an independent contractor, as the Commission found that the contractor had been hired to provide recorded "bits" for the station, and was thus not acting outside of any limits set by the licensee.  The decision also made clear that the violation occurs as soon as the person at the other end says "hello", if a recorder is running, even if the person being recorded subsequently consents to the broadcast of the call.

The size of the fine may seem surprising, but the Commission’s staff found $16,000 to be appropriate due to the fact that the same licensee had just recently been fined for a similar offense.  In another case released the same day, the fine was "only" $4000.  Here, the call was made to airport officials in the context of asking these officials questions about a local controversy.  The licensee raised a host of defenses – all of which were rejected.  First, the FCC would not eliminate the fine based on the fact that the station employee making the call had immediately identified himself as being from the station.  The licensee argued that, as the caller had identified himself as being from the station, the recipients of the calls should have known that they were on the air, and had thus implicitly consented to being broadcast as they kept talking.  The FCC rejected this argument for two reasons.  As the call was immediately put on the air, the decision found that once the "hello" was broadcast without prior permission, the station had violated the rules.  Moreover, the exception in Section 73.1206 (the rule that bans the broadcast of phone calls without permission) that allows calls to be broadcast where the person on the call can reasonably be expected to know that the call will be broadcast applies only to situations where the caller "originates the call" to the station – calling the station to be put on a program (like a talk show) that they know or should anticipate will be broadcast. 

Continue Reading $16,000 Fine For Recording Telephone Conversation for Broadcast Without Prior Permission – No Excuse Because Call Made By Independent Contractor, By Subsequent Approval, or By the First Amendment

As we enter the 2010 election season, questions are beginning to arise about broadcast station on-air employees who decide to run for political office, and what a station needs to do about such employees to avoid issues under the FCC political broadcasting rules.  For instance, in Arizona, talk show host (and former Congressman) JD Hayworth recently left his radio program and announced that he was planning to contest John McCain’s reelection by challenging him in the Republican primary.  On a local level throughout the country, on-air station employees are deciding to throw their hats into the political ring.  And, whether that ring is a Federal office like the one that Mr. Hayworth is seeking, or a state or local elective position, whether it be Governor or member of the Board of Education or Water Commission, an announcer-candidate can mean equal time obligations under Section 315 of the Communications Act and under FCC rules for a broadcast station. 

We wrote about this issue last election cycle,here, and the rules have not changed. Once a candidate becomes "legally qualified" (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates.  What this means is that, if the on-air broadcaster who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air announcer/candidate was on the air, and the opponent would be entitled to the same amount of time in which they can broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air.  So if your meteorologist decides to run for the city council, and he appears on the 6 o’clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message.  So what is a station to do when an on-air employee decides to run for office?

Continue Reading Leaving the Air to Run For Office – What to Do With The Broadcaster Who Becomes a Candidate

The FCC has proposed amending its rules governing the Emergency Alert System (EAS) in order to test and improve the effectiveness of the system.  In particular, the Commission has proposed that all EAS participants be required to join in a nationwide test — to be scheduled by the FCC in consultation with the Federal Emergency Management Agency (FEMA) — to ensure that the system will function properly to inform the public in the event of a national crisis.  The FCC proposes to implement the national test on a yearly basis and seeks comment on the specific language of the proposed rule.  A copy of the Commission’s Notice of Proposed Rule Making (NPRM) was recently published in the Federal Register establishing the deadline for Comments on the proposed rules as March 1, 2010, with Reply Comments due on or before March 30, 2010.

In issuing its NPRM, available here, the Commission acknowledged the shortcomings of the current rules and its belief that a national test — and the data gathered from such a test — is critical to ensuring consistency and reliability in a system that has actually never been used to deliver a national Presidential alert.  Under the current system, an EAS message is initiated, which is then passed via specially encoded messages to a broadcast-based transmission network, and then on to broadcast stations, cable operators, and other EAS participants in a daisy-chain distribution to the final end users, i.e., the public who is listening, watching, or reading, on radio, television, cable, or other services.  This daisy-chain structure leaves the system, in the Commission’s estimation, vulnerable to a significant failure if the message distribution is severed or delayed at any one point.  By proposing an annual national test, the Commission seeks to test the system in an organized, controlled manner, gather data from the EAS participants, and apply what is learned.  Under the Commission’s proposed rule, the annual test would replace one of the required monthly tests and participants would have at least two months advance notice of the nationwide test.  EAS participants would be required to log the test results of the test and provide information on the results to the Commission’s Public Safety and Homeland Security Bureau within 30 days of the test.  The Commission seeks input on the proposed rule, including whether once a year is sufficient, and what the costs would be attendant to the testing and reporting.

Continue Reading FCC Proposes National Test of EAS – Emergency Alert System; Comments on Proposed Rules due March 1

In two just released cases, the FCC fined television stations $8000 each for failing to publicize the location of their Children’s Television Programming Reports for an entire license renewal period (the cases can be found here and here).  The FCC found that any remedial steps taken by the licensees after they discovered their failures at renewal time did not excuse the failure to comply during the license term.  The Commission, in the orders, cites a survey that found "virtually all of the stations in the sample complied with the requirement to publicize the existence and location of the stations’ Children’s Television Programming Reports", thus dismissing arguments that the rules were vague and unclear as they do not spell out how much publicity must be given to the location of these reports.  Based on these decisions, it’s obvious that not all stations in fact got the message.

These cases remind all television broadcasters that they do in fact have obligations to publicize the location of their children’s television reports and the contact person at their stations for information and comments about programming directed to children.  For more information on a television station’s Children’s Television obligations (or, as many broadcasters know them, the Kid-vid rules) under the Communications Act and the FCC rules, including the periodic notice that should be given by television stations, check out the Davis Wright Tremaine Quarterly Reminder, the most recent of which can be found here. 

In a decision just released, the FCC fined a noncommercial FM station $8000 for failing to make its public inspection file available when it was requested.  The FCC made clear that past cases where a noncommercial station was given only an admonition for similar violations were no longer good law, finding that the public file was an important part of the station’s obligations to the public and the failure to make it available was a serious violation.  This case should serve as a warning to all stations, commercial and noncommercial, that they need to have people at the station at all times who know where the public file is located, and that all visitors who request access to the file need to be given such access.

This case was perhaps a bit more egregious than most, as the visitor who requested access to the fine was known to the station, as the person was employed by a college that had tried unsuccessfully to buy the station.  After its request to purchase the station was turned down, the prospective buyer had allegedly filed a number of pleadings at the FCC trying to force the licensee to sell the station.  When the person appeared at the station to request access to the public file, the person was first told to return another day.  After protesting that was illegal, an official of the College which is the station licensee, arrived at the scene and told the visitor that he had to leave, and could only view the public file after having made a prior appointment with the college’s attorney.  When reached by phone, the attorney allegedly told the visitor to leave the premises or he would be arrested.  Only when he returned another day, after being initially turned down yet again, was the visitor eventually able to persuade the station employees that refusal to give him access to the file was illegal.  When he was finally able to gain access to the file, he stated that he found it to be incomplete.

Continue Reading $8000 FCC Fine for Noncommercial Station Not Making Public Inspection File Available Upon Request