This afternoon the Commission released an Order authorizing FM radio stations to increase power on their hybrid digital radio operations. This power increase is a welcome boost to HD radio operations and was eagerly awaited by many FM stations broadcasting in digital.  In a nutshell, the rule change 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.  In raising the power permitted for digital radio operations, the Commission acknowledged that the current digital power levels are insufficient to replicate stations’ analog coverage and that indoor and portable coverage are particularly diminished.  Building on proposals advocated by National Public Radio (NPR) and iBiquity, the Commission has provided for an immediate voluntary 6 dB increase in Digital ERP (except for super-powered FM stations, as discussed below).   In addition, stations will be allowed to seek authority for increases over 6 dB up to a maximum of 10 dB using an informal application process.

Once the Order becomes effective, 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.  Stations availing themselves of the voluntary power increase 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 this 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.  

Continue Reading FCC Gives Digital FM Radio a Power Boost

Reading the trade press and the blogs, one would think that the Tim Tebow ad that will reportedly air during the Super Bowl presented novel, controversial legal issues.  In fact, while we haven’t seen the ad, from what we’ve read, there do not seem to be significant legal issues – most particularly ones that arise from an FCC perspective.  The word is that this ad is pro-life, telling his mother’s story of why she decided to have her child after a medical recommendation that she not, and how that child grew up to be a famous quarterback.  Where are the FCC legal issues?  Even were this ad to explicitly address a "controversial issue of public importance", like the abortion debate, and even were stations running the ad not willing to take ads from pro-choice groups (and there is no indication that this sort of rejection of opposing viewpoints has occurred), as the debates earlier this year on the airwaves and over cable channels made clear, there is no longer any Fairness Doctrine enforced by the FCC.  Thus, there is no FCC requirement for stations having to give equal time to competing sides of any particular issue (even when the Fairness Doctrine existed, there was never an obligation for strict equal time – a broadcast station just needed to, in some manner, present both sides of an  issue).

At most, were the ad to advocate some specific Federal action, there might trigger an FCC obligation for stations that carry the ad to place a note in their public file about the ad and the amount paid to run it (see our post here), but otherwise the issue seems to be a tempest in a teapot.  Since the abolition of the Fairness Doctrine, broadcasters have been assumed to be able to exercise their own editorial discretion to decide what serves their audience and what doesn’t.  In the vast majority of cases, no one bats an eye.  But combine celebrity, the Super Bowl and a reference to a political hot-button issue, and you have a media controversy – even though there is no legal one.  So, unless the ad has some content that no one seems to be contemplating, the folks at the FCC should be able to relax and simply watch the game (assuming no clothing malfunctions or similar unexpected events – which we will leave to another post on another day…)

With the Super Bowl and the Winter Olympics less than 2 weeks away, and March Madness not far behind, we once again need to remind our readers that all three are trademarked terms, meaning that their use, particularly for commercial purposes, is limited.  We’ve wrote here last year about the use of the term "Super Bowl" in commercials, and about the use of "Olympics" two years ago (here).  Our warning then bears repeating now – the trademarked terms should not be used in commercial messages except by authorized advertisers.  These advertisers have paid big bucks to be able to say that they are an Olympic sponsor, or that they are having a Super Bowl sale.  The holders of these trademarks enforce them rigorously (so that they can get the big bucks from the official advertisers), so don’t risk their use without official permission.  See our Super Bowl post from last year for details on how to refer to these events without running afoul of trademark limitations.

As we wrote last year, this does not prevent all use of these terms.  News reports about the events can still be given.  DJs can still chat about who is going to win the Super Bowl, or about the latest judging controversy in Ice Dancing at the Winter Olympics.  But don’t try to commercially exploit these terms (e.g. saying that you are "Springfield’s March Madness station") unless you have really paid for the rights to use the trademarked term.  Be careful, as a cute promotional idea can end up costing your station far more than you intended. 

Continue Reading Remember “Super Bowl”, the “Olympics” and “March Madness” Are Trademarked Terms – Don’t Use Them In Advertising Without Permission

The Supreme Court Decision in Citizens United v. Federal Election Commission, freeing corporations to use their corporate funds to take explicit positions on political campaigns, has been mostly analyzed by broadcast trade publications as a good thing – creating one more class of potential buyers for broadcaster’s advertising time during the political season – which seems to almost be nonstop in these days of intense partisan battles in Washington and in the statehouses throughout the country.  What has not been addressed are the potential legal issues that this "third party" money may pose for broadcasters during the course of political campaigns.  Not only will an influx of money from non-candidate groups require that broadcasters review the contents of  more commercials to determine if the claims that they make are true, but it may also give rise to the return of the Zapple doctrine, one of the few remnants of the Fairness Doctrine never specifically repudiated by the FCC, but one which has not been actually applied in over a quarter of a century.  Public file obligations triggered by these ads also can not be overlooked. 

First, the need for broadcasters to vet the truth of allegations made in political ads sponsored by non-candidate advertisers.  As we have written before(see our post here), the political broadcasting rules enforced by the FCC allow broadcasters to run ads sponsored by the candidates themselves without fear of any liability for the claims made in those ads.  In fact, the Communications Act forbids a station from censoring a candidate ad.  Because the station cannot censor the candidate ad (except in the exceptionally rare situation where the airing of the ad might violate a Federal felony statute), the broadcaster has no liability for the contents of the ad.  So candidates can say whatever they want about each other – they can even lie through their teeth – and the broadcaster need not fear any liability for defamation based on the contents of those ads.  This is not so for ads run by third parties – like PACs, Right to Life groups, labor unions, unincorporated associations like MoveOn.org and, after the Citizens United case, corporations. 

Continue Reading What is the Impact on Broadcasters of Supreme Court Decision that Corporations Can Buy Political Ads? More Money, More Ad Challenges and the Return of the Zapple Doctrine

The FCC today launched a proceeding on the Future of Media in the digital age and put out a call for comments on a variety of issues.  The goal of the Future of Media project, in the Commission’s own words, is to produce a report to provide "a clear, precise assessment of the current media landscape, analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties."  The effort is being spearheaded by Steven Waldman, a former journalist and Internet entrepreneur, who is serving as a senior advisor to FCC Chairman Genachowski, as we wrote earlier.  According to the Public Notice issued today, the FCC’s initiative seeks to respond to the rapid technological changes in the media marketplace,  financial turmoil in the traditional media, and questions about the role that traditional media will play in the future.  While the FCC intends to draw from its ongoing proceedings regarding media ownership, universal broadband, children’s issues, etc., to gather info for its report, it also intends to draw on studies, comments, workshops and hearings, interviews, and outside research.  

To that end, the Public Notice seeks comment on a wide variety of issues in order to build a record for its final report, which will be issued later this year.  The current state and future of traditional journalism is one of the issues the FCC has raised, but is not the sole focus of the project.  Among the topics the FCC has identified for discussion and comment are:  the state of TV, radio, newspaper, and Internet news and information services; the effectiveness and nature of public interest obligations in a digital era; the role of public media and private sector foundations; and many others.  Not unlike the Broadband project that has consummed the Commission in recent months, by this Future of Media project, the FCC is seeking to tackle many big picture items.  In doing so, it is starting at the very beginning by asking questions as broad as:  "What are the information needs of citizens and communities and are those needs being met?"  In all, today’s Public Notice contains 42 detailed questions covering six pages, which inquire about business models and financial trends; the information needs of communities and citizens; commercial media (broadcast TV, Radio, Cable, and Satellite); noncommercial and public media; Internet and mobile platforms and applications; and print media. 

Given the enormous scope of the project, its nascent stage, and the continually evolving nature of the media and technology landscape it is impossible to know what recommendations the Commission might ultimately make.  But any parties interested in informing the Commission’s conclusions and future recommendations should consider participating in the proceeding.  The deadline for comments is March 8th, and interested parties can submit comments electronically through ECFS, or via the new Web site established for the project, which the FCC hopes will serve as an arena for public discussion on the future of media and any public policy recommendations.  The Future of Media web site also contains a blog to provide additional information about the project on an ongoing basis. 

In a recent decision, the FCC’s Enforcement Bureau ruled that a tower owner should pay a fine for a single day where the required tower lights were not operational, and where no required monitoring of the tower to discover such outage was taking place.  On top of the penalty for the non-working lights, the FCC also fined the owner for the failure to report a change in ownership of the tower.  The total fine in the case was $4000 (reduced from an initial fine of $13,000 because of the tower owner’s past record of compliance).

As with any FCC fine, while the fine was for one day of tower light outage, there was more to the story.  The FCC inspected the tower after receiving a complaint stating that the lights were out on a day that was almost a month before the inspection – indicating that the outage may have been in place for far longer than the one day revealed by the FCC inspection.  The tower owner admitted that the person who was supposed to conduct the required daily inspection of the tower lights had moved from the area in which the tower was located, and the owner did not know exactly when that occurred.  The owner did not get someone new to do the inspection until after the FCC inspection.  And the tower had no automatic monitoring system to determine if the lights were in fact operational.  With these admissions, it seemed clear that there was the potential that there had been a problem for a long time, so perhaps the fine was not unexpected, even though the lights were fixed within hours of the FCC report of the problem, as the issue was a simple one that the tower owner blamed on a careless repair person who had recently visited the site.

Continue Reading Tower Lights Out for Even One Day? – Pay A Fine, Says the FCC

At the end of 2009, we wrote about the interim royalties agreed to by both ASCAP and BMI, agreeing to reduce the amount of royalties paid by commercial radio stations by 7% until final royalties were agreed to by these Performing Rights Organizations and broadcast groups (principally the Radio Music Licensing Committee), either through negotiations or by litigation.  While many had assumed that these reduced rates would stay in place until the final royalties were set, we have now learned that, in fact, these are but "provisional rates" to be in place only until interim royalties are set by the Courts which supervise the royalty-setting process. Recently, the PROs and the RMLC filed motions with the courts that oversee the ASCAP and BMI antitrust decrees under which these organizations have operated for half a century, stating that they have not been able to agree to either final or interim royalties, and thus need the Court to set interim royalties until a final royalty is determined.

The interim royalty process does allow the presentation of evidence and argument by the parties to the Court as to what the appropriate royalty should be until the final royalty-setting process runs its course.  There is a legal presumption that, in the absence of some compelling evidence otherwise, the rates that were previously in place would continue while final royalties are litigated.  Whether the Courts will look back to the royalties paid by radio owners in 2009, or whether the provisional royalties that were set in these end-of-the-year agreements will have any effect on the interim royalties remains to be seen.  But don’t count on the interim 7% reductions being in place for long, as the Court should set the interim royalties relatively quickly, probably later this year.  And once these interim royalties are set, the more difficult issue will face the PROs and RMLC – reaching a deal or litigating over the final royalties that will be paid by radio broadcasters for the public performance of musical compositions.  Given the inability of the parties to reach any agreement on interim royalties after a year of discussions, it may well be quite some time before final royalties are set – at which time there will be a "true up" back to January 1 of this year.  So broadcasters need to watch these developments carefully, and to not count any discounts as final until the final royalties are established. 

A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.

Please note, this filing date applies only to noncommercial radio and TV stations in the states listed above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, and has revised the commercial Ownership Report – Form 323. Although commercial broadcast stations will file on a unified reporting deadline, by Order released late December 2009, the FCC has suspended indefinitely the filing of biennial Ownership Reports for commercial broadcast stations as we’ve posted previously. The Commission is taking additional time to address certain issues raised by petitioners and to revise the new form further.  Once the FCC re-releases the form, stations will have 90 days to file the report, so stations should watch this space or the FCC’s releases for future news about the return of the Ownership Report for commercial stations. 

Noncommercial stations, on the other hand, continue to follow the previous rules filing biennial Ownership Reports on FCC Form 323-E, which has not been revised. The FCC is conducting a rule making proceeding to change, potentially, some of the ownership reporting rules for noncommercial licensees, but meanwhile, noncommercial broadcast stations continue to follow the existing rules.  Accordingly, as Feb. 1, 2010, marks the two-year anniversary of the filing of a biennial Ownership Report for noncommercial stations in the above-referenced services and states, those stations must now file a biennial Ownership Report to update their ownership information or affirm the information currently on file.  More information about this filing deadline can be found in our recent client advisory, available here.  

February 1st marks the deadline for two FCC EEO requirements.  First, by February 1st, radio and television stations located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare their Annual EEO Public File Reports. Specifically, stations or Station Employment Units (SEUs) in those states with five or more full time employees (30 hours or more per week) must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file of each station comprising the SEU; and (3) post the Report on the Web site, if any station in the SEU has a Web site, all by Feb. 1. The Annual EEO Public File Report summarizes the hiring and EEO activities conducted by the station or SEU during the past 12 months. The Report provides information about the full time job positions filled in the last year, the recruitment sources used to fill those positions, and the outreach activities that the station or SEU performed during the year. In preparing their Annual Reports, stations are encouraged to carefully review their EEO activities and take the time to organize their records. Stations should have appropriate documentation to back up each of the recruitment sources used for each job opening, as well as for each outreach activity. This annual report is also a good time for the station or employment unit to assess the success of its outreach and the efficacy of its recruitment sources, and to make any adjustments necessary to improve EEO compliance in the coming year. A copy of our longer EEO primer can be found here.

Second, in addition to preparing the Annual EEO Public File Report, by February 1 television stations in Kansas, Nebraska, and Oklahoma , as well as larger radio stations in New Jersey and New York (i.e., those with eleven or more full-time employees) must prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  The Form 397 provides the FCC with copies of the SEU’s two most recent Annual EEO Public File Reports, and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures. While normally the Annual Report is simply prepared and placed in the station’s public file and on the website, at the mid-point of the license term stations must actually provide the FCC with copies of its two most recent Reports.  More information about both of these February 1 filing deadlines can be found in our recent client advisory available here.

You’ve arrived here as the result of a broken link. 

The full article regarding the proposed revisions to the Emergency Alert System (EAS) posted on February 2, 2010 can be found here.  

We apologize for the inconvenience, and thank you for reading.