The new FCC Form 323 Ownership Report is expected to be available in the FCC’s CDBS electronic filing database by Wednesday, December 9, according to a Public Notice released by the FCC yesterday – so that commercial broadcasters should have a month to prepare the form in time for the January 11 filing deadline.  As we’ve written before, the form and filing deadline have been much delayed as the Commission struggled to work out kinks in its electronic filing process.  In the Public Notice issued yesterday, the Commission also announced that stations can file their ownership reports on the new form even if each attributable owner of the company has not yet received an FCC Registration Number (an "FRN"), which requires the provision of a Social Security Number (for individuals) or a Taxpayer ID Number (for business entities).  Seemingly, the FCC has recognized that there has been much consternation among shareholders, officers and directors of broadcast companies about providing their Social Security Numbers to companies in which they have interests to in turn be provided to the FCC so that an FRN can be obtained.  So that licensees can have more time to deal with these issues, the provision for a temporary FRN has been adopted.  The FCC Public Notice also indicates that the FCC will host a workshop on December 9 at 2 PM Eastern time to help the public with issues as to the filing of this report.

The Social Security Number issue has perhaps created the most concern about this new form.  While the allowance for the temporary FRN will take some immediate pressure off broadcasters, these temporary numbers should not be viewed as a permanent reprieve from obtaining FRNs from all attributable owners.  The Commission in the revised Questions and Answers on the Form 323 makes clear, the temporary FRN for those holders of attributable interests in broadcast stations is a temporary measure.  Licensees are cautioned that they should use their best efforts to obtain these numbers (or to have the attributable owners, on their own, register for the FRN).  Even if that cannot be accomplished by the January 11 deadline, the licensee has an obligation to keep trying and to amend its filing when it finally obtains the required information as to the permanent FRN of each person or entity holding an attributable interest in the company .  The FCC seems to leave the door open to enforcement actions if a licensee does not obtain that information in a reasonable (though not defined) period of time.

Continue Reading New Form 323 Ownership Report Expected to be Ready This Week – And FCC Provides for Temporary FRN Without Social Security Number

The 2010 political broadcasting season is almost upon us, with Texas leading the way.  With the first 2010 primaries on March 2, candidates in Texas are already in windows during which they need to file the paperwork to qualify for a place on the primary ballot.  Once they qualify for that ballot spot, they become "legally qualified candidates" in the eyes of the FCC, triggering reasonable access (for Federal candidates) and equal opportunities requirements.  Soon after, broadcast stations in Texas need to start according lowest unit rates to candidates (Federal, state and local) in the primary – such rates to start on January 16.  To help broadcasters prepare for the primary and the rest of the election season, David Oxenford and Bobby Baker, the head of the FCC’s Office of Political Programming, conducted a webinar for the Texas Association of Broadcasters on December 2, 2009, originating from the TAB offices in Austin.  The PowerPoint slides used in the presentation is available here.  The Davis Wright Tremaine Political Broadcasting Guide that forms that basis of the TAB’s political guide can be found here.

Texas will have an unusually active political season, with a primary election for Governor, where the State’s sitting Governor’s re-election is being challenged in his own party by one of the state’s US Senators.  Races for the Texas State legislature will also likely be a hotbed of activity as the state will be electing the legislators who preside over Congressional redistricting after the 2010 census – a process that was particularly controversial in Texas after the last census.  Given the likely level of activity, broadcasters in Texas need to immediately start planning for the 2010 election and the obligations that it imposes on broadcasters.   And broadcasters in the rest of the country should similarly be preparing, as these same issues will be arising for them very soon, and advertising sold now could well have an impact on their political rates later in 2010 (see information about the webinar that David and Bobby conducted for 13 other state broadcast associations here). 

The FCC has wasted no time in pressing ahead with the discussion of whether the spectrum currently used by local broadcast television stations is being put to the greatest use and whether it should be "re-purposed" for the so-called broadband effort.  This afternoon, the FCC issued a Public Notice soliciting comments by December 21st regarding the demand for spectrum, the factors the FCC should review when considering the re-purposing of TV spectrum, and potential approaches to increasing spectrum availability and efficiency.  Although the Public Notice asks broad, far-ranging policy questions, the comment date for the "specific data" that the Commission seeks to obtain from interested parties is less than three weeks away, which hardly seems adequate for a proper, informed discussion on an issue of this magnitude.  The specific topics of discussion identified by the Commission and details about how to submit comments can be found in the Commission’s Notice. 

Among the issues broadcasters will undoubtedly address (and indeed have already begun to address in other forums) is the fact that the forthcoming spectrum crisis — which seems to have become a given in certain circles — has not been well substantiated.  Related to that is the notion that broadcasters already have the ability to lease any "excess" digital television spectrum and use the capacity to provide broadband access, mobile services, or virtually anything else under the sun.  Stations will likely suggest that this mechanism will allow the wireless broadband market to tap this spectrum without further government intervention, if and when the demands of the wireless market require it.  Other issues sure to be of discussion is the value of local broadcast stations, the usefulness of free over-the-air broadcasting, the future of broadcast journalism, and the service stations provide to the public, just to name a few.   It will be challenging, to say the least, for commenters to quantify and address any of these significant questions within just 19 days. 

Having just completed the DTV transition six months ago, it seems that broadcasters have barely been given a chance to operate on their digital spectrum and to explore the options afforded by the transition in terms of high-definition, multicasting, data casting, broadband access, and mobile TV, just to name a few, before having to rush to defend its use, or lack thereof.  The Commission’s rush to solicit comments is clearly guided by its need to develop a broadband plan early next year, however, the issues raised by today’s Public Notice are among the most significant it has ever attempted to address, certainly with respect to broadcasting and mass media.  It goes without saying, but there is much, much more to be said about these issues, so stay tuned.   And see our earlier blog entries (including here) for further thoughts on the matter. 

A year after the FCC issued its order adopting the "White Spaces" proposals (about which we wrote here and here), to allow wireless devices to operate in unused portions of the television band on a non-interference basis, the FCC took its first steps toward actual implementation of that order by issuing a request for Proposals from entities wishing to be considered for the position of Database Manager.  This Database Manager will play a very important role in the implementation of the White Spaces order, as it will identify all of the current operators in the TV band that the new wireless devices will have to protect while operating in a given region.  In its White Spaces order, the FCC concluded that not all of these devices could, on their own, adequately sense where there were TV stations or other spectrum users that needed to be protected.  Thus, the White Spaces devices need to be able to communicate with the database to be maintained by the Manager, to make sure that they are operating on clear portions of the television spectrum.  White Spaces devices need to protect not only full power TV stations, but also Low Power TV stations and TV translators, as well as the path between a full-power TV station and any translator that rebroadcasts that station.  Cable system headends which pick up TV signals must also be protected, as well as land mobile users who use portions of the TV band.  Certain regular users of wireless microphones also need to be protected – so the database will need to be very detailed to give the White Spaces devices access to information about all of these existing users who must be protected.

In its Request for Proposal, the FCC has asked that proposed Database Managers provide extensive information by the January 4, 2010 filing deadline.  Information requested includes the following:

1. The entity must demonstrate that it possesses sufficient technical expertise to administer a TV band database. It must demonstrate that it has a viable business plan to operate a database for the five-year term the rules. To the extent that the proponent will rely on fees from registrations or queries, the proposal should describe the fee collection process.

2. The entity must describe in detail the scope of the database functions that it intends to perform, such as managing a data repository, performing calculations to determine available channels, and/or registering fixed unlicensed devices and licensed services not listed in the Commission’s databases, or how it will have functions performed in a secure and reliable manner by another entity. The entity must also describe how data will be synchronized between multiple databases if multiple databases are authorized and how quickly this synchronization of data will be accomplished.

3. The entity must provide diagrams showing the architecture of the database system and a detailed description of how each function operates and how each function interacts with the other functions.

4. If the entity will not be performing all database functions, it must provide information on the entities operating other functions and the business relationship between itself and these other entities. In particular, it must address how the Commission can ensure that all of the requirements for TV band database administrators in the rules are satisfied when database functions are divided among multiple entities, including a description of how data will be transferred among these various related entities and other databases if multiple databases are authorized and the expected schedule of such data transfers (e.g. real-time, once an hour, etc.)

5.  The entity must describe the methods that will be used by TV band devices to communicate with the database and the procedures, if any, that it plans to use to verify that a device can properly communicate with the database. It must include a description of the security methods that will be used to ensure that unauthorized parties can not access or alter the database or otherwise corrupt the operation of the database system in performing its intended functions. In addition, the entity should describe whether and how security methods will be used to verify that Mode I personal/portable devices that rely on another device for their geographic location information have received equipment authorization, interfaces, protocols) that will be used by TV band devices to communicate with the database and the procedures, if any, that it plans to use to verify that a device can properly communicate with the database. It must include a description of the security methods that will be used to ensure that unauthorized parties can not access or alter the database or otherwise corrupt the operation of the database system in performing its intended functions. In addition, the entity should describe whether and how security methods will be used to verify that Mode I personal/portable devices that rely on another device for their geographic location information have received equipment authorization.

Continue Reading FCC Starts Next Step of TV White Spaces Deployment – Issues RFP for Database Manager to Track Interference Concerns

The FCC issued a Public Notice today, extending the date for the filing of the new Form 323 Biennial Ownership Report until January 11, 2010.  As stated in the Notice, the Commission has yet to finish testing the new form in its electronic filing system, so it is not yet ready to be used.  Given the delay (as we wrote on Friday, the Commission had hoped to release the form for use last week), the Commission’s Media Bureau decided to extend the filing date.  However, as we discussed in in more detail in our post last week, the substantive issues apparently have not changed.  Commercial broadcast station licensees will still need to have FRN numbers for all of their attributable owners – which can be obtained now as the FCC electronic registration process for the FRN is separate and apart from the Form 323 itself (this is the process that will involve submitting the social security number of all of your attributable owners).  So licensees should start that process now – as these forms will be complicated for many licensees to complete the first time around, and should not be something left to tackle in the first few days of the New Year right before the new due date.  

See last Friday’s post for more information, and links to our memo on the new Form and the FCC’s Frequently Asked Questions page. 

The FCC last week did an about face on a fine for a violation of the EAS rules, canceling a fine issued to a broadcaster who had violated the rules and instead issuing only an admonition.  This case resulted when a local primary EAS station, KWVE, one monitored by other stations and cable systems for test messages and alerts, ran the wrong EAS test – running a required monthly test in lieu of the weekly test that was supposed to run.  The problem was compounded when the on-duty operator somehow stopped the test in the middle.  By doing so, the End of Message ("EOM") code was never sent or received, so some stations that were passing through the alert simply continued to run audio from the primary station, including the religious programming that the station featured and a commercial message from that station.  One viewer of a cable system that picked up the test complained to the FCC, and the FCC issued a fine in the amount of $5000 – the fine which was vacated last week.

The initial fine had resulted in criticism from many diverse broadcast groups and associations – including many state broadcast associations and engineering groups.  This station was volunteering to act as the primary station for the area – taking on additional EAS responsibilities to initiate tests and otherwise be responsible for potentially originating and relaying important emergency information.  Here, as a result of an inadvertent error, the station made a one-time mistake.  The protesting groups argued that the Commission’s fine set a bad precedent, one which would discourage stations from volunteering for responsibilities under this and possibly under other programs which could benefit the public, if the result was that the stations were subjecting themselves to substantial liability for even the tiniest, inadvertent infractions.  And, of course, this error took place in the course of a test – and what’s the purpose of a test but to discover issues with training or execution that need to be corrected in the event of a real emergency.  If everyone was already perfect, you wouldn’t need to conduct tests.  The Commission decision this week, to back off the fine and just issue a warning  was seemingly a correct one – and should be applauded. 

Update 11/23/2009 – the Commission has just extended the filing deadline for the Form 323 until January 11, 2010.  See our post here for more details. 

December 15 is that date on which the new FCC Form 323 Ownership Report is to be filed at the FCC – yet the revised form is not yet available in the FCC’s CDBS electronic filing database.  What is a broadcaster to do?  The form will require significantly more work to complete than was necessary on prior versions – and it requires more information provided in a different manner than on the old form.  The information on the old form cannot simply be imported into the new form – everything needs to be re-entered.  And information that used to be provided by exhibit in older versions of the form has to be manually entered into separate searchable fields on the new form.  For broadcasters with many principals who have many broadcast interests, the form will take significant time to complete.  All commercial licensees, including LPTV licensees who have never before had to file, must submit the report.  Each attributable owner of each licensee (see our Advisory for a very basic explanation of attributable interests) will also need to have his or her own FCC registration number ("FRN") in order to complete the form – all to be done by December 15.  But will that date potentially change?

While the FCC has issued a series of Questions and Answers about the form (and we have published our own Advisory to prepare for the filing of the form, here), licensees can’t start filling out the form yet as the revised for is not yet available electronically.  So the difficulties that will no doubt be discovered as hundreds of broadcasters try to complete the form for the first time have yet to even be fully identified.  Even if the form does become available today, there still will be a significant potential for a very messy filing window.  Confusion will likely occur as every commercial broadcaster must file the form, some for the first time, and many will no doubt have questions about the process.  From the calls that we are getting already, the anxiety and confusion among broadcasters is great.  The prospects of a filing "trainwreck" has been the subject of much talk in Washington among lawyers like us who represent broadcasters.  With much of next week taken up with the Thanksgiving holiday, there simply will not be time for every question to be answered, and for every broadcaster to be ready to file by the December 15 deadline.  This week, one law firm went so far as to formally request that the Commission postpone the filing date.  We would not be surprised if this petition is successful, or if the Commission on its own motion decides to extend the deadline.  But the filing deadline has not yet been delayed, so broadcasters should still plan on meeting the current deadline (and, even if extended, any delay will not be indefinite, so broadcasters still need to be getting ready).  What can a broadcaster do now?

Continue Reading It’s November 20, and Still No New Form 323 Ownership Report – What’s a Broadcaster to Do?

At more and more broadcast conventions, station owners have been asking questions about their legal liability for the use of social media.  What is their liability for the use of Facebook, Twitter, MySpace or other services?  Could owners have liability if their station maintains its own page on which friends and followers may post statements which are defamatory or which could otherwise give rise to a lawsuit?  Can an employee’s actions on his or her own pages be attributed to the station?  Should stations restrict the use of social media by their employees on company time, or can that itself give rise to liability?  These are the same questions being asked by employers in other industries, and Davis Wright Tremaine is conducting two free on-line seminars on December 9 and December 15 to answer these questions.

While these seminars are not directed exclusively to broadcasters, they will address topics that broadcasters will find helpful in answering their questions on the use of social media.  Specific topics to be discussed include:

  • Social media mechanics: How does social media work and what are employees doing on these sites?
  • Employer liabilities: What new types of legal risks are created by employees using social media? How can employers protect themselves?
  • Expectations of privacy: Do employers who blog or use social media in the workplace still enjoy a right to privacy? What can employers lawfully do to monitor or control online activities?
  • Social media policies: What are the options and what should it contain? Is it necessary for your company to have a written policy?
  • Managing defamation: If you or your company is defamed online, what can you do? What should you do?

More information on these free on-line seminars is available here.  To register for these free seminars, go the the registration site here.

 

DWT attorneys David Oxenford and Ronnie London both spoke at the Future of Television – East Conference held in New York City on November 18-19, 2009. Dave delivered introductory remarks to the Conference, and participated with Shelly Palmer, Host of MediaBytes, in a discussion "What’s the Industry Buzz.". Dave discussed the role of Washington in the Future of Television, outlining the issues facing "television" in its broadest sense – including broadband deployment, net neutrality, the battle over the spectrum, privacy, piracy and content protection, and content regulation.  The slides from his presentation are available here.

Ronnie was a panelist on a panel called The Future of Online Video, participating in a discussion with several CEOs of online video companies.  Ronnie discussed issues including FTC disclosure obligations, sponsorship identification requirements, and privacy concerns for companies offering on-line video.

Radio broadcasters all over the country have been receiving letters about music royalties – from ASCAP, BMI and the Radio Music Licensing Committee (RMLC).  The ASCAP and BMI letters are asking for the broadcaster to sign a letter committing themselves to some royalty obligation for 2010.  They pose three options to the broadcaster – sign up to pay royalties for 2010, join the RMLC negotiating group, or notify ASCAP and BMI that they will be negotiating their own royalties.  The RMLC letter suggests that the broadcaster join in their negotiating group to help to establish a new royalty structure with these entities.  What does it all mean, and what should a broadcaster do? 

These letters are all triggered because the rates for royalties that commercial radio broadcasters pay to ASCAP and BMI for the musical compositions that they play on the air expire at the end of 2009. (Noncommercial broadcasters have a special rate set under the review of the Copyright Royalty Board, and thus are not subject to these deals)  RMLC represents most radio broadcasters in their dealings with the performing rights organizations (or "PROs" as ASCAP and BMI, and SESAC, are called). We wrote about the many issues that have held up an extension of the current agreements between radio broadcasters and ASCAP and BMI here. If there is no new deal covering these royalties in place by the end of the year, broadcasters who continue to play these compositions (which will be virtually all commercial radio operators) will need to determine how to pay royalties when the current royalty agreements expire.  The current agreements do not have any automatic extensions in them, as the antitrust consent decrees that bind these companies call for royalty deals of no more than 5 years in duration. Thus, as the old agreements are about to expire, and no new agreements are in place, the flurry of letters has followed to put broadcasters on notice of the current situation.  Of course, none of these letters is entirely clear in spelling out all the issues involved.  So we’ll try to explain some of those issues below. 

Continue Reading Letters From ASCAP, BMI and RMLC – What’s a Broadcaster to Do?