The NAB today announced that it has selected Gordon Smith, a former Republican Senator from Oregon, as its new President.  He succeeds David Rehr, who left the NAB last Spring.  Smith has been practicing law in Washington since leaving the Senate after being defeated in his reelection bid in the 2008 election.  While in the Senate, he served on the Commerce Committee that oversees the FCC.  From a quick on-line search, it appears that he was active in the push for the "broadcast flag" sought by broadcast program producers to identify copyrighted video content broadcast by digital television stations.  Other than his Congressional background, it does not appear that he has other direct broadcast experience.  I would be interested in any knowledge that readers of this blog have about other connections he may have to the broadcast media and any past positions that he has taken on broadcast issues.

Having someone with experience on Capitol Hill was clearly crucial to the NAB given how many controversial issues broadcasters are now facing from Congress and from the FCC.  When David Rehr departed, we wrote about the many issues facing the NAB, most of which are still pending.  These include: 

  • The potential broadcast performance royalty – i.e. the recording industry’s attempts to, for the first time,  impose a sound recording royalty on broadcasters for their over-the-air transmission of music

  • The FCC’s implementation of their White Areas order allowing wireless users to use parts of the TV spectrum – and the appeals and other attempts to overturn or modify that decision

  • The reauthorization of SHVERA, to continue to allow satellite companies to beam local television signals into local markets – where parties are raising all sorts of extraneous issues about carriage rights and retransmission consent, possible changes in TV market boundaries, and changes in the rights of satellite carriers to import distant signals.

  • The FCC’s localism proceeding, which could impose new obligations on broadcasters at a time when broadcast competition has never been so intense – when the marketplace should dictate how broadcasters best serve their communities

  • Potential Congressional effort to bring back the Fairness Doctrine in some form or another

  • A number of FCC proceedings that could affect new methods of advertising meant to combat technological changes – like embedded advertising and product placement that are meant to partially overcome the effects of DVRs.

  • Congressional attempts to regulate advertising and programing – including potential efforts to restrict prescription drug ads, ED treatments, violent programming and programming that promotes unhealthy foods

  • FCC attempts to reign in technical changes in FM stations to allow them to take steps to increase power and to move into larger markets

  • Congressional moves to remove restrictions on LPFM stations on channels that are third-adjacent to full power facilities – and to potentially give these new stations rights to replace existing FM translators

 

Continue Reading NAB Selects Gordon Smith as New President

Last week, the FCC released a decision denying objections to the sale of the NY Times-owned radio station in New York City – objections based on the fears of certain listeners that the sale would mean the loss of the station’s classical music service.  In rejecting the petitions, the FCC relied on the long-standing policy of the FCC not to get into format questions, citing a thirty year old policy statement, upheld by a Supreme Court decision, which found that such review "would not benefit the public, would deter innovation, and would impose substantial administrative burdens on the Commission."  In other words, the Commission concluded some thirty years ago that it had no place in making programming decisions for broadcasters.  It is ironic that this decision was released on the same date as comments were due at the FCC on the MusicFirst petition arguing that broadcasters should be compelled to air specific content – commercials that advocate the adoption of a performance royalty and music from performers who supported the royalty. 

It appears from a review of the Commission’s Electronic Comment Filing System that, while the FCC solicited comments on the MusicFirst petition, MusicFirst itself did not choose to file anything in response to that request.  A few musicians’ groups did file comments, echoing the concerns originally raised by MusicFirst, but with very little specificity to support the implication that there was a nationwide conspiracy of broadcasters to boycott music from royalty supporters.  And, while most of the comments stated that they did not want to abridge the First Amendment rights of broadcasters, they nevertheless went on to say that broadcasters who did not air statements in support of the royalty should have sanctions imposed.  Maybe I’m missing something, but that sure seems to be an invitation to government compelled speech.   The NAB filed extensive comments addressing the First Amendment implications of the complaint. 

Continue Reading FCC Says It Will Stay Out of Programming Decisions – On Same Day MusicFirst Petition Comments Were Due

Last week, the FCC issued several fines to broadcasters for failure to observe some basic FCC rules.  As there many FCC rules to observe, broadcasters should use the misfortune of others who have suffered from these fines as a way to check their own operations to make sure that they meet all of the required Commission standards.  In the recent cases, fines were issued for a variety of violations, including the failure to have a manned main studio, the failure to have a working EAS system, incomplete public files, operations of an AM station at night with daytime power, and the failure to have a locked fence around an AM tower.  This post deals with the issues discovered at the studios of stations – a separate post will deal with the issues at the transmitter sites. 

The main studio rule violation was a case that, while seemingly obvious, also should remind broadcasters of their obligations under the requirement that a station have a manned main studio.  In this case, when the FCC inspectors arrived at the station’s main studio, they found it locked and abandoned.  Once they were able to locate a station representative to let them into the studio, they found that there was some equipment in the facility, but it was not hooked up, nor was there any telephone or data line that would permit the station to be controlled from the site.  The Commission’s main studio rules require that there be at least two station employees for whom the studio is their principal place of business (I like to think of it as the place where these employees have their desks with the pictures of their kids or their dog, as the case may be, and where they show up in the morning to drink their morning cup of coffee before heading out to do sales, news or whatever their job may be).  At least one of the two employees who report to the studio as their principal place of business must be a management level employee, and at least one of those employees must be present during all normal business hours.  Thus, the studio should never be devoid of human life.  The studio must be able to originate programming, and the station must be able to be controlled from that location so that the employees there could originate programming in the event of a local emergency.  In light of these violations and others, the station in this case was fined $8000.

Continue Reading FCC Inspections – Fines for Violations of Rules on Main Studio, EAS, and Public File

The threat from the recent fires to the tower farm on Mount Wilson from which many of the radio and television stations serving the Los Angeles area operate highlight the need for broadcasters to have an emergency plan in the event that some local catastrophe affects their tower site.  The fact that this fire comes near to the anniversary of Hurricane Katrina, where many broadcasters lost power, but where others where able to provide a lifeline to their communities, reminds broadcasters that emergencies can strike anywhere in the country, and broadcasters need to be ready.  The FCC’s Public Notice issued this week, adopting special procedures for stations in the area affected by the fire, demonstrate that the FCC is ready to work with broadcasters to provide service in the time of a widespread disaster, relaxing many of its normal rules.  The FCC has been very good in helping stations in the event of a mass disaster – even helping broadcasters during Katrina cut through the red tape of other agencies in order to assure their continued operation.  But broadcasters need to familiarize themselves with the rules about emergency operations, and be ready to deal with a more isolated disaster that may not receive enough attention for the FCC to, on its own, relax these rules.

One of the rules highlighted by the FCC’s public notice is Section 73.1250(f) of the Commission’s Rules, which allows an AM station to operate at night with its daytime power in the event of an emergency.  As many AMs operate only during daylight hours, and others routinely reduce power at night or use a directional antenna that restricts radiation in directions which may contain significant populations, this ability to continue to operate with daytime power and antenna pattern at night can allow a station to fully serve its community in times of emergency.  However, a broadcaster taking advantage of this provision needs to observe the requirements of the rule.  First, it must notify the FCC that it is operating under this rule within 48 hours of beginning to do so.  If the station causes irreparable interference to another station, it may be forced to curtail such operations. Moreover, the operation must be on a noncommercial basis (apparently to limit any financial incentive for a station to abuse this provision).  And finally, one issue not addressed in the FCC’s public notice about the Southern California fires, the use is only permitted if there is no other full-time service "serving the public need."  Obviously, that last clause is open to interpretation, but it would certainly seem to preclude an AM daytimer co-owned and simulcasting an FM station that covers the same are from suddenly operating at night.

Continue Reading Operating Broadcast Stations in an Emergency – AM Operations at Night, STAs and Other Issues

David Oxenford provided a legal update on Washington issues to the Kansas Association of Broadcasters Annual Convention in Topeka on October 19, 2009.  His presentation – What Broadcasters Need to Know About What to Expect from Washington in 2009-2010 – discussed issues including the proposed broadcast performance royalty, localism and multiple ownership proceedings at the FCC, LPFM changes, and advertising and sponsorship identification policies.

A copy of Dave’s PowerPoint presentation is available here.   

With today’s Federal Register publication of the FCC’s recent Order amending the rules governing FM Translator stations, the date is officially set at October 1st for when AM stations can begin to rebroadcast their signals on FM translators.   Beginning October 1st, the long-standing prohibition on rebroadcasting AM radio on FM translators is off the books and translators are free to pick up an AM signal.  As of that date, no further authority will be required from the FCC in order for an FM translator to rebroadcast an AM station. 

In fact, any existing STAs (Special Temporary Authority) previously granted by the Commission for such rebroadcasts will be canceled as of October 1st, as they will no longer be necessary.  Accordingly, FM translator stations that are currently rebroadcasting an AM signal pursuant to an STA should follow the FCC’s standard procedures and simply file a letter with the FCC indicating the full power station that is being carried.  Just as for the rebroadcast of an FM station, a translator stations must notify the Commission in writing of any change in the station being rebroadcast. 

As we summarized earlier, the rules governing rebroadcasts of AM stations are fairly similar to those for rebroadcasting FM.  The main issue with respect to AM rebroadcasts is that no portion of the 60 dBu contour of the FM translator station may extend beyond the smaller of:  (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station.  Further, AM broadcast licensees with Class D (daytime-only) facilities will be allowed to originate programming on such FM translators during periods when the AM station is not operating.  So daytime-only AM stations can continue operating at night on a fill-in FM translator. 

Continue Reading Beginning Oct. 1st AM Radio Comes to the FM Dial

On October 8, 2009, David Oxenford moderated a panel at the Digital Music Forum West in Los Angeles on the Future of Internet Radio.  Panelists included Kurt Hanson, the publisher of the Radio and Internet Newsletter; Johnie Floater, General Manager of Media for Live 365; and Jim Rondinelli, SVP of Strategic Development at Slacker.  The panel discussed the business of Internet radio, as well as the issue of Internet Radio royalties. 

On October 6, 2009, David Oxenford participated in a panel called "Post-Millennium Analysis: The DMCA in the 21st Century" at the Future of Music Coalition’s Policy Summit in Washington, DC.  Other panelists included David Carson, General Counsel of the US Copyright Office, and Mitch Glazer, Executive Vice President, Government and Industry Relations for the RIAA.  The panel discussed, among other topics, webcasting royalties and the proposed broadcast performance royalty, and the safe harbor provisions of the DMCA for services which allow the posting of user-generated content.

David Oxenford presented on the topic "The View from Washington –Issues Posed by the DTV Transition" at the Columbia Institute for Tele-Information Symposium Digital TV Transitions: DTV Switchover, Mobile TV, IPTV Lessons and Projections, held at Columbia University in New York City on October 2, 2009.  David discussed issues including low power television’s continuing transition, the possible use of TV Channel 6 for radio, DTV reception issues in major markets, and the FCC’s OTARD rules restricting zoning and land use regulations on home television antennas.

On September 25, 2009, David Oxenford moderated a panel at the NAB Radio Show in Philadelphia called "The Day the Music Died – Streaming, The Performance Tax and Other Copyright Issues."  In addition to the music royalties involved in webcasting and the possible broadcast performance royalty, the panel discussed other copyright issues, including the state of the current negotiations between the Radio Music Licensing Committee and ASCAP and BMI over composer’s royalties for broadcast stations, and issues about licensing music for podcast and mobile applications.  Panelists included Bill Velez, head of the Radio Music Licensing Committee, which is conducting the ASCAP and BMI negotiations, and Jack Donlevie, the General Counsel of Entercom, who was involved in the negotiations of the Broadcaster-SoundExchange settlement on Internet Radio Royalties.