Since the election of President Obama and the Democratic majority in both houses of Congress, the fears of the return of the Fairness Doctrine have been highlighted on talk radio, online, by emails and in conversations throughout the broadcast industry.  Even though President Obama had stated that he was not in favor of its return, and even liberal commentators have gone so far as to make fun of conservatives for suggesting that there might be an attempt to bring it back (see our post on Keith Olbermann lambasting George Will for making such a suggestion).  Yet this week the doctrine was back into the national discussion, coming up in a press conference with White House Press Secretary Robert Gibbs (who joked it off without dismissing the rumors) and in a speech by FCC Commissioner Robert McDowell.  What’s all the fuss about anyway?

To really understand the debate, it’s important to understand what the Fairness Doctrine is and what it is not.  We’ve seen many politicians referring to the Fairness Doctrine and the Equal Time Rule in the same sentence, as if they are part and parcel of the same thing. In fact, they are different issues.  Essentially, the Fairness Doctrine simply required that stations provide balanced coverage of controversial issues of public importance.  The Fairness Doctrine never required "equal time" in the sense of strict equality for each side of an issue on a minute for minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was in a station’s discretion, and the FCC intervened in only the most egregious cases.

Continue Reading Fairness Doctrine Back in the News (Part 1) – What’s It all About?

In these challenging economic times, it seems like almost every day we see a notice that a broadcast station has gone silent while the owner evaluates what to do with the facility.  This seems particularly common among AM stations – many of which have significant operating costs and, in recent times, often minimal revenues.  The DTV transition deadline (whenever that may be) may also result in a number of TV stations that don’t finish their DTV buildout in time being forced to go dark.  While these times may call for these economic measures to cut costs to preserve the operations of other stations that are bringing in revenue, broadcasters must remember that there are specific steps that must be taken at the FCC to avoid fines or other problems down the road.

One of the first issues to be addressed is the requirement that the FCC be informed of the fact that a station has gone silent.  Once a station has ceased operations for 10 days, a notice must be filed with the the FCC providing notification that the station is not operational.  If the station remains silent for 30 days, specific permission, in the form of a request for Special Temporary Authority to remain silent, must be sought from the FCC.  The rules refer to reasons beyond the control of the licensee as providing justification for the station being off the air.   Traditionally, the FCC has wanted a licensee to demonstrate that there has been a technical issue that has kept the station off the air.  The Commission was reluctant to accept financial concerns as providing justification for the station being silent – especially if there was no clear plan to sell the station or to promptly return it to the air.  Perhaps the current economic climate may cause the FCC to be more understanding – at least for some period of time.

Continue Reading Steps to Take When A Broadcast Station Goes Silent

The Senate has reportedly once again approved the extension of the digital television transition date from February 17 to June 12 (see Press Release from Senator Kay Bailey Hutchison here).  This approval was necessary as the bill being considered by the House of Representatives is slightly different than the one passed by the Senate on Monday.  Now – it’s back to the House, which failed yesterday to pass that bill by a 2/3 vote (see our post here).  Under the expedited process that was being used, the failure to get a 2/3 vote meant that the legislation did not pass.  The legislation now must got through the normal consideration process in the House, being first approved by committee, then voted on by the full House – with only a majority needed to approve the measure.  The House is going to be out of session tomorrow through Monday, so the committee that now needs to consider the bill could review it next Tuesday, and then it could be voted on by the full House on Wednesday. So if all goes as planned, there could be an extension approved next week.  If the House process somehow gets held up, the President and the FCC cannot act on any extension without action by Congress, as the February 17 date is written into law and can only be changed by a new law.  Given that the transition is only 3 weeks away, and the extension of the transition is still not a certainty, what is a television station to do?

Initially, stations should proceed as if the February 17th deadline will stick as, for now, it is the law. So keep running all the required crawls, snipes and tickers promoting the upcoming termination of analog television.  If an extension is passed, these announcements will only have caused more people to get ready for a transition that will occur sooner or later. But the extension will also allow stations to opt to transition before the new June deadline, and cease their analog operations early.  How do these stations proceed?

Continue Reading Senate Approves DTV Extension Bill Again and it’s Back to the House of Representatives – What’s a Station to Do?

Earlier this week, we wrote about the apparent compromise in the Senate between Republicans and Democrats that would seemingly allow the Digital Television conversion deadline to be delayed from the current date of February 17 that stations have been warning consumers about for years, pushing that date back until June 12.  That compromise legislation passed the Senate on a unanimous vote on Monday, and was considered in the House of Representatives today.  The matter was considered by the House on their "suspension calender" – meaning that it was for legislation not deemed overly controversial that could be passed outside of the normal process of going through consideration by a committee before being voted on by the House.  As such, it needed two-thirds approval of the House to pass.  The vote on the proposed delay was 258 in favor, 168 opposed but, as it did not receive the required two-thirds vote, the bill did not pass.  For the most part, Republicans voted against the bill, and Democrats in favor.

Is this the end of the extension?  No one knows for sure.  The House could still consider the matter under its normal rules, which would require quick consideration by a committee and another House vote – which would only require a majority approval.  But, as the House bill is slightly different than the Senate version, it appears that the Senate would then have to vote once again on the revised bill – probably using an expedited process where only one Senator could block the consideration of the matter.  So television stations are left in confusion as to whether the February 17 deadline will hold, and just what an extension will require  for station operations – with less than 3 weeks to go before this current conversion deadline.  Keep watching for the latest in this very interesting process. 

The oral argument on the Webcasting appeal of the March 2007 Copyright Royalty Board decision setting Internet radio sound recording royalty rates for 2006-2010 has now been set for March 19.  So, if no settlement under the Webcaster Settlement Act (about which we wrote here) is reached before the February 15 deadline set out in that act, the case will go on to the argument, though apparently without NPR, which benefits from the settlement that the Corporation for Public Broadcasting has reached with SoundExchange.  Even with a settlement with all of the webcasters, SoundExchange is still being challenged by Royalty Logic, which wants to be an alternative collection agency for music royalties, so the case will probably go forward.  Royalty Logic is the party which raised the issue of whether the Copyright Royalty Board was properly appointed under the Appointments Clause of the Constitution, an issue that looks to invalidate the entire CRB decision.  Even thought the Court’s argument will be held in March, a final decision will likely not be released for several months after the argument.

The royalty case that resulted in the much lower royalties for Sirius XM is also scheduled for argument in March, the week after the webcasters case. That decision, about which we wrote here, was decided under the 801(b) standard, which takes into account not only the perceived economic value of the music (the "willing buyer, willing seller" standard used in the webcasting case), but also factors involving the public’s interest in receiving music, and the impact on the industry that the royalties will have.  If these cases both go forward, after hearing them in short order, the US Court of Appeals will become the center of the digital music royalty world – at least for a short period of time.  Watch for more as these cases develop.

Last week, the FCC issued several fines to noncommercial broadcasters who had underwriting announcements that sounded too commercial.  In these decisions, the Commission found that the stations had broadcast promotional announcements for commercial businesses – and those announcements did not conform to the FCC’s rules requiring that announcements acknowledging contributions to noncommercial stations cannot contain qualitative claims about the sponsor, nor can they contain "calls to action" suggesting that listeners patronize the sponsor.  These cases also raised an interesting issue in that the promotional announcements that exceeded FCC limits were not in programming produced by the station, but instead in programs produced by outside parties who received the compensation that led to the announcement.  The FCC found that there was liability for the spots that were too promotional even though the station itself had received no compensation for the airing of that spot.

The rules for underwriting announcements on noncommercial stations (including Low Power FM stations) limit these announcements to ones that identify sponsors, but do not overtly promote their businesses.   Underwriting announcements can identify the sponsor, say what the business of the sponsor is, and give a location (seemingly including a website address).  But the announcements cannot do anything that would specifically encourage patronage of the sponsor’s business.  They cannot contain a "call to action" (e.g. they cannot say "visit Joe’s hardware on Main Street" or "Call Mary’s Insurance Company today").  They cannot contain any qualitative statements about the sponsors products or services (e.g. they cannot say "delicious food", "the best service", or "a friendly and knowledgeable staff" ).  The underwriting announcements cannot contain price information about products sold by a sponsor.  In one of the cases decided this week, the Commission also stated that the announcements cannot be too long, as that in and of itself makes the spot seem overly promotional and was more than was necessary to identify the sponsor and the business that the sponsor was in.  The spot that was criticized was approximately 60 seconds in length. 

Continue Reading FCC Fines for Noncommercial Stations Having Underwriting Announcements That Were Too Commercial – Even Where the Station Received No Money

This week, an agreement by Republican Senator Kay Bailey Hutchison, the ranking minority member on the Senate Commerce Committee, to an extension of the DTV transition deadline from February 17 until June 12, was announced.  The delay has been requested so that issues about the distribution of the $40 government coupons to consumers to ease their purchase of converters to allow analog TVs to pick up digital signals so that they will continue to work after the transition date can be resolved; and so that there can be more targeted information about the transition delivered to groups that many feel may not have received the message about the transition. But Congressional Republicans have thus far blocked attempts by the Obama administration to delay the transition, so this agreement by Senator Hutchinson is viewed as a sign that the extension may very well be approved in the near term.  As the transition deadline is only weeks away, if Congress is going to act, it needs to do so immediately, or the effect of any delay will be negligible as the transition will have, for all practical purposes, already occurred.

Most broadcast stations have made plans for the transition – ordering the equipment, scheduling tower crews, coordinating the changes in frequencies with other stations in the same region that may be necessary to accommodate the digital operations.  In some cases, stations have already ceasing their analog broadcasting so that the new equipment necessary to accomplish the transition can be installed, or because these stations will be operating digitally on their analog frequency and have had to allow a tower crew or other engineering support to conduct the work necessary to allow the digital operations on the final channel to occur before the February deadline dates.  Given the limited number of such crews, not all of these final changes could happen on a single date, so stations have been changing to all digital operations now as the final date approaches.  Without Congressional action very soon, the transition will have, for the most part, already occurred.

Continue Reading Senator Hutchison Announces Compromise on DTV Transition Delay Until June 12 – Why Congress Needs to Act Soon

On Thursday, the Obama administration appointed FCC Commissioner Michael Copps to be the Acting FCC Chairman until the administration selects its permanent Chairman, and that person is confirmed by the Senate.  As we’ve written, the rumors are that the permanent Chair will be Julius Genachowski, a former classmate of the President.  But, as far as we know (and according to the White House website’s list of appointments made so far), that appointment has not yet been formally made and sent to the Senate Commerce Committee for the initiation of hearings on the qualifications of the nominee.  Commissioner Copps is the most senior of the remaining three Commissioners (Democrat Jonathan Adelstein and Republican Robert McDowell being the other two remaining Commissioners), and has been an outspoken advocate of more stringent regulation of the public interest performance of broadcasters (see, for instance, our posts here and here).  What will his appointment as interim FCC chairman mean for broadcasters?

Initially, it would seem reasonable to assume that the Acting Chair will be principally occupied with the DTV transition, as least for the next few weeks, and perhaps longer if the pending legislation to delay the transition deadline until June 12 is adopted.  It would also seem reasonable to assume that the Commission, at least for the short term, will not be tackling major regulatory initiatives (like the localism proceeding), until the permanent FCC Chair has taken office.  One of the initial Executive Orders that was issued by the Obama administration was to freeze the actions of administrative executive agencies until the political appointments made by the administration have been confirmed and taken their places, so that the new administration is not saddled by regulations that don’t fit with its overall political agenda.  While many in DC believe that this order does not apply to an "independent agency" like the FCC (which technically does not report to the administration, but instead to Congress), it would be reasonable to assume that the spirit of the order would be followed by the FCC.

Continue Reading Commissioner Michael Copps Named As Acting FCC Chairman – What Does It Mean for Broadcasters?

FCC Chairman Kevin Martin announced that he will be leaving the Commission on Tuesday as the new President is inaugurated, and thus will not be present at the FCC to set any last minute policy for the DTV transition.  In fact, if Martin had decided to stay for the end of the transition, he might well have had to stick around for a while, as there are bills making their way through Congress to delay the February 17 deadline for the transition to digital television.  Senator Rockefeller has introduced a bill that would extend the deadline to June 12, which Senate Republicans blocked last week, though it will reportedly be reintroduced this week.  At the same time, the three remaining Commissioners have all released letters that indicate that there are significant transition problems that need to be resolved before the transition deadline.  While there are those who wonder if the delay will really solve the problems that may exist – the movement is in the direction of a delay.

The letters from the Commissioners are most interesting.  First came a letter from Commissioner McDowell, not directed to Congress, but instead to Chairman Martin, publicly asking for information about the FCC’s DTV phone bank to answer questions from consumers about the transition.  According to the McDowell letter, he was unable to get information about the status of upgrades to the system to handle the expected influx of calls at the end of the transition.  McDowell also complained about calls that were not answered at all, or which had long wait times, when consumers called – wait times that often resulted in connections with a voicemail system.  And he raised questions about the failure of the phonebank to be open on weekends.  It has now been announced that IBM has been hired to man the phonebank, perhaps answering some of the questions Commissioner McDowell raised in his letter.

Continue Reading Kevin Martin Departs as Congress Looks at June 12 DTV Transition Deadline – While Remaining Commissioners Write Letters About Transition Problems

The term "Super Bowl" is a trademark owned by the National Football League, and it is protected very aggressively. What does that mean?  The biggest no-no of all is to use the term "Super Bowl" in any advertising or promotional announcements that are not sanctioned by the NFL.  This prohibition includes sweepstakes and contests as well.  Advertisers pay high licensing fees to the NFL for the right to use the term "Super Bowl" in their advertising.  You will almost certainly hear from the NFL’s attorneys if you use the term in advertising without explicit authorization from the NFL.  So no "Super Bowl sales" in your ads – and don’t refer to your station as the "Super Bowl Authority" in your promotional statements.  These restrictions explain why you often hear it referred to as "The Big Game."  But this restriction does not mean you cannot utter the words on air under any circumstances. 

There is a court-created trademark concept known as "nominative fair use."  Under this concept, trademarks can be used when necessary under certain conditions.  First, the mark must not be readily identifiable in any other way.  For example, you do not have to refer to the Pittsburgh Steelers as "the professional football team from Pittsburgh."  Secondly, you can only use the mark to the extent necessary to identify it.  Repeated gratuitous use would cross the line – for instance if you repeatedly state that your station is "the place to hear everything about the Super Bowl."  And third, you cannot do anything to suggest a false connection or sponsorship arrangement.   What does this really mean?  It means that DJs can use the term "Super Bowl" editorially in discussing the game on air (but not in a way to imply that the station has a connection to the game, or not in a repeated way analogous to a station slogan or positioning statement).  It means that news stories about the game can refer to the "Super Bowl."  The NFL will not consider such uses to be trademark infringement so long as the use is reasonable.  In fact, from an editorial perspective, the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.

Continue Reading Don’t Use “Super Bowl” in an Ad Without Permission – But How About in Other Programming?